Case Resolution Before Trial Motions

Pretrial Motions

Prior to trial, there are several steps that hasten the processing of issues once the case comes to trial. One step is the use of pretrial motions. Pretrial motions constitute a request on the part of the prosecutor or the defense team for the judge to make legal rulings about aspects of the coming trial. The party that desires a clarification of the law will make a formal written motion—termed a pleading—arguing its position to the judge. The other party to the case will also be allowed to respond in pleadings prior to the decision. Knowing that objections and rulings on objections may be perceived in a negative way by the jury, attorneys often seek to keep evidence out of trial through the use of pretrial motions rather than waiting for the trial to start. If successful, objecting to the use of evidence in pretrial motions also has the advantage of never allowing the jury any knowledge of a damaging line of evidence. Furthermore, when a pretrial motion is unsuccessful, the issue is preserved for appeal, since a full record of the decision is made.

Motion to Dismiss

A motion to dismiss involves a routine request by the defense for the judge to quash the indictment because it contains insufficient evidence to bind the case over for trial. This motion is sometimes filed even before the discovery process is completed. The court will generally consider the facts favorable to the plaintiff when deciding on a motion to dismiss. A motion to dismiss is generally filed on the basis of any of the following grounds:

  • Lack of subject matter jurisdiction: Subject matter jurisdiction is simply the power of the court to hear a particular type of case. Most state court systems include a two-tiered trial court structure. Usually the system includes a lower trial court with limited jurisdiction that can adjudicate only those civil cases in which the amount in dispute is less than a specified monetary sum and/or only certain criminal cases such as misdemeanors (but no felonies). A higher trial court typically has general jurisdiction or the authority to hear all civil and criminal cases that can be tried in that court system, including those that could have been heard in the lower trial court (but which the higher trial court permitted to bypass the lower court).
  • Lack of personal jurisdiction: Personal jurisdiction (also called “in personam” jurisdiction) is the authority of the court over a defendant in a given case. Unless the court possesses personal jurisdiction over the defendant, the court cannot execute a binding judgment against that individual or other entity. The court will not have jurisdiction over a person who does not have sufficient minimum contact with the court’s territorial jurisdiction. For example, you are a resident of New York and you have been involved in an accident in Texas but the party files a lawsuit against you in Michigan. In such cases, the Michigan court will generally lack persona jurisdiction over you unless you have some contacts in Michigan.
  • Venue: Venue, a relatively simple concept compared with jurisdiction, is the county or other geographical area where a case is to be litigated. Federal law as well as most state constitutions or statutes have venue requirements. Although subject matter and personal jurisdiction can usually be challenged during an appeal, even if they were unchallenged earlier, any objections to a court’s venue must be established by the defendant early in the suit (usually no later than in a pretrial motion to dismiss or in the answer) or be deemed waived. If the motion is allowed, the case is usually transferred to the proper venue.
  • Improper service: A motion to dismiss can be filed on the basis of insufficiency of process or insufficient service of process. This is a technical ground. The defendant must be properly served with the summons and the complaint according to the Civil Procedure Code. Your attorney can review the facts of your case and determine if the service on you is proper.
  • Demurrer: Demurrer is a motion to dismiss for failure to state a claim upon which relief may be granted. The plaintiff must provide a legal claim for the relief he or she is seeking against the defendant. There can be no relief in the absence of a legal claim. For example if the plaintiff is suing you under a statute but the statute does not apply to you, then the defendant cannot make a claim against you under that statute.

Summary judgment motion

A summary judgment motion is a pretrial device whereby the defendant asks the trial court judge to rule in his or her favor because no reasonable jury could find for the plaintiff, or because the plaintiff must lose as a matter of law. When a court rules on a defendant’s motion for summary judgment, it is supposed to consider the evidence in the light most favorable to the plaintiff. In theory, if a case presents close factual questions, the judge should deny the motion for summary judgment and send the case to trial, where the jury would decide the factual questions.

A motion for summary judgment allows the court to decide the entire lawsuit or a portion of the lawsuit without holding a trial (hence the term summary judgment). In such a motion, the parties identify “undisputed facts.” These undisputed facts are often supported by affidavits, documents, or other evidence obtained during discovery. During the motion for summary judgment, the judge applies the applicable laws to the undisputed facts and determines the outcome of the entire action or specific claims. If some of the facts that relate to an element of a claim are disputed, the judge will deny summary judgment and will hold an evidentiary trial. If there are “disputed material facts,” a trial will be necessary to resolve the disputed facts.

Motion for Default Judgment

Default Judgment is a civil judgment rendered by a court to a party because the opposing party failed to appear or participate after being served with notice. Generally once the defendant is served with the summons, he or she has 30 days to enter appearance and respond to the lawsuit. If the defendant does not respond to the lawsuit within 30 days, the defendant is said to be in default and the plaintiff can move a motion for default judgment. If a default judgment has been passed against you, you must apply to the same court to set it aside. You must explain the reasons for the default. The court will set aside the default judgment if it is satisfied with your explanations.

Would you like to discuss your legal matter?


image description
Jack Morgan CALL US! 866-205-4971

We will assist in scheduling new and existing clients for all offices. For initial consultations we will ask you a few questions and then find the best time for you to talk to one of the lawyers that best fits your legal matter.

Call us or use the email form and we will follow up with you right away.


The Law Offices of Hogan Injury will provide you with personalized attention and guidance. Protecting your rights is our main objective. We have been representing clients for the past 30 years and our experienced team of attorneys will advise you of the legal consequences of every decision you take.