Phase Four: The “Pleading Phase”
The next phase in a usual lawsuit is what attorneys call the “pleading phase.” This phase involves the defendant’s response to the Complaint. There are several possible responses that a defendant can make, and which response or responses will dictate how long it will take to get out of the “pleading phase.”
Of the several kinds of responses a defendant can make to a Complaint, the most common are the Answer, the Demurrer, and the Motion to Strike.
An Answer is simply the defendant’s official response to the Complaint. It usually denies the allegations of the Complaint and then sets forth several “affirmative defenses” which are legal and factual arguments that the defendant may wish to use to defeat the plaintiff’s case. Unless the defendant is successful in getting out of the case at the pleading phase, all defendants must eventually file an Answer. The Complaint and the Answer then define the scope of the legal and factual issues involved in the lawsuit. The only way to add or remove from that scope after the Complaint and Answer have been filed is to amend those documents. Once the Answer has been filed, the case can proceed to trial. A case cannot proceed to trial while it is still in the “pleading phase.”
Often, defendants will not immediately file an Answer, but instead will file what is called a “Demurrer.” A Demurrer asks the court to decide whether some or all of the plaintiff’s Complaint has been pleaded with legal sufficiency, i.e., has been drafted correctly. In a Demurrer, the defendant must assume all the facts stated in the Complaint are true, and in light of that assumption, the defendant argues that the Complaint fails to state a claim. In other words, “assuming what you say is true, that is not enough to state a legal claim against me.” In concept, Demurrers are used to clarify pleadings and weed out clearly inapplicable or unsupportable claims. In reality, they are often used to create delay.
A motion to strike is similar to a demurrer, but it relates to only specific parts of a complaint. In a motion to strike a defendant might seek to strike all requests for punitive damages, or for attorney fees, if there is a legal argument that the plaintiff is not entitled to those forms of relief. The result of a successful motion to strike is usually an order from the court striking certain words or paragraphs from a Complaint, and the lawsuit proceeds minus that content.
Unless the Demurrer or Motion to Strike completely removes the defendant from the case, that defendant must ultimately file an Answer, and the pleading phase is concluded.
