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Resolving Your Case Before Trial: Pretrial Motions

pretrial motion is a request (usually written) made by a party asking the court to decide an issue before trial. Pretrial motions can resolve many essential questions about your lawsuit.

If the ruling on the motion can terminate the litigation and end a dispute before trial, it's called a dispositive motion. If the ruling is on an incidental question that arises during litigation, it's a non-dispositive motion. The filing of pretrial motions is just one stage of a personal injury case or other legal dispute. But these motions can determine the course of your case significantly.

This article gives a basic overview of dispositive motions. It discusses pleadings, pretrial proceedings, and motions to dismiss. The article also addresses summary judgment and default judgment motions, among other types of pretrial motions.


Pleadings are formal documents you file with the court outlining your claims and defenses. The initial pleading is usually the complaint, which the plaintiff files. The plaintiff is the person or entity initiating the lawsuit. The defendant is the person or entity being sued. The defendant then files an answer, sometimes along with a counterclaim. Counterclaims allege that the plaintiff is liable for any damage or harm.

All these documents help set the stage for the lawsuit. They provide a framework for addressing issues during the trial.

Trial Date and Pretrial Proceedings

Once a lawsuit is filed, the court will set a trial date. But many steps occur before the trial begins, including:

A pretrial conference may also be held to determine the trial's schedule and resolve any remaining issues. Your attorney can guide you through these pretrial proceedings and help prepare you for the actual trial.

Motion To Compel

A motion to compel asks the court to require another party to produce certain evidence or testimony. For example, it's common for a party to submit interrogatories to an opposing party. Interrogatories are written questions presented by one party to another in a lawsuit that must be answered under oath.

Interrogatories are an essential part of the discovery process. They can help uncover evidence, ascertain facts, or clarify issues in the case. Suppose the opposing party refuses to respond to interrogatories. In that case, you can file a motion to compel so the opposing party will comply, or face consequences imposed by the trial court.

Depositions are also a crucial part of discovery in civil cases. During a deposition, lawyers from both sides can question witnesses under oath. This is similar to how questioning happens during a trial. The testimony given during a deposition can be used to gather information, and it may even be used during the trial itself. If a party fails to appear for a deposition, filing a motion to compel is an option.

Motion To Dismiss

A motion to dismiss is sometimes filed in the very early stages of a case before the parties have conducted the discovery process. The material presented in the complaint and any exhibits to the complaint are the focus of the motion. The motion is brought when the defendant believes 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

A motion to dismiss for lack of subject matter jurisdiction argues that the court doesn't have the power to rule on the dispute. For example, state law may require a special court to determine certain matters, such as requiring that a probate court, rather than a general civil court, decide a complaint involving the interpretation of a will.

Lack of Personal Jurisdiction

A motion to dismiss for lack of personal jurisdiction argues that the court doesn't have the power to make decisions affecting the defendant personally. Under federal civil procedure, for instance, a court lacks jurisdiction over you if you don't have sufficient minimum contacts with the place where the lawsuit has been filed. States follow similar principles.

For example, if you were involved in an automobile accident at Yellowstone National Park in Wyoming, but you live in Florida, and you're being sued in Vermont, you would have a good reason to argue that the Vermont court doesn't have jurisdiction over you.

But arguably, if your presence at Yellowstone satisfies the "minimum contacts" requirement by, for instance, evidencing that you availed yourself of Wyoming's public roadways, Wyoming may have personal jurisdiction to hear a case against you.

Statute of Limitations

A motion to dismiss may also be filed due to the expiration of the statute of limitations. The statute of limitations is the time limit within which a lawsuit must be filed. Statutes of limitations vary by state. If you fail to file your lawsuit within this established time frame, you may lose your right to sue. Your attorney can advise you on your case's relevant statute of limitations.

Improper Venue

Venue refers to the particular location of the court, such as the specific city or county in which the courthouse is located. States have statutes setting forth where in the state you can be sued. If you're not sued in one of those places, the site of the lawsuit is inappropriate. In that case, you can file a motion to dismiss on the basis of improper venue.

A venue may be legally improper even if the court has personal jurisdiction over you. A frequent solution to this problem is for the court to order the transfer of your case to the proper venue.

