This page is continued from Every Type of Motion >>>> Pretrial Motions:
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motion to sever:
(1877)
1. Civil procedure. A party’s or defendant’s request to have all or some of its claims or defenses tried separately from those of coparties or codefendants. Common grounds for the motion are that the claims & counterclaims are so different that they should logically be heard separately, that the case involves different
causes of action that should logically be tried separately, that prejudice to a party will result from trying the claims together, or that a party has been improperly joined.
Excerpt from Gerald A. Kafka & Rita A. Cavanagh’s Litigation of Federal Civil Tax Controversies:
“A motion to sever is made to separate parties or issues
included in a single cause of action. Typically, such a motion is made where severance will result in a more efficient disposition of the case. For example, one party or claim may be subject to a jurisdictional defense not applicable to the remainder of the action. A party moving for severance should be prepared to demonstrate with particularity the grounds supporting the motion. . A motion to sever is favored by the court ‘when it allows one significant issue in a multi-issue case to be resolved by the court in a manner that encourages settlement of the remainder of the case. For example, where the resolution of a statute of limitations issue or other jurisdictional question as a preliminary matter can reduce the likelihood of further trial on the substantive issues, the motion should be favorably considered. Conversely, where the parties are unable to represent that resolution of a single issue may significantly affect the resolution of the remaining issues, a motion to sever will be less favorably considered.” [2]
motion to sever:
(second definition)
2. Criminal procedure. A defendant’s request to have all or part of the case against the defendant tried separately from that of the codefendants. – aka (in both senses)
motion for severance.
Excerpt from the U.S. War Department’s A Manual for Courts-Martial:
“A motion to sever is a motion by one of two or more
joint accused to be tried separately from the other or others… The more common rounds of motions for severance are that the mover desired to avail himself on his trial of the testimony of one or more of his coaccused, or of the testimony of the wife of one, or that the defenses of the other accused are antagonistic to his own, or that the evidence as to them will in some manner prejudice his defense.” [3]
Related Terms:
Byrd affidavit – in criminal cases, a defendant’s affidavit in support of a motion to sever on the grounds that a codefendant will give exculpatory testimony for the defendant. Byrd v. Wainwright, 428 F.2d 1017 (5th Cir. 1970).
References:
[1]: Black’s Law Dictionary Deluxe Tenth Edition by Henry Campbell Black & Editor in Chief Bryan A. Garner. ISBN: 978-0-314-62130-6
[2]: Gerald A. Kafka & Rita A. Cavanagh, Litigation of Federal
Civil Tax Controversies § 7.04 (2012)
[3]: United States War Department, A Manual for Courts-
Martial 127 (1920).
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