Karen Ciano, BridgeTower Media Newswires
One great pleasure of state bar membership is participating in an online community where lawyers can ask each other questions. Recently a member called out a phrase: “The defendant motioned to dismiss on all three claims.” She inquired of the group, “Isn’t the correct grammar ‘The defendant moved to dismiss’? I ask because I think I have seen ‘motioned’ a couple of times recently and fear I am behind the times grammatically.”
Fortunately for us all, the times aren’t a-changin’ quite that much.
Although the community’s esteemed founder identified a handful of instances in the state law library’s searchable archive in which a certain appellate court used motioned in the sense of “asked the court for relief,” he noted that such usage had occurred only once in a published opinion, and that the state’s highest court had never used it. (I took the liberty of adding to his search in a subscriber database and found a few more instances earlier in time, but none by the highest court. Ever.)
Motioning is what people do with their hands to communicate nonverbally when they can’t communicate verbally, usually just before someone gets in trouble. The trooper motioned for defendant to stop. The switchman motioned toward the track ahead. My mother motioned that I should turn down the music. The driver behind me motioned at me to change lanes. Presumably writers use motioned when they can’t (or won’t) describe the hand gesture in question.
But motioning the court? No. In court I might motion to my client to stand up, but when I ask the court to take judicial action, I move the court to do so. (It may sound weird in ordinary conversation, but trust me: courts expect and prefer to be moved rather than motioned. And if any courts reading this column disagree, I trust they will advise me.) As our community’s founder observed, motioned “is just gunk clogging clear writing.”
Hear, hear.
Wait, you say. You’re making a motion; why isn’t that motioning?
Because in modern usage (the last two centuries, give or take), move is a verb and motion is a noun. Compare these two grammatically correct sentences: I moved the court (subject-verb-object). I made a motion to the court (subject-verb-object-prepositional phrase). Is the second wordier and needlessly complex? Arguably. But they’re both correct. I motioned the court is not.
To avoid the “I-do-it-so-it-must-be-right” trap, I did a little more research on motioned, and discovered (surprise) that there’s backstory. The curious incident of motion as a verb is not much dealt with in legal writing books, so I ventured into the oldest and newest resources I could find (respectively the Oxford English Dictionary and Google’s Ngram viewer). And what do you know: both move and motion have a long history of swapping places, sharing multiple definitions, and serving as both nouns and verbs (thanks again, English language). Once upon a time — in the 16th and 17th centuries — motioned was used as a verb to mean “to propose, move, bring forward,” as in to a court or a deliberative assembly. (The courts of that time may have been royal courts, not courts of law, but still.) Then in the 18th century, moved moved in and edged out motioned. The earliest use of moved in the legal sense of “an application made to court or judge by a party to an action or his counsel, to obtain some rule or order of the court necessary to the progress of the action,” occurred in 1726.
Google Ngram viewer confirms that, as of today, motioned the court has been well and truly pruned out of the tree of legal language. After 1800, motioned the court all but disappeared in printed books; motioned to dismiss and motioned for judgment aren’t even found in the database. Meanwhile, moved the court has enjoyed variable but generally increasing popularity.
Just for comparison, I detoured over to the online searchable Roberts’ Rules of Order (RulesOnline.com) to see whether perhaps motioned was borrowed from parliamentary procedure. But no relief there: the current rules consistently use moved to indicate making a motion (and if any parliamentarians out there disagree, I trust they will let me know).
Motioned the court is dead. Should we bring it back?
A fair question. There’s been a bit of scholarly interest in reviving obsolete English words; my fellow word nerds may be familiar with Paul Anthony Jones’s Haggard Hawks project (haggardhawks.com), which offers truly obscure words and their etymologies for perusal and enjoyment. The word-revival movement gained international attention after one head of state recently called another a “dotard,” and now public radio can’t seem to get enough lists of words like overmorrow, fortnight, and anon.
Yet there appear to be no accepted criteria for when an obsolete word actually deserves a reboot. I will propose my own: the revived word, like any new word, must serve a purpose. It must either allow us to say something new, or to say something familiar in a way that is new or improved (shorter, clearer, funnier, whatever).
In my view, motioned offers no improvements on moved. It means exactly the same thing, takes longer to say, and prompts me to envision a lawyer waving her hands around in front of the judge’s bench as if to prevent a car accident or a train wreck. Which has a momentary appeal… but on balance, is more likely to add confusion than take it away. So in 2018, I will resolve to spell relief the simple way: M-O-V-E-D.
Happy new year!
