Attorneys, claims representatives and/or insureds generally do not share the same understanding of motion practice in litigation. Most experienced insurance defense attorneys have such a thorough understanding of motion practice that it has become routine. However, claims examiners and insureds are often confused concerning the point and purpose of much of the art of motion practice. Further, certain jurisdictions use different terminology and have different rules regarding timeliness and procedure which can further complicate ones ability to understand the litigation practice in numerous jurisdictions.
When it comes to motion practice in Pennsylvania, New Jersey and New York some of the relevant terminology is different but the practice is very similar. Motions are filed during four distinct time frames:
Motions filed during the pleadings stage can be an effective tool. Federal Court, New Jersey and New York refer to such motions as a Motion to Dismiss. In Pennsylvania, the counterpart to a Motion to Dismiss is Preliminary Objections. A Motion for Judgment on the Pleadings can also be filed in most jurisdictions but is rarely used. Filing a Motion during the pleadings stage can be used to challenge the claims asserted in the Complaint on their face. It is a good opportunity to raise substantive legal issues which could result in the dismissal of some or all of the claims. Also, where a challenge to jurisdiction or venue is desired, a motion should typically be filed in the pleadings stage or may be waived. A Motion filed in the pleadings stage can set the tone for the entire litigation, win or lose. In the event that some or all of a plaintiff’s claims are dismissed it is clearly a victory. However, even if a substantive motion regarding the merits of the complaint is denied, it puts the Court and plaintiff’s counsel on notice that the defense believes certain claims are deficient and it will argue them at every opportunity until they are dismissed.
Unfortunately, a motion filed during the pleadings stage often has the effect of providing the plaintiff a “do-over.” More specifically, the Court generally allows plaintiff’s counsel to amend the complaint in an attempt to rectify deficiencies, which prompts another round of motion practice. It begs the question, why bother? The answer is because failure to raise these arguments from the outset could constitute a waiver subjecting a party to unwarranted and broad discovery based on the broad allegations in the complaint, or the claims pled and not challenged.
The majority of motion practice takes place during the discovery stage. There are many different types of motions which can be filed during discovery. However, the most common motion is one in which one party is requesting the Court for the other party to provide discoverable information. Also, discovery motions are necessary when an individual fails appear for a deposition or when a plaintiff fails to appear for an independent medical evaluation. In Federal Court and Pennsylvania said motions are known as a Motion to Compel. In New Jersey, the same motion is referred to as a Motion to Dismiss or a Motion to Strike depending on which party is seeking relief. In New York, said motion is referred to as a Motion Dismiss/Preclude/Compel.
Most of the motions filed during discovery are prompted by non-compliance or unreasonableness of the parties. More specifically, most discovery motions are needed because the parties simply refuse to provide discovery. Also, in litigious matters where there is a genuine disagreement regarding whether certain information is discoverable, motion practice is necessary. Many of these motions are fueled by unreasonable counsel which can drastically raise the cost of defending a claim. If counsel refuses to provide information which is discoverable and necessary to defend a claim there is simply no alternative to filing the appropriate motion. Failure to pursue the discovery via a motion could constitute a waiver and one may find themselves at trial without the necessary information.
At the close of discovery, the most common motion filed is a Motion for Summary Judgment. The point of filing the motion is to attempt to dismiss some or all claims asserted against the insured. Motions for Summary Judgment can be filed for a myriad of reasons but they all share the same common argument – opposing counsel cannot establish a genuine issue of fact.
It is important to note that a Motion for Summary Judgment can be filed during discovery. However, such motions are typically denied with the reasoning that the discovery period has not expired and opposing counsel has additional time to provide evidence which establishes a genuine issue of fact. But a motion for summary judgment can be successful during the discovery period in limited circumstances. For instance, if the case hinges on a claim controlled by a contract, immunity or by judicial notice among other limited issues, an early Motion for Summary Judgment may be appropriate and successful if future discovery will not or cannot produce additional facts.
The purpose of Pre-Trial motions or Motions in Limine are to seek to preclude opposing counsel from introducing or even mentioning evidence which is not admissible. All issues regarding substantive legal issues, facts related to the case, anticipated testimony of witnesses and expert opinion can be addressed in a Motion in Limine. All jurisdictions are different in terms of when these motions are filed and when they are heard. In Federal Court, Pennsylvania, New York and New Jersey many judges set their own deadlines as to when such motions are due. Motions in Limine are heard close to the start of trial. “How close,” generally depends on the Court, the number of pending motions and the perceived “size” of the case. Courts in Pennsylvania, New Jersey and New York could hear Motions in Limine anywhere from approximately one week before the start of trial to the morning prior to jury selection and sometimes at the end of the trial and before closing.
Motion Practice is generally the same in most counties in Pennsylvania, New Jersey and New York. However, many counties and judges have their own nuances and requirements. Therefore, it is imperative for counsel to review the local rules of the county where the matter is pending prior to filing a motion. Also, when practicing in Federal Court, counsel needs to review the assigned Judge’s personal rules and guidelines prior to filing the appropriate motion. Failure to adhere to local rules could lead to the denial of a strong motion.
Overall, an argument can be made that motion practice is expensive and often bears little fruit. However, the critical aspect of many motions is the practice is necessary to preserve the objection, refine the pleadings and fully defend the claims.