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The updated Rules of Court made use of the term “Litigious Motion” to describe motions that needed to be heard before they are resolved by the court.
“Litigious” somehow feels and sounds off. We are used to hearing and using “Litigated Motion”. In fact, the Supreme Court in several decided cases made use of the term “Litigated Motion”.
“Litigious” pertains to the propensity to litigate in settling disputes. “Litigated”, well, it also sounds off if you come to think of it as it tends to refer to something that has been heard in court (past tense) -which makes “litigable” a better term. That is probably the reason why the drafters of the new Rules opted to use the word “litigious”.
But, as mentioned earlier, “litigated motion” has gained acceptance. Even the Merriam-Webster dictionary has it as an entry.
I guess this is another case of Legal English being unnecessary hard. If it were up to me, I will just describe motions requiring a court hearing as “Triable Motions”. What do you think?