Court Motions

The following is part four of our series outlining a basic court case from beginning to end.  Previously we discussed:

• Meeting With an Attorney for the First Time: What You Can Expect?
• Beginning the Lawsuit through Initial Court Papers
• What is Discovery?

This month we discuss Court Motions and will explain some of the legal documents required leading up to your Trial.

Note: This material is provided for informational purposes only and should not be taken as formal legal advice.

Court Motions

Once a lawsuit is filed, it progresses toward trial according to the Rules of Procedure.  One aspect of the rules concerns the subject of “motions”.

A motion is the legal term for a request, usually in writing, by an attorney to the Court.  The request may be from either side, Plaintiff or Defendant, and it can deal with a wide range of issues.  As a rule, a party is asking the Court to either grant its request for something, or to question, limit and, in some cases, to block an action or request for information sought by the opposing party.

Two basic types of motions are often part of most cases.  A nondispositive motion is a motion that requests the Court’s intervention on a matter in the ongoing litigation.  An example of a nondispositive motion is a Motion to Extend Time to Answer Interrogatories.  Basically, you are asking the Court to extend the thirty-day period the Florida Rules of Civil Procedure give you to answer questions served on you by a defendant.

A dispositive motion is a motion whose outcome could end your case.  Three examples of such a motion are: Motion for Judgment on the Pleadings, Motion for Summary Judgment and Motion for Default Judgment.

A Motion to Dismiss is usually filed in the beginning of a case before the parties get started with discovery, that is, the process of gathering facts and evidence about the matter in dispute.  Generally, the motion to dismiss is based on deficiencies in the complaint.  The basis of a motion to dismiss can be lack of subject matter jurisdiction (the court you filed the complaint in cannot rule on this particular case), lack of personal jurisdiction (the defendant does not have enough contacts in the jurisdiction where the lawsuit has been filed for the court to accept jurisdiction), improper venue (the lawsuit was filed in the wrong location), insufficient service of process (there was a technical or other defect as to manner in which the complaint was served on the defendant), or failure to state a claim upon which relief may be granted (the defendant is claiming that they do not have a legal responsibility under the circumstances stated in your complaint).

A Motion for Default Judgment is a motion that can end the case because the defendant is in default.  A default means that the defendant didn’t answer the complaint and failed to file a motion in place of an answer.  Once a default is filed, a defendant can ask the court to vacate the default.  Usually the Court prefers to grant a motion to vacate default so the case can be contested on its merits instead of entering a judgment against the defendant without a trial on the merits.

DID YOU KNOW ADULT CHILDREN HAVE NO LEGAL CLAIM FOR DEATH OF A PARENT FROM MEDICAL NEGLIGENCE?

Under Florida law, only surviving spouses and children under 25 can bring a claim for a wrongful death caused by medical malpractice.

The Florida legislature enacted the law in 1990 and in 2000 the Florida Supreme Court held it was constitutional. The Court found the restriction … ”bears a rational relationship to the legitimate state interests of limiting increases in medical insurance costs.”  Justice Barbara Pariente wrote a strong dissent saying the restriction was unjustified. Justice Pariente asked the legislature to reconsider the law and give adult children who lose a parent from medical neglect the same right to bring a case as those who lose loved ones in other ways, such as being killed by a drunk driver.

The legislature did not reconsider the law and it is still in effect today with no sign it will be changed.

One example of the harsh effect of this law is a situation where a widowed 74 year mother of 3 independent adult children ages 42, 52 and 54 dies when a nurse administers the wrong medication.  Since the children are not under 25 they have no claim for the loss of their mother.

One possible but extremely difficult way to get around this restriction is if it can be proven the healthcare provider’s conduct was so outrageous that it goes beyond all bounds of decency. This is an almost impossible burden to meet. In reality most cases where medical neglect kills someone who is survived only by adult children, the cases are not pursued against the health provider and the healthcare provider is not held accountable through a civil action.

Firm Highlights

The Orange County Bar Association recognized our firm at the April 26th luncheon meeting with the “100 Club Award” for our attorneys’ 100% participation as members of the Orange County Bar.

If you have been injured, please contact our Florida personal injury attorneys now.