Civil Pretrial Motion Lawyers
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What Are Pre-Trial Motions?
Motions are documents filed with the court requesting the court to do something, such as admit or exclude an item of evidence. Pretrial motions are brought before the formal start of a trial. They must be specifically requested in order to be valid and will be deemed waived if not raised during the proper time frame. They are usually attached to a strict deadline.
Why Are Pre-Trial Motions Used?
Pretrial motions can often have the effect of shortening a trial. Their purpose is to set the boundaries for the upcoming litigation. Pre-trial motions can also resolve many issues and questions that surround the lawsuit. A motion can also terminate the lawsuit and end the lawsuit before trial.
What Are Some Common Examples of Pre-Trial Motions?
There are a variety of pre-trial motions available for each party in a civil cause of action. Some of the more commonly used pretrial motions are:
- Motions in Limine: Is a motion filed by a party to the lawsuit which asks the court for an order to rule out or prevent certain evidence from being presented by the other side at trial.
- Insufficiency of Process: A case may be dismissed if the defendant was improperly served or there is a defect in the summons. Service can be improper for a number of reasons. This motion must be raised before an Answer is filed.
- Change of venue: A defendant may sometimes files a motion to change the court location where the trial will be heard. This usually occurs if the venue is inconvenient for the defendant to defend the suit.
- Lack of Personal Jurisdiction: This motion is filed when the defendant is claiming that the court does not have power to make a decision over the defendant because the defendant does not have enough minimum contacts within that state for the state court to bring a claim against the defendant.
- Require the opposing party to produce evidence for trial: The plaintiff may ask the court to exclude some of the defendant's statements because they are self-serving and can mislead the jury in defendant's favor.
- Summary Judgment: Have the judge issue an automatic ruling based on the undisputed facts of the case. This usually occurs when a party has not presented enough issues to support that there is an ongoing issue that must be decided by the court or jury.
- Pretrial Motion to Dismiss: Dismiss the case altogether without having to hear the legal arguments
- Failure to State A Claim: A party files this motion when the plaintiff's claim failed to present sufficient facts, if taken as true, that would indicate that there has been a violation of law or that defendant has committed a wrongdoing in which the plaintiff should be entitled to a legal remedy.
How Are Pretrial Motions Used in a Civil Suit?
For civil claims, two of the more commonly employed pretrial motions are motions to dismiss and motions for summary judgment.
A motion to dismiss requests the judge to dismiss the case altogether before the merits of the case are reached in trial. This may be done for various reasons, such as a lack of supporting facts or if the claim is frivolous. This is common in personal injury cases where it cannot be shown that the person was actually injured.
A motion for summary judgment requests the judge to issue an automatic ruling because there are no disputed facts in the case. This is frequently the case in employment discrimination matters, where both sides stipulate (agree) that the facts are undisputed. These are usually only available in civil lawsuits.
When Are Pretrial Motions Filed in a Civil Suit?
Some pre-trial motions such as improper service, change of venue, lack of personal jurisdiction must be filed before the answer to the complaint has filed or it will be waived and defendant will not be able to use those as defenses anymore. However, other motions such as lack of subject matter jurisdiction, motion to dismiss, failure to state a claim, and filing a default judgment may be filed at anytime before trial has begun.
What Is a Motion for Default Judgment?
A motion for default judgment is filed when the defendant fails to answer the plaintiff's complaint or failed to file a motion to dismiss the lawsuit within the time limit that was provided in the summons. Failure to answer places the defendant in default. Once the defendant is in default, an entry of default is noted in the file by the court clerk and the defendant will not be allowed to content the lawsuit any longer. The only question that remains is how much the plaintiff may receive from the defendant for damages.
If the defendant has a valid excuse of why the answer was not filed timely or why the defendant failed to appear to defendant the lawsuit, the defendant may ask the court to set aside or vacate the default judgment and undo the entry of default.
Do I Need a Lawyer for a Civil Pretrial Motion?
Filing a pretrial motion can be a very complex process involving deadlines and procedures that must be rigorously adhered to. A pretrial motion has the potential to shape the entire outcome of a case, so it is best to work closely with a lawyer. You lawyer can inform you if any pretrial motions are available and how they will affect the disposition of your case.
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Last Modified: 05-13-2015 09:15 AM PDT
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