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People's Law Guide


Tips For Trial Lawyers: The "Speaking Motion" Trap by

Michael Winer, Esq


Some of my articles have come from private suggestions from the members of the judiciary. Often, they see lawyers fall into traps, but are ethically bound from drawing their attention to it. This article expresses one of our of our most distinguished judge's concerns.

Many litigators have heard about "speaking motions", but my experience tells me that few really know what they are or how they can cause trouble. For those unfamiliar with a "speaking motion", it is simply a motion that alleges facts that are a predicate for the relief sought. City National Bank of Miami v. Simmons, 351 So.2d 1109 (Fla. 4th DCA 1977).

There is nothing inherently wrong about making a "speaking motion", unless the Court at trial has ordered otherwise. However, one must remember that if the facts contained in the motion are not established by the record, for example by stipulation, admissions in the Answer or in filed depositions, the movant is saddled with the burden of proving the facts by introducing evidence before the Court can grant the requested relief. Leon Shaffer Golnick Advertising v. Cedar, 423 So.2d 1015 (Fla. 4th DCA 1982.

As noted by Judge Glickstein in Cedar, id., at 423 So.2d 1017: " he practice we wish to see terminated is that of attorneys making unsworn statements of fact at hearings which the trial courts may consider as establishing facts. . . . Trial judges cannot rely upon unsworn statements as the basis for making factual determinations; and this court cannot so consider them on review of the record."

On more than one occasion, the Judge whom I spoke with about "speaking motions" felt frustrated by denying them; but the law compelled him to do so since the movant had failed to introduce evidence, even in the form of an affidavit, to support the facts alleged in the motion. The Judge confided in me that, but for this omission, he would have granted the "speaking motion".

Mr. Winer invites comments and can be contacted at (954) 759-4500.

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