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
Robindavisccu1 1011944433

How Corning Credit Union Is Helping Its Communities

Robin Davis - Corning Credit Union (CCU)
Headshot2 3182020512

How To Protect Your HVAC From Hurricanes

Chris Jones - Green Dot Heating & Air
Burrus rob headshot 300x300

Coronavirus Analytics

Robert Burrus - Cameron School of Business - UNC-Wilmington

Trending News

Office And Retail Complex Under Construction Gets Protective Touches

Cece Nunn - May 29, 2020

Attorney: Business Interruption Insurance Should Cover Virus Losses

Jenny Callison - May 28, 2020

For County's $1.3M Small Business Grant Program, More Details Coming

Cece Nunn and Christina Haley O'Neal - May 29, 2020

Chamber Launches Latin American Business Council

Christina Haley O'Neal - May 28, 2020

Local Nursing Homes Work To Keep Residents Safe And Connected

Jenny Callison - May 29, 2020

In The Current Issue

Info Junkie: Rhonda Bellamy

Rhonda Bellamy, executive director of the Arts Council of Wilmington/New Hanover County, shares her top tech and info picks....


Stay-at-home Improvement

As hardware and other do-it-yourself (DIY) home improvement retailers and gardening supply stores begin to enter their busy season, they are...


MADE: Spicing Up Local Markets

RAWsalsa is a local, independent maker and seller of smallbatch, fresh salsas. Products include signature fresh tomato and fresh pineapple s...

Book On Business

The 2020 WilmingtonBiz: Book on Business is an annual publication showcasing the Wilmington region as a center of business.

Order Your Copy Today!


Galleries

Videos

2019 Health Care Heroes
August 26, 2019 Power Breakfast: A Healthy Sale?
2019 WILMA Leadership Accelerator
2019 WilmingtonBiz Expo Keynote Lunch - CEO, nCino, Pierre Naude`