A motion to dismiss asks a court to end a case because of deficiencies in the claim, improper service of process, or other procedural problems. When writing a motion to dismiss or presenting arguments during a hearing, it is crucial to choose your words carefully. Here are seven things to avoid in a motion to dismiss a claim against you.
1. Failure to Address Elements of the Claim
In order to sue, a plaintiff must allege all the elements (or legal requirements) of the claim. For instance, a plaintiff suing for negligence must allege each of the following elements: a) the defendant owed a certain duty of care to the plaintiff, b) the defendant breached that duty, and c) the breach caused harm to the plaintiff. To get a negligence claim dismissed due to failure to state a claim, the defendant must show that at least one of these elements lacks facts in support. Ignoring elements of the claim could lead to a quick denial of your motion.
2. Misrepresenting Relevant Legal Precedents
If you have a weak position, you may be tempted to lean the case law in your direction. However, misrepresenting or misquoting legal precedents to suit your argument is a major mistake. It reflects desperation, dishonesty, and amateurish conduct. Thoroughly research and apply relevant case law to strengthen your position and maintain credibility.
3. Claiming that the Plaintiff Lacks Evidence
A complaint doesn’t require the plaintiff to prove their case. So, pointing to a lack of evidence in an early motion to dismiss is a waste of everyone’s time and shows your lack of legal knowledge. Evidence is collected during discovery. If after discovery, the plaintiff lacks evidence, then you can make this argument in a summary judgment motion.
4. Accusing the Judge of Bias
Accusing a judge of bias without clear and compelling evidence, especially in the early stages of a case, is counterproductive. Making baseless accusations can harm your relationship with the judge and negatively impact your case. Follow appropriate procedures in your jurisdiction to address any genuine concerns of conflict of interest or bias.
5. Going Off Topic
Emotions can run high during a case, and you want the judge to know your whole story. So, it’s easy to go off-topic and argue issues that have nothing to do with the complaint. Presenting arguments based on unsupported assumptions or peripheral matters weakens your case. Instead, focus on the complaint, addressing any missing facts, attachments, or other requirements. For help to avoid going off on tangents, see Keeping Your Motion To Dismiss On A Leash.
6. Attacking the Plaintiff Personally
Years ago, a Georgia man in a divorce case filed a motion to dismiss that was replete with personal attacks on his wife and her attorney, accusing both of being promiscuous, among other things. Needless to say, that motion to dismiss went nowhere because his focus was on attacking rather than conducting thorough research and making a good argument for dismissal. Too, such personal attacks can end in the immediate denial or striking of your motion. So, despite anger, hurt, or a sense of unfairness, maintain a professional tone and focus on legal arguments rather than engaging in personal attacks.
7. Introducing New Evidence
A motion to dismiss is not the appropriate stage to introduce evidence or new facts that were not previously presented. Stick to the facts alleged in the complaint and the applicable law. Introducing new evidence can be seen as an improper attempt to influence the court’s decision and may undermine your motion.
Done right, a motion to dismiss can effectively challenge your opponent’s claims, leading to dismissal of the case. However, certain statements or arguments can weaken your position and hinder your chances of success. Avoiding these seven things will help you present a strong, well-reasoned argument.
