The Importance of Pre-trial Motions to Your Case

After the plaintiff files a lawsuit, several pretrial motions can be made by either party before the actual trial begins. The party that files the motion is called the movant, and the party responding to the motion is called the respondent. Usually, the goal of pretrial motions are to limit or narrow the issues for trial.

In our blog detailing how to file a lawsuit, we said that discovery starts after the defendant responds to the lawsuit. However, there are many different ways a defendant can respond to a lawsuit. First, the defendant can answer the lawsuit. An answer consists of the defendant admitting or denying each paragraph of the complaint. 

The first pretrial motion the defendant can use to respond to a lawsuit is called a demurrer. Virginia Code § 8.01-273 details the grounds and requirements of a demurrer. A demurrer is a motion that the defendant makes when they believe that the plaintiff failed to state a viable cause of action in their complaint. In personal injury cases, demurrers usually revolve around defendants asserting that the plaintiff did not allege a viable negligence claim. To allege a proper negligence claim, plaintiffs must allege that the defendant owed a duty to the plaintiff, that the defendant breached that duty, and that the breach of their duty caused harm to the plaintiff. Defendants usually use demurrers when they believe that the plaintiff did not allege a duty that the defendant owed or that the plaintiff did not allege a breach of a duty.

Another pretrial motion that defendants use to respond to a complaint is the plea in bar. A plea in bar is a response from the defendant that asserts the plaintiff is barred from their claim. Plea in bars are usually evidentiary hearings, and parties complete discovery on the issue raised in the plea in bar. In a plea in bar, the defendant is alleging why the plaintiff is barred from recovery. Examples of plea in bars are statute of limitations or sovereign immunity defenses. For example, in negligence claims in Virginia, plaintiffs typically have two years from the date of the injury to either settle the case or to file the lawsuit. If the plaintiff attempts to file a lawsuit after that two-year time period, a defendant could file a plea in bar on the basis that the statute of limitations has run and, therefore, the plaintiff is barred from recovery.

Another motion that is not as frequently used as the motions above is a motion craving oyer. A motion craving oyer is a motion that, if granted, requires the plaintiff to file with the Court documents mentioned in the pleadings that were not attached. Usually, motions craving oyer are used in breach of contract actions where the contract that is being sued upon was not attached in the complaint. 

Once discovery starts, two pretrial motions commonly used are motions to compel and motions in limine. There are several scenarios where a motion to compel could be used. For example, when a deponent does not answer a question in a deposition, if a corporation does not make a corporate designee available for deposition, or if a party does not answer interrogatories or requests for production of documents. Rule 4:12 of the Supreme Court of Virginia details the motion to compel. A motion to compel must be accompanied by a certification that the moving party has in good faith attempted to confer with the nonresponding party to resolve the issue without court action. Motions to compel can also be used when the party serving the discovery believes that the responding party provided evasive or incomplete answers. If the motion to compel is granted, a court order will be entered that compels the responding party to either respond or produce whatever necessitated the motion. 

Motions in limine (in Latin meaning on the threshold) are pretrial motions primarily used to obtain rulings concerning whether a particular type of evidence, or the testimony of a particular witness, will or will not be admitted at trial.  As having key evidence helpful to your case admitted and damaging evidence excluded, motions in limine are critically important. For example, if the testimony of an expert is needed to win your case (a toxicologist testifying that the driver was drunk when he caused the crash), and you expect your opponent to seek to bar the toxicologist from testifying, the experienced lawyer will seek to have the court rule on that issue before the trial. Motions in limine can be used offensively, to obtain a ruling that a particular piece of evidence will be admitted, or defensively to obtain a ruling excluding certain evidence. Motions in limine are important tools to sort out evidentiary issues before the parties are in front of a jury and thereby help in the trial moving smoothly and efficiently.  Common examples of motions in limine involve whether expert testimony is needed or whether the expert has the proper qualifications to testify. Other matters often the subject of motions in limine involve exhibits such as injury photographs or medical illustrations reflecting the injury or a medical procedure such as a surgery.  

In addition to the pretrial motions discussed above, there are many other, lesser-used, pretrial motions available to both parties. The strategic use of pretrial motions are an effective way to best prepare for and present your case to a jury.