Methods To Short-Cut Litigation

Motions To Dismiss And For Summary Judgment

commercial litigationAsk anyone who has been involved in commercial litigation – it quickly gets very, and sometimes, very very, expensive, particularly when the legal fees are based on hourly time charges. And even if you win the lawsuit, unless an applicable statute or contract provides otherwise, there is no recovery of any portion of those legal fees from the other side. The longer a lawsuit goes on and, thus the more hours spent by your attorneys, the greater the amount of legal fees and costs you incur. And this holds true whether you are a plaintiff bringing a lawsuit, or a defendant against whom a lawsuit has been filed.

So, aside from settling the lawsuit early on, is there any way to short-cut the process (or at least reduce the scope of the case) and thereby reduce the amount of legal fees and costs? Fortunately, the answer is, “yes,” sometimes.

In general, there are two different procedures, either one of which can, if successful, end a case or at least narrow the issues that will need to continue to be litigated. The first of these procedures is known as a motion to dismiss, and the other is referred to as a motion for summary judgment.

The Motion to Dismiss

A motion to dismiss is an application to the court asking that the lawsuit be dismissed, and litigation avoided, for one or more reasons. Such application is typically made at the very earliest stages of the lawsuit. If granted, depending on the reason for dismissal, the lawsuit in its entirety or at least parts of it, may permanently be over (referred to as dismissal with prejudice), subject only to the possibility of an appeal which, if successful, would reinstate what was dismissed.

A motion to dismiss is typically made by a defendant, arguing that there is a recognized basis for dismissing the case in whole or in part. If the defendant has filed an Answer to the Complaint containing claims against the plaintiff (referred to as counterclaims), then the plaintiff may file a motion to dismiss these claims. The bases for granting a motion to dismiss include, among others: that the lawsuit has been brought too late because the statute of limitations has run, that the issues in the lawsuit were previously determined in another proceeding, that the court lacks proper authority over the defendant (referred to as jurisdiction), that there is a release between the parties which precludes the present lawsuit, and/or that the claims as alleged, even if true, do not state claims that are recognized under the law. There are other bases as well for dismissing a complaint, or parts of one, on a motion to dismiss.

The applicable standard on a motion to dismiss varies somewhat depending on whether the case is in New York state court or federal district court. In both jurisdictions, however, it is common for a defendant to seek to dismiss the complaint, or certain claims within the complaint, in response to the lawsuit having been filed. If the entire complaint is dismissed, it could well spell the end of the case forever. And even if only some of the claims, but not all, are dismissed, this is beneficial to the defendant because it narrows the issues and facts to be litigated going forward, and hence the scope of discovery, and the issues to be considered on summary judgment (discussed below) and also at trial.

Motions to dismiss, even when unsuccessful, are strategically helpful because they send a message to the plaintiff that the defendant is going to strenuously oppose the lawsuit. In addition, depending on the judge who is handling your case, the pendency of a motion to dismiss may stay any further proceedings in the lawsuit until the motion is determined. This has obvious strategic advantages for a defendant. Further, motions to dismiss, while pending and thus not yet decided by the Court, can sometimes help foster a settlement between the parties because the plaintiff is at risk of having its entire case dismissed while, at the same time, the defendant is at risk of having the case continue.

Whether or not it makes sense for you to file a motion to dismiss and what might be strong arguments supporting or opposing the motion, should be discussed with your legal counsel.

The Motion for Summary Judgment

As mentioned, there is a second type of motion that can sometimes be filed to potentially short-circuit a case from moving forward. This second type of motion is known as a motion for summary judgment, and although different than a motion to dismiss, the goal is similar. When either a plaintiff or defendant files a summary judgment motion, it is saying to the court that the case should be determined in its favor. Usually, such motions are filed after discovery is concluded and each side knows what evidence (or lack of evidence) the other has. Significantly, a summary judgment motion can be filed not only by a defendant but also by a plaintiff. As a result, it is not unusual for both sides to seek summary judgment at the same time.

A motion for summary judgment can be based on many different reasons. Always, however, a party seeking summary judgment is telling the court that there is no need for a trial; the court can decide the merits of the case on its own as a matter of law. A motion for summary judgment may be based on the assertion that the discovery process has shown that the other side cannot prove its case. Or, the motion may claim that there is no genuine question of material fact as to what occurred, thereby compelling a determination in its favor. A motion for summary judgment may be based on testimony that was elicited from the other side in depositions, or documents uncovered from the adversary which are conclusive as to which side prevails on the merits. Whatever the basis for the motion, a summary judgment motion is a powerful tool for both plaintiffs and defendants and if granted, can end the case or limit the issues to be determined at trial.

Although a motion seeking summary judgment is typically made after the discovery process is complete, if granted, it avoids the parties having to prepare for and conduct a trial – two very labor intensive and hence costly aspects of litigation.

And, similar to a motion to dismiss, the pendency of a motion for summary judgment which may be dispositive for one party or the other, places pressure on both sides to consider settlement. Thus, there are often both good substantive and strategic reasons for seriously considering filing a motion for summary judgment.

The Need For Experienced Business Litigation Counsel

Business litigation can be not only expensive but consume other resources such as your time and attention and can serve as an unwanted distraction from your business’ demands and goals. Sometimes, however, litigation cannot be avoided and needs to be vigorously pursued. Having skilled and experienced legal counsel like the attorneys at Kravet & Vogel, LLP to guide you through the process and advise you as to your options, can often prove invaluable.