From the start of a case, a defense attorney will strategize the various ways to dispose of some or all of the claims alleged against a client.

Two of the most common pretrial dispositive motions are motions to dismiss for failure to state a claim upon which relief can be granted and motions for summary judgment. 

These two tools in a defense attorney’s tool box are set out in rules of procedure for all civil cases in state and federal courts. 

A motion for failure to state a claim is a challenge made at the beginning of a case and strikes at the very heart of a lawsuit. It is a statement that, even if the plaintiff was given all benefit of the doubt ­and even if everything the plaintiff claimed were true - the claim should be dismissed because it is not legally cognizable or because sufficient facts have not been alleged to make out a cognizable claim. 

Generally, a judge considers only the pleadings in deciding this motion.  Dismissal is possible if the plaintiff failed to allege factual assertions for each required element of a cause of action. A plaintiff needs to do more than merely recite the law. This dispositive motion is often unsuccessful due to the general policy of construing a complaint liberally and for a preference to decide a claim on its merits.

A motion for summary judgment is a powerful tool. It can end a case entirely, dismiss portions of the case, or alter the course of the litigation. 

Often, a motion for summary judgment is filed at or near the close of discovery. A party generally attaches evidence like affidavits or exhibits to the motion. A judge considers the parties’ evidence and applies the law to grant or deny a motion for summary judgment. A summary judgment motion is granted when there is no genuine dispute of material fact and the movant is entitled to judgment under the law. 

These two pretrial dispositive motions apply generally to all civil cases.  Certain civil cases like medical malpractice cases may also be dismissed before trial pursuant to other case-specific rules. 

If a case is not otherwise settled or dismissed by a pretrial dispositive motion, it will become one of those rare cases that actually goes to trial.

John D. Martin is a trial lawyer and the managing partner of the Cranfill Sumner & Hartzog LLP’s Wilmington, North Carolina office. Martin concentrates his practice in the medical malpractice and professional liability defense practice groups. He has tried numerous medical malpractice and personal injury cases throughout eastern North Carolina. Many of his cases involve brain injury, birth trauma, paraplegia and wrongful death. Additionally, Martin has experience with large construction litigation, premises liability and hospital/workplace security. To contact Martin, call (910) 777-6018 or email him at [email protected].