Attorney: I’ve reviewed this lawsuit that your opponent filed against you, and I’m not impressed. Normally I’d recommend that we simply file an answer denying the complaint, to keep the legal fees down, but I think we have a good chance of getting some or all of plaintiff’s complaint thrown out of court right away.
Client: How do we do that?
A: By filing a “motion to dismiss,” sometimes known as a “demurrer,” in lieu of an answer at this point. It’s a motion that basically challenges the plaintiff’s legal right to bring these claims against you at all, or tells the court that the claims pleaded against you are too defective in their wording. It’s a hard “counterpunch” by us back against your opponent.
C: Tell me how it works.
A: We tell the court that the plaintiff has no right to be in court on some or all of her claims. For example, your opponent has 4 claims in her complaint. One of them says you owe her money. She doesn’t say on what basis, such as because you signed a contract with her or orally promised to pay her. Instead, she merely says you’re “morally obligated” to pay her. Moral obligation is not a legally-valid claim in a civil lawsuit. Our motion to dismiss would take aim at that claim to get it thrown out completely.
C: So just because a plaintiff thinks somebody wronged them somehow, they can’t automatically turn that into a claim in a civil lawsuit?
A: That’s right. The law defines the available claims a plaintiff can and cannot bring in court. Those claims are the specific, pre-existing frameworks that a plaintiff must work within when preparing their complaint. If you can’t fit your facts and evidence into one or more of those frameworks, you can’t sue and win in court. Those are the rules.
C: So it’s basically that the law doesn’t allow you to try to fit a round peg into a square hole in suing someone.
A: Essentially, yes. Now I still need to know more about your case, but I suspect that your opponent has some weak claims in her complaint. I can tell she’s stretching here and there.
C: What about the other claims she has?
A: They are all legally-allowable in theory, however we can try to challenge her a second way with our motion to dismiss. Every claim requires the plaintiff to include certain minimum allegations in writing in the claim, which are called “prima facie allegations.” Without those minimum allegations, she can’t proceed with that claim. We can tell the court in our motion that she has failed to include all the required minimum allegations in her claims.
C: Is there a third way to challenge her?
A: Yes, it’s closely related to the second one about prima facie allegations. Let’s say she does include all the minimum allegations in her claims. However, the law says that certain more serious claims require a plaintiff to provide lots of supporting facts and details, over and above the prima facie allegations.
C: I’m not sure I understand. Give me an example of that.
A: Take the claim of “fraud” that she has pleaded against you. Fraud is a pretty serious accusation. The available damages for fraud are greater. So the law compensates for that by making the plaintiff plead the facts and details of the alleged fraud much more fully and completely. If the plaintiff is too vague, or generalizes too much in their fraud claim, they may not be allowed to proceed with it.
C: What happens if we do show that my opponent does not have the minimum prima facie allegations, or hasn’t included enough facts and details in her claims? Is the case over?
A: Not necessarily. It’s one thing for us to show that your opponent is not legally allowed to bring a certain claim at all. That’s fatal to her. But it’s a different result when she does present a valid claim, but just pleads it poorly by not using the right words, or enough words.
C: What does the court do to her then?
A: The judge would probably give her a few more chances to “cure” the pleading defects by filing what are called “amended complaints.”
C: Do we know if she’ll be able to cure the problems?
A: We can’t know at this point. But the burden would shift back to her to re-plead correctly. The ball would stay in her court.
C: What if she does fix the problems?
A: Then the court would allow her to continue with those claims, as re-pleaded. We would have slowed your opponent down, but not stopped her.
C: And if she doesn’t?
A: After a few chances at re-pleading, the court would probably permanently dismiss those claims. They’d be gone for good.
C: So it’s a wait-and-see situation for us?
A: That’s right. We knock the ball back in her court with our motion to dismiss, and see how she reacts.
C: How much does the motion to dismiss cost?
A: Fortunately, I won’t have to spend much time reviewing the actual evidence in the case, because we’ll be attacking the complaint more on technical, legalistic grounds in our motion. The evidence will come later.
C: What will you be doing?
A: Mainly legal research and drafting the motion papers. I’ll need to cite some case law precedents to the judge to show that your opponent’s claims either aren’t valid, or are too defective in wording. I’ll also have to go through each of her claims, one by one, in the legal brief that I prepare as part of the motion, explaining the reasons the court should grant our motion.
C: How long will the brief be?
A: Probably about 10 - 20 pages. Some courts have page limits on legal briefs.
C: So what’s the cost of the motion?
A: I estimate roughly 20 - 40 hours of my time, at my $250 per hour rate, to prepare all the court papers. That would include our opening motion, and any reply brief to the opposition. That's about $5,000 - $10,000 in legal fees. Then up to 2 hours more of my time for the court hearing on our motion, which is another $500. Plaintiff’s claims are not complex, but there are 4 of them. It just takes time to address each one of them in the brief and try to knock them out, one by one.
C: Then you need to tell me what the benefit is to me, as the client, of spending that much extra money on a motion to dismiss, if we’re not sure we can knock my opponent out completely by doing it?
A: That’s a fair question. Most clients never ask it. A lot of attorneys never discuss the pros and cons of a motion to dismiss with their clients in advance. I’d ask the same question if I were in your shoes. The purpose of the motion to dismiss is to put your opponent to the test right away in the case, and to signal to the judge that she may have some weak claims. It’s like a game of “chicken.” It costs money to play chicken with your opponent in a lawsuit.
C: So we’re trying to call her bluff, smoke her out, on some of her claims against me?
A: That’s right. You’re gambling extra money as a client on legal fees, but if we win, the case could either be over before it’s started, or at least we’ll make your opponent spend more time and legal fees getting her claims right.
C: I really do think her lawsuit against me is frivilous.
A: Then she’ll see that we’re going to fight hard, instead of simply answering her complaint. I’ve seen opponents quit at that point before. Or she may re-plead some of her claims, and drop others voluntarily. We’d narrow down the lawsuit against you that way, which is a good thing.
C: It sounds like there’s a psychological element here.
A: There is. We may get an early clue with our motion to dismiss about just how strong your opponent’s will, and checkbook, is to keep going. So you have to decide if you want to call her bluff early on, to test her.
C: To recap, it sounds like we could get a partial knockout on some claims, but probably not a complete knockout on everything.
A: That’s a good way to look at it.
C: Any other costs for the motion to dismiss?
A: Less than $50 for the motion filing fee with the court.
C: Because you’ve leveled with me about the upside and downside of the motion to dismiss, instead of painting too rosy a picture, I’ll take the risk of spending the extra legal fees on it. I agree it’s a good tactic by us. I just don’t want to let my expectations get too high.
A: I’d rather level with you up-front about it, so you don’t get upset with me later for not telling you what to realistically expect.
C: What happens if the court denies our motion, or if the plaintiff ends up re-pleading correctly?
A: Then we have to answer the complaint, just as we would have done anyway.
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© 2008 Ken Moscaret. All rights reserved.