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.
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.
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:
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.
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.
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.
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.
Last Modified: 05-13-2015 09:15 AM PDTLaw Library Disclaimer
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