Pretrial Motions
In the prior panel, we discussed issuance of a summons and
complaint, the answer, and the importance of tendering defense to an insurance
company. These documents are called pleadings. We haven't completed
the initial round of pleadings, however. If the defendant has claims against
the plaintiff, he will assert a counterclaim, a claim back at the
plaintiff. To this, the plaintiff will serve a reply, an answer
to the counterclaim. Sometimes the plaintiff sues more than one defendant.
If the one of the defendant claims that another should bear all or a portion
of the loss, the defendant may assert a cross claim against his
co-defendant. If the defendant believes that another person, not now a
party, should be held responsible for any claims against him, then the
defendant may choose to commence a third party action. The third
party action begins like a new lawsuit, in some ways. It begins with a
third-party complaint and summons, requiring in turn an answer to the third
party complaint. The third party complaint says, I am not responsible for
the plaintiff's claim, but if I am wrong, then someone else is more responsible
than I. That brings the additional party into the lawsuit.
Too many Lawyers!!! If you are thinking by now
that there are too many lawyers in this lawsuit, you are probably correct.
Bringing lots of parties into a lawsuit brings lots of lawyers. This means
that every proceeding will be lengthened, because each lawyer will have
questions or position statements. Depositions and trials can be materially
lengthened. On the other hand, if key parties are left out of the lawsuit,
you can bet that defendants will claim that if anybody was wrong, it was
the missing party.
Early Motions to Dismiss. Sometimes defense counsel
believes that the plaintiff's case contains a fatal obvious legal flaw.
She may move to dismiss the case immediately, indeed the rules of procedure
allow some dismissal motions to suspend the required answer. A motion,
by the way, simply requests the court to issue an order of some kind. A
motion to dismiss seeks a dismissal order, for example. More about motions
later. The defense brings these motions to avoid expense of discovery and
further proceedings. But an early motion to dismiss must admit (for the
sake of the motion only) the truth of the allegations of the complaint.
The motion to dismiss says, look, even if the plaintiff can prove all of
these things, (many of which I deny), the plaintiff will still lose. A
motion to dismiss might allege that the plaintiff waited beyond the statute
of limitations, sued in a court without jurisdiction, makes a claim which
"fails to state a claim upon which relief can be granted." This latter
motion asks the court to find that the law provides no relief, no damages,
for the harm alleged in the complaint. Not every case involves an early
motion to dismiss; these motions are brought only in cases where the defense
can say that the case is so obvious that there is nothing to talk about.
Early Status Conference. Most court systems convene
an early status conference of some kind. The nature of the conference and
its timing depends upon court rules. At this conference, the lawyers attempt
to agree on a schedule to bring the case to completion. They may agree
on an exchange of documents, identify additional needed parties, and may
even begin settlement discussions. They may also consider early alternative
dispute resolution, such as mediation.
What is a Motion? A motion, as we said, is a request
that the court issue an order of some kind. The order might end the case
by dismissal or judgment for the plaintiff. A motion to the end the case
(or part of it) in favor of one or more parties is called a dispositive
motion. A motion might also seek the court's assistance in some procedural
aspect of the case: to stop abusive discovery, to require a party to answer
relevent questions, to delay the trial or to schedule an earlier trial
date, for example. Motions might also seek temporary relief of some kind.
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