It may come as a shock to you but the lawyers who represent the people you have sued will do everything within their legal power and right to get your case thrown out, dismissed, reduced and minimized, all at your expense.

When your attorney calls you and tells you the attorneys who represent the people you have sued have asked the court to throw out your case, I guarantee you will be outraged. You will feel frustrated. You will want to scream. You will be confused. You may think “How dare someone who didn't go through what I went through, try to get my case dismissed on a legal technicality?”


Most often, this happens with the use of a motion for summary judgment. That is when an attorney asks the court to throw out your case. Sometimes that request is made shortly after the case starts. Other times it is made at the end of “discovery” which means that when all sides have exchanged all the necessary documents and everyone has questioned all the witnesses involved and your case is ready to be put on the trial calendar. During your trial, a motion for summary judgment is always made by the defense after we have rested our case. That means that after we have put on all of our testimony and evidence to prove our case, the defense automatically asks the court to dismiss your case for failing to prove a 'prima facie' case of negligence or medical malpractice. That's fancy legal language for saying that you haven't proven the elements of your case.

When the defense makes this request, what do you do?

The answer is that you rely on your attorney's expertise to guide you through the process of what happens during a motion for summary judgment. The more informed you are about the process, the less frustrated and helpless you will feel when the motion is heard before the court.

Here's what happens with a motion for summary judgment:

In order for the defense to ask the court to dismiss your case they have to provide legal reasons. In medical malpractice cases the attorney will always be required to present proof by a medical expert who supports the defense's claim that nothing was done wrong (also known as liability), or that the wrongdoing did not result in your injury (also known as causation). They must be detailed about the reasons why they believe their position is correct. The defense has thrown down the gauntlet and it is now your attorney's obligation to put the necessary proof together to show that you do have a valid claim.

At the very least, your attorney is obligated to show that there are competing experts and witnesses with equally valid theories supported by the testimony and evidence in the case. Likewise, your medical experts must be very specific as to why they believe you have a valid case and “lay bare their proof” to explain to the judge exactly why you have a meritorious case. If the expert does not provide a detailed explanation to support your claim, there is a possibility that the judge will agree with the defense and dismiss your case.

However, where your attorney offers a comprehensive and detailed statement from your medical experts, the court can determine that he or she cannot make a decision, and instead will allow the case to proceed to trial in order for a jury to make the ultimate decision.

When one lawyer makes a request for summary judgment, it is as if they are having a mini-trial on paper. They must present whatever proof they feel is necessary to get your case thrown out. Your attorney must also include all necessary case law to support your claim in order to prevent your case from being dismissed. In the “old days” the attorneys would argue these requests in open court in front of a packed courtroom full of other lawyers waiting to argue their motions. As you know, lawyers like to talk. Many judges realized that having oral argument takes up and inordinate amount of time and therefore have curtailed oral argument in court. Instead, the judge's often rely upon the information contained within the motion papers and the case law that to support or oppose the request.

Typically, there are three possible outcomes:

1. The request to dismiss your case is granted.
2. The request to dismiss your case is denied.
3. The request to dismiss your case is premature and the court tells the lawyer that they have the ability to make this request at a later time.

If your case is dismissed, you must have a heart-to-heart discussion with your attorney about whether appealing that decision is feasible.

This is a basic overview of what happens when one attorney asks the court to dismiss your case. If you have further questions about how this process works, I urge you to pick up the phone and call me at 516-487-8207.