11 Can a Motion Win My Lawsuit?

Martina had expected the judge to rule at the motion hearing, granting her the relief that her lawyer had so convincingly advocated and demanded. Martina’s opponent had made only the weakest argument in response. But to Martina’s surprise, the judge had only taken her motion under advisement, which Martina learned from her lawyer meant that they might soon see a written decision and order. Martina’s lawyer didn’t know for sure, though, indicating instead that whether and how to decide was pretty much up to the judge. Martina was getting a taste of the uncertainty of litigation, and she wasn’t sure that she liked it. 

Pretrial

When a party files a lawsuit, it doesn’t go straight to trial. Criminal defendants generally have a constitutional right to speedy trial, usually within six months unless the defendant wants more time. Not so for civil cases, which can go on for nine months or a year or more, sometimes even for years. Civil litigators tend to think of the lengthy pretrial period as the real skirmish, more so than the brief and relatively rare trial that may follow. The pretrial period between the early pleading stage and the anticipated but infrequently necessary trial, lasting several months or more, involves not only discovery practice, addressed in the next chapter, but also various court appearances. Pretrial conferences in court ensure that the parties are on track toward resolution or trial. Motion hearings in court invoke the judge’s authority to decide various procedural issues. Motion results can affect or determine a case’s outcome. They are also tests of a party’s commitment, resources, and will. Make effective motion practice a part of your pursuit or defense of your lawsuit.

Motions

As just indicated, a motion asks the judge to rule on an issue in the case. The moving party generally drafts and files a written motion and supporting memorandum brief, scheduling the issue for a court hearing. The opposing party drafts and files a response and opposing brief. The attorneys for both sides, often alone but sometimes with their clients, then appear in court to argue the motion and listen to the judge’s ruling. Motions may decide discovery issues such as whether a party must answer the other party’s exhaustive interrogatories or produce certain arguably confidential documents. Motions may also, though, decide pleadings issues, like whether the plaintiff has stated valid legal claims or whether the plaintiff may amend the complaint to add claims or the defendant may amend the answer to add defenses. Motions may also rule in advance of trial as to what evidence is admissible or inadmissible. Motions can also address adjourning trial and other procedural issues. Be wise and strategic about your pretrial motions.

Timing

The timing of motions can be important to their success. Move to amend pleadings as early as possible. Wait too long, and your proposed amendment may prejudice the opposing party. Move to strike or otherwise test the legal validity of claims or defenses early enough not to have to conduct discovery on them if the judge grants the motion and dismisses the claim or defense. Move, though, to test whether the other party has evidence supporting a claim or defense only after the party has had a chance for discovery. Moving too early will result in the judge declining to rule until after discovery commences or ends. Move to keep unduly prejudicial evidence out of the trial shortly in advance of trial, when the issues are in clear focus. Timing can be significant in motion practice.

Sides

Which side you’re on can also matter to what motions you bring and for what purposes. The plaintiff pleading the claims generally doesn’t want to face any motions testing or striking claims. That’s the defendant’s role and opportunity. The more challenges that a defendant can raise to the plaintiff’s claims, the better. The defendant might well move immediately to test the legal validity of certain claims and then, if the judge denies the motion, move again after discovery closes, arguing that the plaintiff has no evidence supporting the claims. The plaintiff, by contrast, may move to strike defenses, move to compel the defendant to disclose evidence the defendant appears to be withholding, and perhaps move for a judgment on any claims as to which the defendant appears to have no defense. Motions are, in other words, pointed and strategic, often with forays, parries, feints, and even subtle misdirection. Be wise and strategic with your motions.

Claims

One of the quickest and surest ways to win a lawsuit is to get the judge to rule in your favor on it as soon as the pleadings outline the claims and defenses. Federal and state court rules generally authorize the parties to test the legal validity of the claims or defenses the other side asserts by filing a motion arguing that the opposing party’s pleading fails to state a valid claim or defense. That motion doesn’t argue about the evidence. Rather, it argues whether the opposing party has asserted a claim or defense that the law recognizes under the case’s particular circumstances. For instance, a seller trying to collect on a buyer’s account would properly plead breach of the sale or account agreement, not a tort claim like negligence or malpractice. If instead the seller pleaded the wrong type of claim, the court could promptly dismiss it on motion. Courts have similar authority to dismiss plainly unsupportable claims and defenses, such as if the defendant pleaded in response to the unpaid-account claim that little green men stole the defendant’s checkbook. Consider filing a motion to dismiss if your opponent pleads a preposterous or plainly inapplicable claim or defense.

Defenses

A defendant usually has the greater opportunity to obtain a case’s dismissal than the plaintiff has to obtain the judge’s order of judgment on a claim. The defendant has the advantage in filing motions going for the pretrial win because any one of several relatively black-and-white defenses may bar the plaintiff’s claim. A defendant may, for instance, move for dismissal if able to show beyond dispute that the statute of limitations bars the plaintiff’s late-filed claim. A defendant may, for another instance, move for dismissal if able to show beyond dispute that the plaintiff has already released and discharged the claim. A defendant may, for yet another example, move for dismissal if able to show that another court has already decided the same matter between the same parties. A defendant may have several other, similar black-and-white defenses to argue with a pretrial motion. 

