Suppose you find yourself involved in litigation in Fairfax County, Virginia, and you want the court to take some kind of action. Perhaps you want the judge to order the plaintiff to attach a copy of the contract to the complaint. Maybe it’s a libel case and you want to ask to court to dismiss the case for failing to plead the requisite elements of defamation. Or maybe the statute of limitations has passed and you want the court to dismiss the case for that reason. If you want the court to do something, you need to file a motion. And the procedures for bringing that motion to the attention of the court differ from county to county.
This article deals with the local rules in Fairfax County only. (Technically, they’re not “rules,” but “guidelines.”) Procedures in neighboring jurisdictions like Loudoun County, Prince William County, and Alexandria differ slightly but share most of the basic framework. If there is sufficient interest among the subscribers to this blog, I may cover those jurisdictions in future posts. This is also not a tutorial about how to draft persuasive motions. Rather, it is intended as a guide to the procedural considerations in bringing your motion before the court. Of course, if you are an out-of-state attorney representing a client with a pending case in Fairfax County, your best best is to retain and work with local counsel.
First of all, if you are considering filing a dispositive motion such as a demurrer, plea in bar, or motion to dismiss, you should file it as soon as possible. The court will automatically schedule a scheduling conference and it does not like to burden its docket with reserved trial dates if the case is going to be dismissed. So do the court a favor and argue any dispositive motions right at the outset of the case, preferably before the date of the scheduling conference.
The next consideration is whether there really is a need for court involvement. Before filing any motion, you should check with the other side to determine whether there is any room for agreement or compromise. Perhaps if you point out to the plaintiff that she neglected to include a couple of key elements of her claim in her complaint, she will acknowledge her oversight and agree to revise her pleading without the necessity of having to file briefs and attend hearings. If the subject of your planned motion cannot be resolved by agreement, then at least attempt to determine a mutually agreeable hearing date before proceeding to schedule a hearing.
The key to bringing your motion to the attention of the court is a document called a praecipe. After you’ve downloaded a copy of the Fairfax Motions Day Praecipe, complete it (preferably electronically, using Adobe Acrobat), and print it on yellow paper. The yellow paper is what grabs the attention of the clerk, the person who will be opening the mail and processing the paperwork. It is the clerk who arranges for your motion to be scheduled for oral argument, and it is the yellow praecipe that asks the clerk to do that. If your motion is not scheduled for oral argument, it will simply be filed and forgotten. The judge will likely never read it or issue a ruling. You need to request oral argument.
One of the boxes you’ll have to check indicates whether your motion requires two weeks’ notice. This has to do with how much advance notice you need to give the other side. Most motions require that you notify the other side of the hearing date at least two weeks in advance. Some simpler motions require just one week’s notice. Complex motions requiring extensive briefing generally require several weeks’ notice. Motions to reconsider do not get scheduled for a hearing at all. Consult this flow chart for a handy cheat sheet about what is required for different types of motions. The basic rule is that if you or the other side will want to file a brief or memorandum in support of (or in opposition to) the motion, the motion will require at least two weeks’ notice.
On that note, the court’s preference is to have separate documents serve as the “motion” and the supporting “memorandum.” The motion states the relief you are requesting, and the memorandum contains your legal argument and authorities. The court will view with disfavor any attempt to circumvent the two-week requirement by filing only a motion but filling that motion with legal argument. If you want to support your motion with legal argument (which will usually be the case), you’ll need to put your motion on the two-week docket.
Also note that memoranda are limited to just five pages. Pages should have one-inch margins all around and the text should be double-spaced and written in a 12-point font. Here again, the court has seen all the methods people might be tempted to use to cheat (e.g., reducing the margins, decreasing the font size) and you can expect to get an earful from the judge at the hearing if you employ any of these methods. If you really need to go beyond five pages, the court offers a special procedure to go before a “calendar control” judge who can grant special permission to write and file a longer brief. Just know that permission is not granted automatically. The mindset of most Fairfax judges is that most legal arguments can (and should) be distilled to no more than five pages.
Another box on the praecipe form asks you to indicate whether a particular judge needs to hear your motion. This is not an invitation to shop for favorite judge. With occasional exceptions, Fairfax does not assign specific judges to particular cases; several different judges may issue rulings in your case prior to trial, and it’s quite possible that none of those judges will preside at trial. So don’t write down a judge’s name unless one of the specified criteria is met (e.g., the judge in question has directed you to do so, or the matter is on the docket to present an order that specific judge made previously).
Fairfax County has Motions Day every Friday. So if your motion requires two weeks’ notice, you’ll need to ensure the opposing party has notice of the hearing date two Fridays prior to the hearing date. The court will expect you to have filed the paperwork and notified the other side by 4:00 p.m. two weeks prior to the hearing date. You do not have until midnight as you do in some other jurisdictions.
Motions Day is divided into three separate time zones. Your standard contested two-week motion needs to be set for 10:00 a.m. If you have an uncontested motion or a consent order, there is a 9:00 “without a judge” docket at which you can hand up the order to a law clerk. Note that if you have everyone’s signatures on the consent order, there’s no need to appear at all; you can just mail the signed consent order to the clerk’s office and they will route it to a judge for signature. There is a separate 9:00 “with a judge” docket for uncontested motions that require the presentation of evidence or which are too time-sensitive to merely file with the clerk (e.g., consent motions that require immediate relief). Note that if you’ve requested a specific judge, you’ll need to put your motion on the 10:00 docket even if the matter is uncontested. Finally, there is supposedly an 11:30 docket for family-law cases, though I’ve never been there myself as I try to steer clear of divorce cases.
If you are on the receiving end of a motion filed in Fairfax County Circuit Court, you will typically want to file an opposition brief, or “memorandum of points and authorities in opposition to” the motion the other party has filed. Ideally, you should file an “Opposition to Motion” form with that. It’s like the praecipe in that its function is simply to alert the clerk that your paper is intended to be read in connection with a pending motion and that a hearing has already been scheduled. This will ensure your opposition brief is brought to the attention of the judge prior to the hearing. It should be printed on pale green paper.
If you are the moving party and have received an opposition brief, save your rebuttal arguments for the hearing. Do not file a reply brief as you might do in federal court. As a general rule, reply briefs are not permitted in Fairfax Circuit Court.
To find out which courtroom your hearing will be in, visit the docket assignment page the day before the hearing. This information will also be posted on electronic bulletin boards throughout the court complex.
At last, the hearing date has arrived! Assuming your motion is a standard motion requiring two weeks’ notice, the hearing will be limited to 30 minutes. That means you’ll have 15 minutes (at most) to argue your position, and the other side will have 15 minutes. Before your case is called, the judge will ask you for a time estimate. If you say “an hour, please, Your Honor,” the judge will know you are either not an attorney or are from out of town. And if you say “30 minutes” when the only issue to be resolved is whether a particular objection to a single interrogatory is valid, the judge will not be pleased. So plan on keeping your argument brief and to the point. Don’t use the entire 15 minutes unless you’ll really need it.
A final word of advice: assume you will win, and bring a proposed order with you to court. That way, if you do win, all you’ll need to do is hand up the order and it will be entered on the spot. If the ruling varies from your proposed order, go out in the hall and mark it up or write a new one by hand, then go back in and deliver it to courtroom deputy. Do not leave the courthouse without submitting a proposed order.