PRETRIAL JUDGMENT MOTIONS

This advisory provides an in-depth explanation of pretrial motions that we urge all of the attorneys in the WWI network to utilize. The pretrial judgment motions, when successful, eliminate the necessity of a trial. It has literally been years since any WWI client has had to testify at a trial. We want to keep it that way.

MOTION FOR DEFAULT JUDGMENT – As a lawsuit progresses, a debtor is given a “return date,” a time at which an appearance is required if the matter is contested. In lieu of same, written documentation outlining a dispute must be filed and served within 45 days of service of the creditor’s Summons and Complaint. Failure to appear or to substantiate a debtor’s position in writing is deemed a “Default.” Rather than waiting indefinitely for an answer, as soon as the statutory period has elapsed, we instruct your attorney to file an affidavit attesting that no answer has been received. Thus, the court renders a Default Judgment, which typically becomes a Final Judgment in 30 days. Then the court must register the judgment.

MOTION FOR JUDGMENT ON THE PLEADINGS – A debtor may file an answer to the creditor’s original lawsuit, but typically, it might not be structured in a manner that would properly deny allegations made in the Complaint. Insufficient answers would be, “The insurance company is supposed to pay.” Or, “My divorce decree indicated that my ex was responsible.” Other answers may fail to address the issues stated in the Complaint. The bottom line is that an insufficient answer made by the debtor results in our instructing your attorney to file a “Motion for Judgment on the Pleadings.” This motion basically requests the court to enter a judgment because of the insufficient response made by the defendant.

MOTION FOR SUMMARY JUDGMENT – Even when a debtor appears in court, files an answer and denies owing the balance, this may still not be enough in the court’s eyes to warrant a formal trial. A trial is necessary only when there are “disputed issues of material fact.” In cases where both parties agree with all of the relevant facts, a disagreement might be what the result should be when the law is applied to those facts. A Motion for Summary Judgment is an affidavit whereby the agreed upon facts substantiate the creditor’s position. If necessary, this motion is supplemented with a “Brief,” which usually contains case law explaining how the law should be applied. The court may schedule a hearing of oral arguments. If the debtor’s answer is of a general denial nature, citing a lack of knowledge to admit to easily provable facts, then we would instruct the attorney to utilize the Summary Judgment Motion, unless the debtor produces “compelling evidence.” In this phase, if the defendant challenges the material facts, and substantiates same, then the debtor would be granted his day in court and could also make a special request for a “jury trial.” A decision rendered by a judge is always preferable to one made by a jury of peers, simply because a judge is deemed an expert in the matters of Civil Law and the Uniform Commercial Code.

Judgments obtained by pretrial motions are part of the reason why the clients of Williams and Williams, Inc. never have to appear at trials. If you have any questions on this subject matter, or any other, please let us know.