NCCC 21 Ch 4 - Defensive Pleadings in Civil Trials

Motion to strike

A motion asking the court to order the other party to remove from a pleading any insufficient defense or any redundant, immaterial, impertinent, or scandalous matter.

Motion for recusal

A request that a judge disqualify himself or herself from a case because of bias or prejudice.

Confession and avoidance

A defense that admits the plaintiff's allegations, but introduces another factor that avoids liability. Also called affirmative defense.

Dismissal with prejudice

A dismissal in which the plaintiff is barred from bringing another action on the same claim.

Dismissal

An order disposing of an action without a trial of the issues.

Waiver

voluntary relinquishment of a known privilege or right.

Dismissal without prejudice

A dismissal in which the plaintiff is allowed to correct the error and bring another action on the same claim.

Adjudicating

Determining finally by a court.

Recuse

Disqualify.

Fraud

A misrepresentation of a material, existing fact, knowingly made, that causes someone reasonably relying on it to suffer damages. Also called deceit.

Reply

The plaintiff's answer to the defendant's counterclaim.

Motion to dismiss

A motion made by the defendant asking the court to dismiss the case.

Misnomer

Mistake in name.

Negligence

The failure to use that amount of care and skill that a reasonably prudent person would have used under the same circumstances and conditions.

Party to a suit

A person or organization participating or having a direct interest in a legal proceeding.

Deposition

The transcribed testimony of a witness, given under oath and in anticipation of an eventual trial, but not in open court.

Motion for judgment on the pleadings

A motion by either party for a judgment in that party’s favor based solely on information contained in the pleadings.

Summary judgment

An immediate decision by the court, without going to trial, based on the papers filed by the parties.

Avoid

To annul, cancel, or make void. To get out of a void able contract; repudiate. Also called disaffirm.

Motion for a more definite statement

A motion by a party, when a pleading is vague, asking the court to order the other party to make a more definite statement.

Motion for summary judgment

A motion that may be made when all of the papers filed in a case show that there is no genuine issue of fact and that the party making the motion will win the case as a matter of law.

Nonsuit

The termination of an action that did not adjudicate issues on the merits.

Affirmative defense

A defense in civil and criminal litigation that admits the plaintiff's (or prosecutor's) allegations, but introduces another factor that avoids liability. Also called confession and avoidance. Defendants bear the burden of establishing affirmative defenses, such as contributory negligence (civil) or self-defense (criminal).

Breach of contract

The failure of a party to a contract to carry out the terms of the agreement.