I've seen all of these terms being thrown around to describe overlapping concepts. I believe a suit asks the court for a monetary judgment whereas a "petition" just asks the court for an order for action. Is this correct? What's the difference between the other ones? Is there a specific type of form / process that needs to be used/followed to file each type of action in court?
asked Jan 11, 2023 at 7:13 601 6 6 silver badges 19 19 bronze badgesSuits
The term "suit" is uncommon and verges on colloquial. It is a shortened version of the term "lawsuit" a.k.a. civl action a.k.a. court case. The term "lawsuit" refers to the entire case that is initiated by a Petition or a Complaint, rather than just a single document. The term "lawsuit" excludes court cases that are criminal and brought in the name of "The People."
When one "files a lawsuit" or "files suit" one initiates a court case by filing a Complaint or a Petition with a court.*
Petitions v. Complaints
A Petition and a Complaint are each documents used to initiate a civil action (sometimes called a lawsuit or a court case) seeking some kind of relief from a court. For all practical purposes, the differences between Complaints and Petitions is purely stylistic and a matter of custom and history.
Normally there is a filing fee for filing a Petition or Complaint.
When a court case is commenced with a Complaint, the document that someone who is sued must file is called an "Answer". When a court cases is commenced with a Petition, the document that someone who is a party to the case must file to dispute that the relief requested in the Petition be granted is called a "Response" or an "Objection".
When Is Complaint v. Petition Terminology Used
Roughly speaking, the initial document is almost always called (in U.S. practice at least) a "Complaint" in contexts where the primary relief sought would have been for causes of action brought in courts of law in the English common law system before the merger of law courts and equity courts a.k.a. courts of chancery. See generally, this Law.SE answer.
For example, the document initiating a lawsuit (a.k.a. civil action) for breach of contract, or for money damages in tort (e.g. a personal injury lawsuit), are almost always described as a "Complaint."
The term "Petition" is most often used to describe an initial document seeking relief from a court in particular kinds of cases associated with historical equity relief and often don't seek money damages or don't have a clear winner or loser.
Petitions are used, for example, to initiate a probate case, a guardianship or conservatorship case, a bankruptcy case, a divorce case, a request to change your name, or a case seeking to incorporate a municipality or special district.
It is also customary to call an initial document seeking relief from a court a "Petition" when the relief sought is a "Writ". So, for example, one files a Petition for Writ of Certiorari, a Petition for a Writ of Habeas Corpus, and a Petition for a Writ of Mandamus.
A "Writ" is a court order directed to someone who is not a party to a lawsuit directing that person (usually, but not always, a government official) to do something.
Notwithstanding this general rule, however, in cases seeking money damages, possession of real estate (i.e. evictions), and possession of specific items of personal property (a.k.a. "replevin" actions or "claim and delivery" actions), cases are generally initiated with a document entitled a "Complaint" even though some of the post-judgment relief awarded will consist of writs (e.g. a writ of garnishment or a writ of execution in a case seeking a money judgment, a writ of restitution in a case seeking possession of real property, and writs of attachment and writs of assistance in cases seeking possession of personal property).
In some kinds of cases, such as lawsuits to quiet title to real property, or lawsuits alleging breaches of fiduciary duty, the initiating document is sometimes called a "Complaint" and sometimes called a "Petition" in an inconsistent manner.
The Federal Rules of Civil Procedure calls the document used to initiate a civil action a "Complaint" and many state rules of civil procedure follow the lead of the Federal Rules of Civil Procedure. In those jurisdictions, the term "Petition" is often used to refer to court cases that aren't governed by the ordinary rules of civil procedure. But this distinction isn't followed strictly. Some kinds of Petitions and Motions that initiate civil actions are still governed in whole or in part by the ordinary Rules of Civil Procedure.
Application v. Petition
Also, sometimes the word "Application" is used in lieu of the word "Petition", in part, because it is seen by reformers as a more "plain English" and less technical word than "Petition".
The term "Application" rather than "Petition" is also sometimes used, in part, to avoid confusion with the more general non-legal sense of the word "Petition" to mean an request made outside the legal system to a public official or other individual requesting that they do something, or a document signed by numerous people seeking to allow a candidate to run for office or allowing a citizen's initiative to be placed on the ballot in an election, for example.
