Follow John Linkedin Twitter Facebook
Email John Email
Legal Issues
Sep 22, 2016

Pre-Trial Dispositive Motions: A Defense Attorney’s Tool Box

Sponsored Content provided by John Martin - Professional Liability and Medical Malpractice Defense Attorney, CSH Law

From the start of a case, a defense attorney will strategize the various ways to dispose of some or all of the claims alleged against a client.

Two of the most common pretrial dispositive motions are motions to dismiss for failure to state a claim upon which relief can be granted and motions for summary judgment. 

These two tools in a defense attorney’s tool box are set out in rules of procedure for all civil cases in state and federal courts. 

A motion for failure to state a claim is a challenge made at the beginning of a case and strikes at the very heart of a lawsuit. It is a statement that, even if the plaintiff was given all benefit of the doubt ­and even if everything the plaintiff claimed were true - the claim should be dismissed because it is not legally cognizable or because sufficient facts have not been alleged to make out a cognizable claim. 

Generally, a judge considers only the pleadings in deciding this motion.  Dismissal is possible if the plaintiff failed to allege factual assertions for each required element of a cause of action. A plaintiff needs to do more than merely recite the law. This dispositive motion is often unsuccessful due to the general policy of construing a complaint liberally and for a preference to decide a claim on its merits.

A motion for summary judgment is a powerful tool. It can end a case entirely, dismiss portions of the case, or alter the course of the litigation. 

Often, a motion for summary judgment is filed at or near the close of discovery. A party generally attaches evidence like affidavits or exhibits to the motion. A judge considers the parties’ evidence and applies the law to grant or deny a motion for summary judgment. A summary judgment motion is granted when there is no genuine dispute of material fact and the movant is entitled to judgment under the law. 

These two pretrial dispositive motions apply generally to all civil cases.  Certain civil cases like medical malpractice cases may also be dismissed before trial pursuant to other case-specific rules. 

If a case is not otherwise settled or dismissed by a pretrial dispositive motion, it will become one of those rare cases that actually goes to trial.

John D. Martin is a trial lawyer and the managing partner of the Cranfill Sumner & Hartzog LLP’s Wilmington, North Carolina office. Martin concentrates his practice in the medical malpractice and professional liability defense practice groups. He has tried numerous medical malpractice and personal injury cases throughout eastern North Carolina. Many of his cases involve brain injury, birth trauma, paraplegia and wrongful death. Additionally, Martin has experience with large construction litigation, premises liability and hospital/workplace security. To contact Martin, call (910) 777-6018 or email him at [email protected]  
 

Wbj insights revised 0510 6291692911
Ico insights

INSIGHTS

SPONSORS' CONTENT
Mikestonestreetcropped 862150530

Going Virtual for Your HOA’s Annual Meeting? Read This First

Mike Stonestreet - CAMS (Community Association Management Services)
Chris coudriet

County Takes Innovative, Forward-Thinking Approach For Pandemic Operations

Chris Coudriet - New Hanover County Government
Dave sweyer 300 x 300

How Do I Determine Market Rent?

Dave Sweyer - Sweyer Property Management

Trending News

NCDOT: Hampstead Bypass Construction To Begin In March

Johanna F. Still - Dec 6, 2021

Partners In Riverfront Development Plan Hope For Another Chance At Zoning

Cece Nunn - Dec 6, 2021

Real Estate Firm Rings Up $3B In Home Sales

Cece Nunn - Dec 7, 2021

ATMC To Change Name To Reflect Shift To Broadband

Johanna Cano - Dec 6, 2021

Wilmington Health Welcomes Several Professionals To New Roles

Staff Reports - Dec 7, 2021

In The Current Issue

New Stores, Eateries Aim To Boost Mall

The transformation of a portion of Independence Mall continued this year, with new stores and restaurants opening recently....


A Look Back At Banking In 2021

Almost without exception, banks in the Wilmington market showed steady deposit growth as of the most recent FDIC Market Share Report....


Seniors Find Health, Friends In Fitness

If there’s one word to describe the members of Sandy Sneakers, an exercise group for seniors, it’s “vivacious.” They have the energy of a 30...

Book On Business

The 2021 WilmingtonBiz: Book on Business is an annual publication showcasing the Wilmington region as a center of business.

Order Your Copy Today!


Galleries

Videos

Trying to Grow a Business?
2020 Health Care Heroes
2020 WilmingtonBiz 100