Post by Jim on Sept 1, 2010 20:24:22 GMT -5
There are several ways to dodge a lawsuit.
Whether you're a plaintiff or defendant, you must know what defendants can do to dodge a lawsuit.
How to dodge, if you're a defendant.
How to stop the defendant from dodging, if you're a plaintiff.
If a defendant is served with a complaint, he may be able to dodge the lawsuit by filing motions to avoid filing an Answer!
This tactic is sometimes called the flurry of motions.
However! Once a defendant files an Answer, he's locked in and misses this chance to dodge the lawsuit.
Inexperienced lawyers and pro se people make a common mistake and file an Answer to the plaintiff's Complaint ... instead of using the flurry of motions:
Motion to Dismiss
Motion to Strike
Motion for More Definite Statement
Each of these motions postpones the necessity of filing an Answer to the plaintiff's Complaint ... and gains you valuable time and evidence-gathering opportunities!
In some cases it puts an end to the case. Period!
Here are just a few points you absolutely must know.
Motion to Dismiss: There are several grounds for filing this motion. Here are a few.
Lack of Subject Matter Jurisdiction
Improper Service of Process
Improper Venue
Failure to State a Cause of Action
The last of these is the most common! If you don't yet understand causes of action and their elements, you are not yet ready to win in court. The most important piece of knowledge you can learn about lawsuits is that they proceed on one or more causes of action, and each cause of action has certain required elements that must be alleged and ultimately proven.
Motion to Strike: The following are a few of the many grounds for filing this motion:
The Complaint Contains False Allegations
The Complaint Contains Scandalous Allegations
The Complaint Contains Impertinent Allegations
The first of these is very powerful and is sometimes called a Motion to Strike Sham Pleading.
Know them all, however.
Motion for More Definite Statement: This motion should be filed when a Complaint is so poorly-written that a reasonable person would have difficulty understanding what it says, i.e., what the plaintiff is complaining about.
The court cannot require you to file an Answer if the Complaint is so poorly-written that no reasonable person could discern what the plaintiff is saying. For example, file this motion when sentences in the Complaint have no verb!
If you are sued, do NOT file an Answer until you use all these motions that apply to the circumstances!
Failure to use the Flurry of Motions weakens your case and, of course, misses a valuable opportunity to dodge the case altogether.
Even if you fail at dodging the case altogether, there are many positive advantages to making the attempt.
Never file an answer if you don't have to!
Whether you're a plaintiff or defendant, you must know what defendants can do to dodge a lawsuit.
How to dodge, if you're a defendant.
How to stop the defendant from dodging, if you're a plaintiff.
If a defendant is served with a complaint, he may be able to dodge the lawsuit by filing motions to avoid filing an Answer!
This tactic is sometimes called the flurry of motions.
However! Once a defendant files an Answer, he's locked in and misses this chance to dodge the lawsuit.
Inexperienced lawyers and pro se people make a common mistake and file an Answer to the plaintiff's Complaint ... instead of using the flurry of motions:
Motion to Dismiss
Motion to Strike
Motion for More Definite Statement
Each of these motions postpones the necessity of filing an Answer to the plaintiff's Complaint ... and gains you valuable time and evidence-gathering opportunities!
In some cases it puts an end to the case. Period!
Here are just a few points you absolutely must know.
Motion to Dismiss: There are several grounds for filing this motion. Here are a few.
Lack of Subject Matter Jurisdiction
Improper Service of Process
Improper Venue
Failure to State a Cause of Action
The last of these is the most common! If you don't yet understand causes of action and their elements, you are not yet ready to win in court. The most important piece of knowledge you can learn about lawsuits is that they proceed on one or more causes of action, and each cause of action has certain required elements that must be alleged and ultimately proven.
Motion to Strike: The following are a few of the many grounds for filing this motion:
The Complaint Contains False Allegations
The Complaint Contains Scandalous Allegations
The Complaint Contains Impertinent Allegations
The first of these is very powerful and is sometimes called a Motion to Strike Sham Pleading.
Know them all, however.
Motion for More Definite Statement: This motion should be filed when a Complaint is so poorly-written that a reasonable person would have difficulty understanding what it says, i.e., what the plaintiff is complaining about.
The court cannot require you to file an Answer if the Complaint is so poorly-written that no reasonable person could discern what the plaintiff is saying. For example, file this motion when sentences in the Complaint have no verb!
If you are sued, do NOT file an Answer until you use all these motions that apply to the circumstances!
Failure to use the Flurry of Motions weakens your case and, of course, misses a valuable opportunity to dodge the case altogether.
Even if you fail at dodging the case altogether, there are many positive advantages to making the attempt.
Never file an answer if you don't have to!
