Defendant's Response & Motions in Civil Litigation

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  • 0:05 Who Exactly Is…
  • 0:57 Pre-Trial Motions
  • 5:20 Motions During a Civil Trial
  • 6:06 Lesson Summary
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Lesson Transcript
Instructor: Kat Kadian-Baumeyer

Kat has a Master of Science in Organizational Leadership and Management and teaches Business courses.

Once a plaintiff initiates a civil lawsuit, the defendant must respond within a certain period of time depending on the particular state's requirements. The defendant responds by answering the complaint or filing a motion with the court.

Who Exactly Is Involved in a Civil Trial?

Before we delve into the complexities of a civil trial, let's take a quick look at the players in any civil trial. There is a plaintiff, or the one who initiates the lawsuit, and a defendant, or the person to which a court action is against.

To set this in motion, let's say Jenny sold Barry her used car. Barry was happy with the car until he reached about a block away from Jenny's home. This is when smoke began billowing out of the engine and all four tires popped. Barry urgently called Jenny and demanded his hard earned cash back in return for the confounded clunker. When Jenny refused, Barry took the car conundrum to court. As the plaintiff, Barry initiated the civil action for the return of his money. Jenny, the defendant, answered to the allegations against her. While this seems pretty simple, there are a few steps along the way worth exploring.

Pre-Trial Motions

We know that Barry purchased Jenny's clunker. The car broke down within only a few blocks from Jenny's house. Barry initiated a lawsuit, and Jenny answered.

Let's focus on Jenny as she defends herself against Barry's lawsuit. The first thing Jenny will do is answer the complaint by providing the court with a written statement where she will either accept the claims against her or deny them. Jenny does not have much time to respond to Barry's allegations. Most states recognize that a defendant has 21 days to answer. In the answer, the defendant accepts or denies the facts of the case and will try to convince the court why the plaintiff should not win.

The defendant can plead affirmative defenses, or the defendant's response to charges and reasons why the plaintiff should not sue. Some affirmative defenses that Jenny may use are:

  • Statute of limitations, or the amount of time one has to file a lawsuit, may have expired
  • Contributory negligence, or the percentage of negligence the plaintiff contributed, to the ailing automobile

Let's take a quick look at how each of the above may work in Jenny's favor. If Barry waits too long to file his lawsuit with the state using the date of the incident as the date at issue, he may lose his right to sue.

An equally compelling defense may be that the plaintiff contributed to the car's demise. Jenny may try to prove that Barry drove over nails, causing the tires to pop. Jenny can even file a counterclaim against Barry. The counterclaim asks for damages from the plaintiff. Since the car is in disrepair, Jenny may have a cause of action to sue Barry for leaving her without a salable vehicle.

The next step the defendant takes is filing a motion, or a written request to the court to take specific action. Rule 12(b) allows for the defendant to file pre-trial motions requesting the court to take action on the case prior to the trial. There are several pre-trial motions that a defendant can file. Here are a few common motions:

  • Motion to dismiss
  • Motion for summary judgment
  • Demurrer
  • Motion for discovery
  • Motion for a pre-trial conference

A motion to dismiss is a written request by the defendant asking the court to throw out the claims against him and is usually granted in cases where the evidence in the complaint is enough to make the decision. If the complaint requires further investigation or discovery, the motion probably will not be granted. There are several instances where a motion to dismiss is granted:

  • The complaint was not filed in the proper court
  • The court does not have proper jurisdiction over the case
  • The complaint was improperly served
  • There are other parties to the suit that may have not been properly named

If a motion to dismiss is not granted by the court, the defendant may file a motion for summary judgment, a written request of the court to settle all or part of a case without further evidence or trial. A defendant can also file a demurrer requesting that the court dismiss any or all parts of the case because there is no legal base for a lawsuit.

Jenny may file a demurrer with the court claiming that the car was sold as-is, and even though the malignant motor vehicle did not make it more than a few blocks, Barry was made aware that he was buying a car at his own risk.

If Barry files a motion for discovery, what he is doing is requesting that the court or the opposing party provide material or information relevant to the case. Barry may request a copy of the purchase contract to determine whether there, in fact, was an as-is clause written in the document. He may also request any and all repair records to determine whether Jenny was negligent about servicing the vehicle.

Contrary, Jenny may request Barry's driving and accident record, information on past car purchases and even a road condition report from the scene of the incident to determine whether Barry is a safe driver, has sued others for a similar action, or if the roads were damaged, causing the tires to pop.

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