Ambuscatory Motion Practice

Have you ever lost a motion that you didn't even realize was pending? Maybe opposing counsel didn't realize it was pending either. All too often important issues are decided on the spur of the moment, without proper notice, based upon an oral motion or even a sua sponte ruling.

Those of you who believe that rules is rules will be disappointed to learn that the Tennessee Court of Appeals recently upheld a sua sponte ruling on an oral motion. Putting aside the issue of how a court can rule sua sponte on a motion, the Court of Appeals opinion offers a little something for everyone. The opinion acknowledges that an unnoticed oral motion is inconsistent with the rules of civil procedure. And the court bases its ruling in part upon the appellant's failure to explain how he was prejudiced by the trial court'’s ruling. On the other hand, the opinion emphasizes that the rules are intended to secure the just, speedy, and inexpensive resolution of disputes -- emphasis on speedy and inexpensive. The court also bases its opinion in part upon its conclusion that the trial court's ruling was probably correct.

So does this opinion mean (1) unnoticed oral motions are prohibited unless they are meaningless, or (2) unnoticed oral motions are OK as long as they are fast, inexpensive, and reasonably well justified? It depends which side of the case you are on.