Pretrial motions can resolve many important questions about your lawsuit.
The information below is intended to give you a basic idea of dispositive motions that might end your case before trial, and how those motions work.
Resolution before Trial: Motions
Many cases are resolved via Motions to Dismiss Summary Judgement, Default Judgement and other such pre-trial motions which ask the court to dismiss the case before trial proceeds.
A motion of any type is a request filed by your lawyer asking for a particular type of ruling on a particular matter.
If the ruling on the motion ends the litigation and therefore the dispute the motion is called a dispositive motion. If the ruling is based on details that present themselves during the trial, the motion is a non-dispositive motion.
Some Common Disponsive Motions Motion to Dismiss
A motion to dismiss generally is filed in the very early stages of the litigation, before the parties have conducted discovery. The material presented in the complaint and any exhibits to the complaint are the focus of the motion, which is brought when the defendant believes that the complaint is legally invalid. In deciding a motion to dismiss, the court "must view the facts set forth in the complaint in the light most favorable" to the plaintiff. The motion to dismiss is usually based on one or more of the following legal deficiencies: Lack of subject matter jurisdiction: The court doesn't have the power to rule on the controversy. The case may require a specialized court to determine the disposition of the case: ie; a probate court for an estate matter or a civil court hearing a complaint of a business matter.Lack of personal jurisdiction: In other words, the court does not have power to make decisions affecting the defendant personally. The court lacks legal or geographic jurisdiction over you if you do not have contact with the place where the lawsuit has been filed. Improper venue: "Venue" refers to the particular location of the court. A venue may be legally improper even if the court has personal jurisdiction over you. If the venue predisposes the case to a hostile environment for instance, the solution may be not to dismiss the case, but to transferred the case to a proper venue. Insufficiency of process or insufficient service of process: If there is a technical defect in the summons (unlikely) or if you were not properly served with the summons and complaint (likely) the case may be dismissed. Service may be improper for a number of reasonsIf you have questions about the service of the process, ask your lawyer. Failure to state a claim upon which relief may be granted: In some cases, your lawyer may conclude that the facts set forth in the complaint do not constitute a legal claim for relief. In other words, if you don't have any responsibility you cannot be held liable for the plaintiff's injuries.
Summary Judgment Motion
The purpose of a trial is to have the judge or the jury decide the facts in the case. In some cases, key facts are not disputed and a judgment may be entered for one of the parties. This is known as a summary judgment, meaning summary judgement ends the case before trial. The motion asks the court to consider the facts and apply the law to them, concluding that the law requires a judgment for the party bringing the motion. Summary judgment is "a blunt instrument" that can abruptly terminate litigation. Summary judgment aversion is providing the court with evidence that would indicate the facts are disputable. If the court agrees with the party opposing the motion they must instead send the case to trial.
Motion for Default Judgment
If a defendant fails to answer the complaint or file a motion to dismiss within the time limit set forth in the summons, the defendant is in default. When a defendant is in default, the court clerk to makes a note in the file, this note is called entry of default. Entry of default is serious: The defendant has failed to appear and thereby is not permitted to contest their liability. The question then becomes how much the plaintiff should receive in monetary damages. The court will notify the defendant that default has been entered against them and the amount due the plaintiff. Similar to a motion of default, if the defendant in default, acts promptly armed with a suitable reason they may be able to have the court set aside or vacate the default from the court records. Courts prefer that cases be decided on the merits not by default. That is a reason why a default judgement may be overturned. A court may also decide that the reason cited aren't enough to set aside or vacate the entry of default.
Sua Sponte Dismissal
The term "sua sponte" means "of one's accord" or "voluntarily." A sua sponte dismissal refers to a motion for dismissal issued by the court, but not requested by either party to the lawsuit. A judge may order a sua sponte dismissal if the judge believes there may be problems with a case. Issues like jurisdiction or court specialty may come into play.
Resolution Before Trial With Settlement: Far more injury lawsuits settle than go to trial.
The majority of legal claims arising from accidents or injuries do not reach a civil court trial. Typically, they are resolved earlier in the process through a negotiation and settlement among the parties. Sometimes an informal settlement can take place before any lawsuit is even filed. Through settlement, the plaintiff agrees to give up pursuing any further legal action in connection with the accident or injury in exchange for payment of a sum of money from the defendant or an insurance company. If you are thinking about settling a legal claim after an accident or injury or if you have received a settlement offer from the insurance company, it is vital that you consult an attorney. The settlement may not be enough to cover your medical bills, back wage or future rehabilitation expenses. Further, after expenses, it may not leave you anything to live on while you recuperate.
Consider the following points before deciding to go to court:
Strength of the Case Jury verdicts and settlement outcomes in similar cases; Likelihood of winning at trial Practical difficulties in trying the case Pros and Cons of the evidence Strength and weaknesses in opponent's evidence. Money and Damages requested What the case may be worth in a range of dollar amounts and what you are likely to receive in damages at trial; the minimum amount you will accept to end the case and avoid trial; the policy limits of the defendant's insurance coverage; in addition to, but to a lesser extent, the defendant's own monetary resources. It is wise to be as informed as possible before embarking on any legal course. A lawsuit is a very serious matter and affects the lives of both the plaintiff and the defendant. Be sure you have all your points countered
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