Peacock Tales

Volume 18, Number 2 · April 2008

"How do we get this thrown out of court?"

Part II of looking at the issue of early dismissal of cases

by Frank Adams

In the last edition of this newsletter we failed to have the case thrown out and had to file an answer. Now that all the pleadings have been filed, there is a period of gathering evidence by both sides, referred to as discovery. Discovery can sometimes be one of the most expensive endeavors in defending a lawsuit. Once discovery is finished, the rules allow for yet another attempt to have the case disposed of before a trial by filing a motion for summary judgment.

The standard that the judge must follow in order to grant summary judgment and dismiss a case is stringent. Again it's geared toward allowing the plaintiff to have his day in court and not to prematurely kick him out of court. A motion for summary judgement is the first time a defendant gets to put some evidence in front of the judge for consideration.

The defendant must either point to evidence that has been collected during discovery or point to a lack of evidence on the part of the plaintiff to convince a judge that there are no material facts in dispute, and that he is therefore entitled to a judgment in his favor, thus ending the case. The judge is required to again view the evidence in a manner most favorable to the plaintiff and determine if there is any issue of material fact in dispute. Any doubt and the judge has to deny the motion, leaving a jury to determine whether that material fact is true or false, or whose version of that fact is to be believed.

The judge is only allowed to grant a motion for summary judgment in cases which are free and clear of doubt. More often than not, motions for summary judgment are not granted and the next step is for the case to go to trial.

So if you find yourself sued, you should contact your attorney as soon as possible to determine what defenses and actions are necessary to protect your rights. Your attorney will determine if it is advisable to file preliminary objections, a motion for judgment on the pleadings, or later a motion for summary judgment.