All About A Petition

Dan Goodman

A Petition is a legal form used in the courts to request the granting of a favor. An example of this is a petition of habeas corpus, where a prisoner requests the court to determine if he or she is unlawfully detained or imprisoned illegally, and can therefore be released. Another example is a petition for writ of certiorari to the Supreme Court of the United States to adjudicate your suit. Still another example is requesting access to a sealed record like an original birth certificate. And still another is changing one’s name. The party filing the petition is known as the petitioner. If applicable, the party to whom the petition is made against is referred to as the respondent. A petition can be of two types, generally, a non-hearing petition or a hearing petition. A non-hearing petition is a petition which will be decided by the court based on only the petition, and if applicable, any memorandum of law and/ or supporting affidavits and/ or exhibits. A hearing petition is like the non-hearing petition, with the addition of appearance of all the parties before the judge. The appearance has to be scheduled. The purpose of the appearance is to present oral testimony and/ or oral arguments. At the hearing, the judge may rule on the petition, after the proceedings are completed, or he or she will render a decision after researching the matter further. If the latter situation arises, the court will mail its decision to you. Common to both is the requirement that a petition made to the court, is also to be sent to all parties, if applicable, to the suit. This can be done in two ways. The first is personal service. Personal service can only be carried out by an adult (18 years of older) who is not a party to the suit. The petition is personally delivered to all parties to the suit. The adult who delivers the petition usually signs a proof of service for do so. The last is service by mail. Service by mail can only be carried out by an adult (18 years or older) who is not a party to the case. The one who mails the petition, usually the petitioner, must sign a certificate of service by mail.

The proof of service or certificate of service by mail is included with the petition and is filed with the court at the same time the motion is filed. A summons will need to be prepared for each party who is to receive a copy of the petition. A petition may included a memorandum of law (for example; a petition for writ of certiorari to the Supreme Court of the United States). A memorandum of law is a legal document consisting of legal research supporting the position(s) of the petitioner. The memorandum of law contains petitioner’s arguments, (in this situation, a table of authorities; in which case it is also called a brief), a conclusion, a statement, and a table of contents. A petition, in general, is like a motion, where the petitioner makes a request to the judge. However, a motion is filed during a suit while a petition begins a suit.        
© 2009 Dan Goodman