HOUSTON – For personal injury suits, it is almost always preferable for both the plaintiff and the defendant to find a resolution before the case has to go to trial. There is a process to a personal injury suit. Before the trial phase is the litigation process. This is when the parties involved in the suit try to reach an agreement for a settlement so that the case isn’t escalated to court.
Attorneys can use motions to resolve questions about your lawsuit. A motion is a request that your personal injury attorneys can make to the court to rule in a specific manner. If they motion the court to terminate the case before the litigation process even begins, it is termed a “dispositive motion.”
If the motion is made by your lawyer due to an incidental question that is discovered during the litigation process, then the term used is the “nondispositive motion.” There are several ways that your lawyer can try to maneuver your case through motions that can either save you from litigation altogether or can make your case stronger during the litigation process.
A motion to dismiss
A “motion to dismiss” can be filed during the beginning phases of the litigation process, and it must be filed before any parties involved have gone through the discovery phase. The motion is filed when the defendant believes that the complaint levied against them is not valid. Once a motion to dismiss has been entered, it is the court’s duty to examine the specifics of the case and to rule that either there is validity to the claim or there is not.
A motion to dismiss is based on one or more of the following deficiencies in the claim
Lack of subject matter jurisdiction
Lawyers can file a motion to dismiss a case based on the fact that the court hearing the case does not have the power to settle the controversy. An example would be if a person brought a case before a criminal court, but the case was one that should be under the jurisdiction of a family court.
Lack of personal jurisdiction
Lawyers can file a motion to dismiss a case if the court doesn’t have the jurisdiction to rule over the defendant who is being accused personally. A court will lack jurisdiction over someone if they lack the sufficient minimum contacts for which the case itself has been filed. An example would be if you were named in a lawsuit for an automobile accident in Nevada, but you live in Illinois. You might argue that the Nevada court does not have jurisdiction over you.
In legal terms, “venue” refers to the location of the court. States have specified places within it where a person can be sued. If someone is sued outside of their “venue,” then the site of the lawsuit can be declared inappropriate. Although it might lead to a dismissal of your case, there is a greater likelihood that the case will be moved to the proper venue.
Insufficient service of process or insufficient process
If there is a technical defect in the way that you were given summons, or if you were not correctly served your summons, then your lawyer may file a motion to dismiss. Service can be incorrect for many reasons, so if you are hiring a personal injury lawyer, make sure that you tell them the exact specifics of how you were served the summons to appear for a personal injury lawsuit.
Failure to state the claim for which relief may be granted
There are instances where your lawyer may try to conclude that the facts of the complaint do not have a legal claim for relief. An example would be if the person initiating the suit alleges that you were negligent. If your lawyer can prove that you had no obligation to take reasonable care at all, they may ask for a motion to dismiss.
Motions are legal maneuvers that personal injury lawyers make before any personal injury suit moves onto the litigation process or lawsuit. They are a way to petition the court to stop the case from moving forward.