When you are involved in a personal injury lawsuit, or a lawsuit of any kind for that matter, one tactic that the defense will likely use is the filing of a Motion to Dismiss, and/or a Motion for Summary Judgment. Any type of dispositive motion that the defense can file to do away with the case prior to putting the case before a jury would be good for them, so you can’t fault them for filing these motions, right?
While both a Motion to Dismiss and a Motion for Summary Judgment are considered dispositive motions since they can dispose of some or all of the causes of action in a case, as a Plaintiff, you should be prepared to face them. However, while they may sound similar, these two motions are very different.
A Motion to Dismiss will be filed if the defense believes there is some fatal defect in the pleadings that prevents the case from going forward. The most common Motion to Dismiss is based on Federal Rule 12(b)(6), which alleges that the Plaintiff failed to state a claim, or a failure to state facts, upon which relief can be granted. As is the case with the old common law demurrer, in a motion under Rule 12(b)(6), the facts of the Complaint are assumed true for purposes of the motion to dismiss, and the case must be dismissed if it fails to state a claim upon which relief can be granted. This is why the drafting of the Complaint when filing your lawsuit is of utmost importance. You don’t want to lose your case before you even take the field, so it’s important to hire a personal injury lawyer trusts to handle your case.
A Motion for Summary Judgment is filed if the defense believes that no genuine issue of material fact remains, and that the case should be dismissed or contemplated as a matter of law. The key words in that phrase are “genuine,” and, even moreso, “material.” There will always be some dispute of the facts in a particular scenario, but the key is whether a genuine issue of material fact exists. An experienced personal injury attorney can help you develop a strategy to get your case beyond these motions and in front of a jury to successfully pursue your case.
For these reasons, it is imperative to hire a veteran litigator and experienced trial lawyer who has been involved in personal injury cases for years.