Judicial Preparation for Motions in Civil Cases

By John DiMotto

In my last post, I discussed how a judge prepares for and approaches a scheduling conference in a civil case. It is the first time the judge addresses the case with the lawyers. Usually, the next time the case is before the court is when various pretrial motions need to be resolved.

There are many different types of motions that will come before the court during the discovery phase of the case. These include a motion to dismiss, motion to compel discovery, motion for summary judgment, motion for judgment on the pleadings, motion for sanctions, motions after verdict, etc. In this post I will discuss some of the pretrial motions leading up to the trial itself.

A motion to dismiss is usually brought by the defense when they believe that the plaintiff's complaint fails to set forth a claim for relief, that is, does not set forth facts which support a cause of action. For example, if a Minnesota Vikings fan filed a lawsuit against Bret Favre for throwing an interception at the end of the NFC Championship game, Favre's lawyers would undoubtedly file a motion to dismiss because the law does not allow such a lawsuit. (Some might say it should but it does not.)

A motion to compel discovery is usually brought when a party believes that another party has failed to comply with Wisconsin's discovery statutes. The purpose of discovery statutes is to give every party the opportunity to discover what the case is all about. Discovery can be had via, written interrogatories (asking a party to answer a series of questions about the case); request for production of documents, requests to admit that certain facts are true, requests to test evidence and depositions (taking testimony from parties or witnesses about what they know about the case) just to name a few of the mechanisms for discovery. If a party refuses or neglects to provide information which is discoverable, relief can be sought from the judge. If the judge grants the motion, not only is the party entitled to obtain the discovery information but the prevailing party is entitled to be "compensated" by the defaulting party. This is in the form of a sanction. Usually, it is money but can be by the court putting restrictions on the defaulting party's evidence.

A motion for summary judgment is brought when a party believes that even if the evidence of the opposing side is true that the opposing party can not prevail and the moving party is entitled to judgment as a matter of law. An example would be in a case where insurance coverage is in issue. If the policy clearly stated that it did not provide coverage if A, B and C were present, and if A, B and C were, in fact, present - and there was dispute in this regard, a motion for summary judgment can be brought because there is not triable issue of fact. A party is not entitled to a trial if the facts are not in dispute.

A motion for judgment on the pleadings is brought when a party contends that a pleading by an opposing party does not "join issue." When a plaintiff files a lawsuit, he/she does so via a complaint. The defendant in the lawsuit must file an answer to the complaint. In essence, it must contain a denial of the allegations in the complaint or set forth affirmative defenses. If it gives an explanation but does not raise a defense or contain a denial, the plaintiff may bring a motion for judgment based on the fact that the facts in the complaint are not controverted. In such a case, the judge would undoubtedly grant the motion.

These are just a few examples of motions that can be brought to narrow the focus of the case so the trial will be streamlined.

In my next post, I will address one more motion which is much more substantive and which addresses the admissibility of evidence for the trial itself - the motion in limine.