Support

Defendants also need only to poke an evidentiary hole in a case to get it dismissed because plaintiffs generally have the burden of proving each element of a claim with at least some affirmative evidence. Indeed, plaintiffs must generally show that they have a preponderance of the evidence on their claim, to obtain a judgment. And that showing generally requires going to trial because the defendant is likely to have at least some contrary evidence on at least one of the claim’s elements. Defendants thus commonly test a plaintiff’s evidence by filing a motion after discovery closes, arguing that the plaintiff has no evidence on one or more elements of the plaintiff’s claim. If the judge agrees with the defendant that the plaintiff has failed to raise a genuine issue of material fact for trial, then the judge may dismiss the claim. If you are defending a lawsuit, look for a hole in the plaintiff’s claim to test the claim with this kind of lack-of-support motion.

Judgment

Conversely, a plaintiff may move for summary judgment if the defendant has zero evidence supporting any defense. Such motions are much more rare than the relatively common defense motion challenging the plaintiff’s evidence. A plaintiff may, for instance, claim that the defendant has not raised any genuine issue of material fact against the plaintiff’s claim that the defendant has failed to pay an overdue account. To defeat the motion, the defendant would only have to attest that the defendant had paid the account or that the goods or services the plaintiff sold were defective in some material manner. Defendants find it relatively easy to raise those kinds of fact issues, even if doing so with hard-to-believe and likely false or exaggerated attestations. If you are pursuing a claim to which the defendant has no genuine defense, then try moving for summary judgment. The judge may agree, and you may end up avoiding the cost and delay of a trial. 

Discovery

You may also find yourself filing or arguing against discovery motions. The process of discovery, which the next chapter addresses, can involve disagreements over whether one party must disclose what the other party requests and demands. In that case, the party seeking the disclosure may move to compel the other party to make the disclosure. A discovery motion requires the judge to rule on the requested disclosure. Judges generally dislike discovery motions because of their number, detail, and complexity. When, for instance, a party files a motion asking that the judge compel the other party to disclose old academic misconduct records in an employment dispute, how is the judge to know if the old academic records have anything truly to do with the claims in the employment dispute? Judges ruling on discovery motions must wade into details of the case that they’d rather avoid learning unless the case comes to trial. And once a judge orders disclosure, the judge can expect the parties to return to court arguing about the extent of the disclosure. Motions for sanctions for failure to comply with discovery orders are relatively common, especially given that those sanctions could include judgment on or dismissal of claims. Discovery motions are thus among the most contentious, distasteful, and time-consuming of motions. Good luck with your discovery motions.

Evidence

Shortly before trial, parties may also argue motions regarding the admissibility of evidence, known as motions in limine. If, for instance, you had a drunk-driving conviction many years ago having nothing to do with your lawsuit, but you had good reason to believe that the other party would bring it up in front of the jury to unfairly paint you as a bad apple, then you might move for the judge’s order prohibiting any mention of it. Motions in limine generally seek to keep out of the jury’s hearing anything that would be so unduly prejudicial that it would deprive the moving party of a fair trial. If you have something deeply embarrassing or troubling to legitimately hide, having no relevance or very little relevance to your case, then move in limine to keep it out of the jury’s hearing. Don’t let the other side poison the well from which you expect your trial win to flow. Use a pretrial motion to set fair ground rules before trial. 

Resources

Pretrial motion practice can teach you a lot about your lawsuit. You can also learn just how committed to the lawsuit both sides are and whether both sides have adequate resources to conduct the litigation. Trials are generally over rather quickly. The greater litigation costs can be in the several months of pretrial motion practice, when attorneys may spend many hours and days working up the case and charging substantial fees. Pretrial motion practice can test the will and empty the coffers of the parties. Don’t be surprised if your opposing party begins to indicate a willingness to entertain settlement talks, when they had previously refused. And don’t think you’re the only party to ever do so, if you change your own tune and begin to rethink your willingness to settle. 

Reflection

What procedural hurdles do you see your lawsuit as presenting? Do  you anticipate problems with the pleadings, such as the need to add or amend claims? Do you feel that some of the legal claims in the case may not be valid? Do you think that some of the legal defenses in the case may not be valid? Do you anticipate that some of the claims or defenses may lack evidentiary support? Do you believe that the judge may be able to grant summary judgment on one or more of the claims because no evidence exists with which to oppose them? Do you anticipate battles over discovery disclosures? Are you or the other side likely to want to keep some evidence confidential? Do you see a good reason for not wanting to disclose something to the other side, other than that doing so may hurt your claim or defense in the lawsuit? Does the other side know something about you that could hurt your chances at trial, even though the matter has no true relevance to the case and would instead simply be embarrassing and prejudicial? Do you have the time, commitment, and resources to battle the other side in pretrial motion practice?

Key Points

• Parties generally use several months of pretrial for motion practice.

• Motions bring procedural issues before the judge for decision.

• Motions on the pleadings come early, while motions on evidence later.

• Defendants generally have motions available to avoid trial.

• Defendants may test the legal validity of a plaintiff’s claims.

• Defendants may also seek dismissal based on legal defenses.

• Defendants may challenge whether plaintiff has supporting evidence.

• Plaintiffs may pursue summary judgment on their claims.

• Parties also file discovery motions questioning disclosures.

• Parties file pretrial motions to keep out unduly prejudicial evidence.

• Pretrial motion practice can test resources as much as anything else.

Read Chapter 12.