English court vocabulary – What are suits, petitions, complaints and motions?

A petition or complaint is a document used to initiate a civil action to obtain relief in a court of law. In practice, the differences between petition and complaint are purely stylistic and a matter of habit and history.

Normally, a fee is charged for filing a petition or complaint.

If court proceedings are initiated by a complaint, the defendant must respond with an answer. If court proceedings are initiated by a petition, the document that the opposing party to the proceedings must file to challenge the granting of the relief requested in the petition is called a response or objection.

Broadly speaking, in contexts where the primary relief sought is in the courts of the English common law system civil proceedings are started by a complaint (at least in American practice), such as a complaint for breach of contract or damages in tort (also called a civil action).

The term petition, on the other hand, is most often used to refer to an application for relief in certain cases related to historical equity; these often do not involve equitable relief or there is no clear winner or loser. For example, a petition initiates probate proceedings, guardianship or conservatorship proceedings, bankruptcy proceedings, divorce proceedings, an application for a change of name or proceedings to incorporate a municipality.

It is also standard practice to refer to the first procedural document seeking relief from a court as a petition if the relief sought is a writ. For example, one files a Petition for Writ of Certiorari, (petition for leave to appeal), a Petition for a Writ of Habeas Corpus (petition for a writ of habeas corpus ), and a Petition for a Writ of Mandamus (petition for a writ of mandamus to perform or refrain from performing an act).

In this context, a “writ” is a court order directed at a person who is not a party to a lawsuit, instructing that person (who is usually, but not always, a government official) to do something.

Notwithstanding this general rule, however, in cases involving equitable damages, possession of real property (i.e. evictions), and possession of certain chattel paper (including a claim for surrender), the proceedings are generally commenced by complaint, even if some of the remedies awarded under the judgment are writs (e.g. a writ of attachment or execution in a case seeking a judgment for payment of a specific sum of money; an order in favor of the prevailing appellant restoring the situation that existed before the judgment in the first instance in a case involving the taking of possession of real property; or a writ of attachment and seizure in cases involving the taking of possession of chattels).

In some cases, such as actions for reconveyance of title to real property or actions alleging breach of fiduciary duty, the introductory document is inconsistently sometimes referred to as a complaint and sometimes as a petition.

A small misinterpretation in the translation of a legal text can lead to major legal and financial problems. For example, a mistranslated contract term can lead to one party not understanding their contractual obligations correctly, which in the worst case scenario can lead to a breach of contract. The consequences range from expensive legal proceedings to long-term business damage.

Automated translation tools such as Google Translate are not an option for legal translations, as they do not recognize the subtle nuances of legal terminology. Only an experienced legal translator can ensure that all legal terminology is used correctly and in line with the respective legal context.

General rule

The term motion refers primarily to an oral or written application filed in court asking the court to do something in the course of a civil proceeding after the proceedings have been initiated by a complaint or petition.

Usually but not necessarily, motions are filed by the parties to the proceedings. For example, a party who is not yet a party to the action may file a Motion to Intervene to be joined as a party to the action; other examples include a Motion to Quash or a Motion for Protective Order to limit the scope of a subpoena served on the non-party to the action or to have it declared invalid.

Motions are filed, for example, to add a party, dismiss a case, amend a previously filed document, request an extension of time, exclude evidence at an upcoming trial or hearing, change a case from a jury trial to a non-jury trial case, change a trial date, or other matters requiring court action.

Applications for subsequent legal protection in an ongoing case and subsequent legal disputes concerning custody and child maintenance in divorce cases are also referred to as motions.

A pleading that does not contain a motion to the court is often referred to as a notice or status report or return (a return is a report to the court that something that should have happened in a court-supervised proceedings actually did happen). There are also other terms used for this.

Normally, no fee is charged for filing a motion in ongoing proceedings.

Criminal cases are not lawsuits

The term suit or lawsuit is normally reserved for civil proceedings and is not used for criminal proceedings brought “in the name of the people”. The initiation of criminal proceedings “in the name of the people” is often referred to as prosecution.

Motions

The term motion is used in criminal cases in the same way as in civil cases. As in civil law, the term motion is used for post-judgment motions for relief in an ongoing criminal case, such as a Motion to Seal (motion to seal a record in an ongoing criminal case) or a Motion to Set Aside a Verdict (motion to set aside a judgment after it has been rendered).

As in civil matters, there are also some proceedings in criminal matters that can be initiated by a motion. These are usually narrowly defined special proceedings that are to be decided with the procedural characteristics of an application in another matter and not with the procedural characteristics of fully-fledged criminal proceedings. Sometimes these requests for the initiation of new special proceedings in criminal cases are not referred to as motions but as applications.

For example, an application to a court for a criminal search warrant is often referred to as a Motion for Issuance Of A Search Warrant as well as an Application For A Search Warrant.

Petition

In criminal law practice, the term petition is usually reserved for a petition for a writ, such as a Petition for a Writ of Certiorari or a Petition for a Writ of Mandamus.

Complaints versus Indictments in criminal law

In criminal law practice, however, the term complaint is used differently than in civil law practice. Essentially, a distinction is made between a complaint, which is a document used by a prosecutor (or, where permitted by law, a non-lawyer such as a police officer or a victim of a crime) to initiate criminal proceedings against a defendant, and an indictment, which is a document issued by a grand jury to initiate criminal proceedings against a defendant.

A document initiating the prosecution without a jury is sometimes called an information or complaint and information.

Serious criminal offenses prosecuted in U.S. federal courts must be initiated by an indictment, not by a complaint. However, in most states (especially in the western United States), a prosecutor can initiate almost any type of criminal case through a complaint, with criminal cases initiated by grand jury indictment being the rare exception and reserved primarily for organized crime, cases involving politicians or having political implications, and cases against law enforcement officers.

Generally, in criminal cases brought by indictment, there is no right to a preliminary hearing before a judge to determine whether the criminal allegations are supported by probable cause, whereas in most serious criminal cases brought by criminal complaint, there is a right to such a preliminary hearing before a judge.