The General Rule
A "Motion" predominantly refers to an oral request or written request made to a court requesting that the court do something during the course of a civil action a.k.a. lawsuit a.k.a. court case after the case was initiated with a Complaint or a Petition.
Motions don't necessarily have to be filed by parties to the case, even though motions are usually filed by parties to cases.
For example, a non-party to a case could file a "Motion to Intervene" to be made a party to the case, or could file a "Motion to Quash" or a "Motion for Protective Order" to seek to limited the scope of, or invalidate, a subpoena served upon a non-party.
Motion are filed, for example, seeking to add a party, to dismiss a case, to amend a document previously filed in the case, for an extension of time to do something, to exclude evidence at an upcoming trial or hearing, to convert a case from a jury trial case to a non-jury trial case, to change a trial date, or any manner of other things that require court action.
Requests for post-judgment relief in an existing case and post-judgment litigation of custody and child support matters in divorce cases are also called Motions.
A court filing that doesn't ask a court to do something is often called 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 process actually happened). Other terms are used as well.
Normally, there is not a filing fee for filing a Motion in an existing case.
Motions That Start Court Cases
But because the law is not entirely consistent in its terminology, the term "Motion" is in rare instances used to refer to a document used instead to initiate a new court case concerning a very narrow special proceeding in a court. For example, in Colorado, where I practice, some of the court cases that are initiated by a Motion include:
The basic notion is that in the kind of court cases initiated by a Motion rather than a Petition or a Complaint, the intent is that the entire court case should involve a procedural process similar to the process of resolving a single isolated motion within a larger court case, as opposed to the full legal process involved in an entire court case initiated by a Complaint or a Petition.
Another term used to initiate a court case, often a limited special proceeding without involving the procedural incidents of a full fledged civil lawsuit is an "application."
Normally there is a filing fee for filing a Motion that initiates a new court case.
Criminal Cases Are Not Lawsuits
The term "suit" or "lawsuit" is normally reserved for civil cases and is not used to refer to criminal cases brought in the name of "The People". Often a criminal case brought in the name of "The People" is called a "Prosecution".
Motions
The term "Motion" is used the same way in criminal cases as it is in civil cases. As in civil cases, the term Motions is used for post-verdict fillings requesting relief from a court in existing criminal cases, such as a Motion to Seal a record in an existing criminal case, or a Motion to set aside a verdict after it is entered.
Also, as in civil cases, there are some criminal cases that can be initiated via a "Motion" which are generally narrow special proceedings intended to be adjudicated with the procedural trappings of a motion filed in another case rather than the procedural trappings associated with a full fledged criminal case. Sometimes these filings to initiate new special proceedings in criminal cases are called "applications" rather than "motions".
For example, a request to a court to issue a criminal search warrant would often be called a "Motion for Issuance Of A Search Warrant" or an "Application For A Search Warrant."
Petitions
In criminal practice, the term "Petition" is normally reserved for an application for a Writ, such as a Petition for a Writ of Certiorari, or a Petition for a Writ of Mandamus.
Complaints v. Indictments In Criminal Cases
Criminal law practice uses the term "Complaint" differently than in civil practice, however.
In criminal law practice, the key distinction is between a "Complaint" which is a document commencing a criminal prosecution against a criminal defendant filed by a prosecutor (or where the law authorizes it, by a non-lawyer such as a police officer or crime victim), and an "Indictment" which is a document commencing a criminal prosecution against a criminal defendant issued by a grand jury.
A document initiating a criminal prosecution without using a grand jury is also sometimes called an "information" or a "complaint and information".
(N.B. the State of Colorado is misclassified in the map above and does not exclusively use grand jury indictments to commence felony cases. It should be blue and not gray in the map above.)
Serious crimes prosecuted in federal courts, and in some (mostly Eastern U.S.) states have to be commenced with an indictment rather than a complaint. In most states (mostly in the Western U.S.), however, a prosecutor can initiate almost any kind of criminal case with a Complaint, and criminal cases initiated by grand jury indictments are the rare exception reserved mostly for organized crime cases, cases involving politicians or with political implications, and cases against law enforcement officers.
Generally speaking, in criminal cases commenced by an indictment, there is no right to a preliminary hearing to determine if the criminal charges are supported by probably cause before a judge, while there is generally a right to a preliminary hearing for that purpose before a judge in most serious criminal cases commenced with a criminal complaint.