Insufficiency of Process or Insufficient Service of Process

A case may be dismissed if there is a technical defect in the summons (which is rare) or if you weren't properly served with the summons and complaint (which is more common).

Service of process may be improper for many reasons. For example, state law may require that notice of a lawsuit be provided to you at your place of residence. But if you're served with notice at your place of business instead, you have a basis for claiming improper service.

Be sure to tell your lawyer about how you were served and any unusual circumstances. This will help your lawyer determine whether there's a basis for dismissing the case due to insufficient service of process.

Failure To State a Claim Upon Which Relief May Be Granted

Suppose your lawyer concludes that the facts set forth in the complaint don't state a legal claim for relief. In that case, your lawyer can file a motion to dismiss for failure to state a claim upon which relief can be granted. In some state courts, this is known as a demurrer.

For example, the complaint may allege you engaged in a negligent act, injuring the plaintiff. The law may provide that you don't have any responsibility to look out for the plaintiff under the circumstances described in the complaint.

You can't be held liable for the plaintiff's injuries if you don't have a legal responsibility.

Summary Judgment Motion

In some cases, the essential facts aren't disputed and require that judgment be entered for one of the parties. This is known as a summary judgment, which ends the case, or some aspect of the case, before trial.

A trial's purpose is to have somebody — the judge or the jury — decide what the facts are. If the facts aren't in dispute, there's no need for a trial. Instead, the party who believes the undisputed facts compel a ruling in their favor files a motion for summary judgment.

The motion asks the court to consider the undisputed facts and apply the law to them. It argues that the law requires a judgment for the party bringing the motion.

Summary judgment is a blunt instrument that can abruptly terminate the litigation process. To avoid a summary judgment, the opposing party must provide the court with evidence that would be permitted at trial, indicating that the key facts are disputable. If the court agrees with the party opposing the motion and finds that the key facts are in dispute, the court can't enter a judgment. It 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. The plaintiff may ask the court clerk to note when the defendant is in default in the file. This procedure is called entry of default.

Entry of default is serious. It means that because the defendant has failed to appear, they won't be permitted to contest whether they're liable to the plaintiff. Instead, the only question in dispute is how much the plaintiff should receive in damages. The court then sends the defendant a notice stating that default has been entered against them.

Suppose a defendant is in default, acts promptly, and has an adequate excuse. In that case, they may be able to convince the court to set aside or vacate (undo) the entry of default from the file.

Courts strongly prefer that cases be decided on the merits. This often influences them to grant a motion to vacate the entry of default. But in some cases, a court will determine that the defendant's reasons aren't good enough and refuse to set aside or vacate the entry of default.

Sua Sponte Dismissal

A sua sponte dismissal refers to a motion for dismissal issued by the court but not requested by either party to the lawsuit. Sua sponte means "of one's accord" or "voluntarily."

Generally, a judge will order a sua sponte dismissal if they determine there are problems with a trial. For instance, a judge may dismiss a case after realizing that the court lacks jurisdiction.

Motion To Exclude

A motion to exclude is a request to have specific evidence or testimony left out of a trial. For example, in some cases, expert witnesses may be desirable to support a claim. Expert testimony can be helpful to explain certain aspects of the case that are outside the average person's understanding.

But witnesses need to meet specific qualifications to be considered experts. You can file a motion to exclude a proposed expert's testimony because the witness doesn't satisfy those qualifications.

In Limine Motions

Motions in limine are filed by attorneys before a trial begins. These motions aim to prevent certain evidence from being presented during the trial, usually because it is irrelevant, prejudicial, or otherwise inadmissible under the rules of evidence.

For example, in a car accident case, an attorney might file a motion in limine to prevent the opposing party from introducing evidence of the plaintiff's prior driving record.

Get Legal Advice About Resolving Your Case With Pretrial Motions

It doesn't matter how smart or educated you are. The law can be confusing for anyone. A seasoned attorney will be able to help you make sense of your options, whether you're dealing with a wrongful death issue, car accident claim, property damage case, personal injury claim, or other type of case.

Lawyers seek opportunities to avoid trials or weaken the opposition's arguments through pretrial motions. Contact a litigation attorney today to get professional help with your case, learn more about court rules, and discuss attorney fees.

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