Motion to Strike: How to Use These Motions to Get Your Case to the Jury or Remove the Defendant’s Defenses
Motions to Strike are Powerful Procedural Tools to Narrow the Disputed Issues in Lawsuits
Defendants in civil lawsuits and the insurance companies that provide liability coverage and legal counsel for them do not want the jury to decide your case. They know that anything can happen when the jury begins deliberations, including a large verdict for the plaintiff.
A motion to strike the plaintiff’s evidence is a crucial procedural tool for defendants. And insurance defenses often use it to prevent Virginia accident victims from receiving a jury verdict.
If successful, a motion to strike prevents the jury from deciding the case and awarding damages, reducing the probability of a nuclear verdict that bankrupts the defendant or results in a first-party bad faith claim against the insurer.
But you, as the plaintiff, can use this motion, too. Indeed, you can ask the trial court to strike witness testimony or specific defenses to your civil action.
This article explains the motion to strike and how you can use it to your advantage to bar defenses to your claims.
What is a Motion to Strike?
A party’s motion to strike attacks the sufficiency of their opponent’s evidence.
Generally, you move to strike the evidence for these reasons.
First, to delete the plaintiff’s causes of action or the defendant’s defenses to these legal claims.
For example, as the plaintiff in a car crash lawsuit, you can use this motion to bar the defendant from raising a contributory negligence defense. Similarly, as the injured employee in a workers compensation case, you can use this motion to prevent the employer, insurer, or claim administrator from alleging specific defenses, such as willful misconduct or violating a safety rule.
Second, to remove inadmissible testimony from the evidentiary record so that the deputy commissioner or jury cannot consider it when deciding the case.
What is the Legal Authority for Motions to Strike?
The legal authority for motions to strike is in the Code of Virginia, the Rules of the Supreme Court of Virginia, and judicial precedent (law made by judges in their written opinions).
Parties to litigation and the courts turn to the following laws, rules, and cases when bringing or ruling on a Motion to Strike:
- Rule 1:11 of the Virginia Supreme Court Rules, entitled Motion to Strike the Evidence
- Rule 3:20, entitled Motion for Summary Judgment
- Code Section 8.01-274, entitled Motion to Strike Defensive Pleading in Equity and at Law; Exceptions Abolished
- Code Section 8.01-282, entitled Motion to Strike Evidence
- Green v. Smith, 153 Va. 675 (Va. Supreme Court 1930), holding Virginia recognizes that a motion to strike out all the plaintiff’s evidence.
Making the Motion
Generally, you must submit any legal motion in writing and file it with the clerk’s office.
However, courts treat motions to strike differently, as trial procedure matters instead of evidence law.
Therefore, you can move to strike the evidence orally at your personal injury trial or workers compensation hearing.
Timing: When Can a Party Move to Strike the Evidence?
The motion’s purpose determines when you make it.
The defendant should make a motion to strike all the plaintiff’s evidence when the plaintiff concludes their case-in-chief (i.e., the plaintiff rests on their proof).
In the alternative, the defendant may make or renew a motion to strike when both parties finish presenting their evidence.
Similarly, the plaintiff may move to strike defenses after closing argument.
If you want to move to strike part of a witness’s testimony during the trial as irrelevant, inadmissible, or prejudicial, you must object immediately. Otherwise, you waive the objection if you delay and the witness answers the next question.
If you wait too long, the court will overrule the motion to strike.
Can the Trial Count Strike Fewer than All Claims or Defenses?
Yes.
A party can move to strike all their opponent’s evidence or defenses or choose to attack less than all.
And the judge can grant all, some, or none of the requests.
For example:
If you suffer injuries in a construction accident due to a crane turnover, you may bring multiple causes of action. These claims may include negligence, vicarious liability, strict liability, etc.
Suppose the defendant moves to strike all your evidence after you present your case-in-chief.
The court may strike the evidence related to strict liability but allow you to proceed with the other theories of recovery.
What Happens After the Trial Court Grants a Motion to Strike?
If sustained (granted), a motion to strike out all the plaintiff’s evidence results in a defense verdict at trial. Specifically, the court will discharge the jury and enter summary judgment for the defendant.
Similarly, the judge will enter partial summary judgment if they strike all the evidence for one of the multiple causes of action brought by the plaintiff.
When the trial court grants motions to strike a defensive pleading, it instructs the jury not to consider the defense during deliberations. If it strikes all defenses, the court must enter summary judgment or partial summary judgment for the plaintiff.
For motions to strike part of a witness’s testimony, the trial court tells the jury not to consider any struck testimony. Whether the jury listens to the judge and forgets the testimony is another story.
What Happens if the Trial Court Overrules a Motion to Strike?
The civil procedure rules permit the defendant to introduce evidence on its behalf if the trial court overrules a motion to strike out all of the plaintiff’s evidence.
In other words, the trial proceeds as if the defendant never made the motion.
However, to preserve all its right to attack the sufficiency of the evidence on appeal, the defendant must renew its motion to strike the evidence when it concludes its case. As the Virginia Supreme Court has explained:
Plaintiff’s case may be strengthened by defendant’s evidence. If thereafter a motion is made to strike the evidence or to set aside the verdict, the court must consider the entire record in reaching its conclusion.
In a different context, if the jury cannot reach a unanimous verdict (a “hung jury”), any party trying to strike the evidence may renew its motion after the judge discharges the jury. Granting full or partial summary judgment is then at the court’s discretion.
Further, the court may permit the defendant to amend its defenses once in response to a motion to strike the defensive pleading. However, the court may enter summary judgment if the defensive pleading fails to survive a motion to strike the second time.
What is the Standard for the Trial Court to Sustain a Motion to Strike All the Plaintiff’s Evidence?’
The Virginia Supreme Court favors submitting cases to the jury to avoid multiple trials if an appellate court reverses the trial court’s granting of the motion to strike.
Therefore, the defendant will find it challenging to succeed in a motion to strike to avoid the case going to the jury.
A motion to strike out all the evidence is “very far reaching” and trial courts should not entertain them unless it plainly appears it would have to set aside any jury verdict for the plaintiff as being without evidence to support it.
In considering the defendant’s motion, the trial court must resolve any reasonable doubt about the evidence in your favor. Indeed, the court must adopt all inferences from the evidence most favorable to the plaintiff.
Further, if the trial court strikes your evidence and dismisses your case, there is hope. Appellate courts will review the evidence and inferences that can be drawn from it in the light most favorable to the party whose evidence was struck at trial.
How Can I Make My Lawsuit Motion to Strike Proof?
The best way to avoid losing your case when the trial court grants a motion to strike is to read the jury instructions for the causes of action you rely on and ensure you have two sources of evidence for each element you must prove.
For example, this article explains the elements of a negligence action for personal injuries.
You must plead and present lay and expert witness testimony on each element to survive a motion to strike out all the evidence.
Attorneys Who Help Accident Victims Overcome Obstacles
You can try to learn the law and the rules of evidence while also recovering from a catastrophic injury.
Or, instead, you can hire one of the best Virginia personal injury lawyers to overcome procedural hurdles.
Call (804) 251-1620 or (757) 810-5614 to see if we will accept representation in your occupational injury or tort claim.
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