From the Desk of Lenden Webb
A Revised Video-to-Audio Transcription
Clients often ask me at the beginning of lawsuits “Well we’ve been sued. Shouldn’t we file a demur or motion to strike or argue with their complaint?”
The challenges in a motion to strike or a demur is that, in the early stages, the pleadings are taken as if everything said in the pleading (being the complaint) is true. You cannot bring in extrinsic evidence to argue or try to change or go in derogation of what’s in the complaint and what’s been pled.
So a demur at the beginning stages, a motion to strike should only be used, in my mind and in the minds of many insurance companies out there who we’ve worked for, if there is a dispositive claim where you can take some piece of the complaint, take it out and then you never have to deal with it again.
At that point, it is wise to file a demur or motion to strike because you limit the amount of discovery and depositions and written interrogatories that can be asked on that issue. Additionally, you can save yourself money.
However, if it is not dispositive of that particular element of a lawsuit of that claim or that cause of action, all you do is you educate the opposing side because leave to amend is freely granted. It’s actually a mistake of law if the judge does not give the plaintiff leave to amend. So only do demurs and motions to strike if they are dispositive and they actually dispose of a cause of action, a factor, an allegation; something along those lines.
Key Points:
- “The challenge with litigation is that there are two sides to the story.”
- “We do our best to educate and to make sure we have the facts from [clients] in order to dispel any concerns or questions from the beginning of litigation.”
- “As far as managing costs, we have a team that is bottom-heavy, instead of having a litigation firm with a lot of attorneys billing between $200 and $300 an hour, we have a lot of college graduates who have applied for and been accepted into law school, who are almost attorneys, who are billing at usually a fourth of the rate as an attorney.”
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