Follow John Linkedin Twitter Facebook
Email John Email
Legal Issues
Sep 22, 2016

Pre-Trial Dispositive Motions: A Defense Attorney’s Tool Box

Sponsored Content provided by John Martin - Professional Liability and Medical Malpractice Defense Attorney, CSH Law

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]  
 

Wbj insights revised 0510 6291692911
Ico insights

INSIGHTS

SPONSORS' CONTENT
Whalinheadshot11

A Commitment to Care and Community in Our Coastal Region 

Laurie Whalin - Novant Health
17290874517631

Fall Is the New January for HR Planning

Andy Almeter - Leath HR Group, LLC
Morton300x300

Community College in Action: A Success Story

Jim Morton - Cape Fear Community College

Trending News

7-Eleven Planned At Carolina Beach Road Intersection

Emma Dill - Aug 25, 2026

Hilliard Joins Live Oak Bank

Staff Reports - Aug 25, 2026

As It Vies To Build Hospital Here, Atrium Health Buys 65 Acres In New Hanover County

Cierra Noffke - Aug 24, 2026

Becker Morgan Group Ranks On Top Architecture Firms List

Staff Reports - Aug 25, 2026

Heart Association Recognizes Local Novant Health Facilities

Staff Reports - Aug 25, 2026

In The Current Issue

UNCW Master Plan Picks Up Steam

The proposed projects range from a welcome center and new residence hall to a hotel and conference center, along with renovations to several...


Carolina Beach Boardwalk Area Evolves

The mayor said town officials expect to go before the N.C. Local Government Commission in September for financing approval for the land purc...


Protocase Firms Focus Growth Here

In five years, the Proto companies plan to generate $1 billion in annual revenue, according to Protocase co-founder Doug Milburn....

Book On Business

The 2026 WilmingtonBiz: Book on Business is an annual publication showcasing the Wilmington region as a center of business.

Order Your Copy Today!


Galleries

Videos

2024 Power Breakfast: The Next Season