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
Jasonpathfinder3

3 Retirement Planning Tips for the Last 3 Years Before Retirement

Jason Wheeler - Pathfinder Wealth Consulting
Cfss headshots parker robert webversion 21422121214

AI Is Driving Up Rates -- and Battery Value

Robert Parker - Cape Fear Energy Systems
Jeffbourk2024highres1

ILM Insights – Part 3: The Business Impact of a Growing Airport

Jeff Bourk - Wilmington International Airport

Trending News

Ashworth Joins Mincey Bell Rhoades Law Firm

Staff Reports - Sep 15, 2026

Brunswick County Planning Board To Consider 450-home Development Plans

Cierra Noffke - Sep 14, 2026

Pipe And Valve Distributor Opens Wilmington Branch

Staff Reports - Sep 15, 2026

Wilmington-area Companies Named Finalists For NC Tech Awards

Cierra Noffke - Sep 15, 2026

Southport-Oak Island Chamber Announces Summer Awards

Staff Reports - Sep 15, 2026

In The Current Issue

Nonprofits Stretch To Meet Food Needs

Rising food costs have hit low-income families particularly hard, a nonprofit organization official said, while cuts and other changes to th...


Pastor Helps Those With Addictions

Funded by donations, offerings and grants, Hope Recovery is permanently housed in the former Devon Park United Methodist Church and hosts mo...


Inventory, Discernment In Luxury Market

At $1 million and above, buyers have more choices than they did during the pandemic-era market, and they have more time to make decisions, a...

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