Tuesday, August 12, 2008

Notice of hearing

In litigation, a notice of hearing is very important.
In fact it is indespensable.
The rules of court require that for every motion filed by a party, there must be a hearing so that the adverse party can also be heard before the court grants or denies the motion.
First, a motion is anything under the sun that a party asks or requests from the court to give or grant, other than the favorable judgement sought by the party.
For instance, if a party wants to go to the comfort room, he motions the court.
But of course, going to the comfort room is not litiguous or subject to legal debate that one can just orally request this from the court.
The common motions filed in court are motion to cancel hearing, motion to dismiss the case, motion to resolve, or just anything a party requests the court.
The rule is that when a motion is filed by a party, it must be set for hearing where all parties can be present to deliberate, comment on, or oppose the motion.
That is why a notice of hearing to the other parties is something that cannot be dispensed with.
When a party files a motion, at the end of the written motion, he notifies the other parties by writing: "Please be notified that I am setting this motion for hearing on August 1, 2008 at 9:00 a.m. for approval of the court."
A common mistake by some parties is that it directs the clerk of court, not the parties to set the hearing.
Some parties filing a motion write to the clerk: "Please set the hearing of the above motion on August 1, 2008 at 9:00 a,.m. for the approval of the court."
This is not a notice of hearing contemplated by the rules.
This is nothing but a written instruction to the clerk to set a hearing, not a notice of hearing.
The Supreme Court has ruled that instructions to the clerk of court, not addresed to the parties are not notices of hearing which merit attention of the court.
The Supreme Court ruled that such kind of notices of hearing are a mere scrap of paper.

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