Motion to Dismiss or Motion to Strike Compared in Three Jurisdictions: What We Can Learn From Cousin Vinny
Cousin Vinny (yes, the character in the movie comedy, My Cousin Vinny) inspired the first venture in scholarly writing by our firm’s two partners and we are pleased to have received permission to re-print it as a post on this blog.
The article, “Comparing The Rules In Three Jurisdictions: Can Extrinsic Evidence Be Considered On a Motion To Dismiss or Strike” was originally published in Volume 35, No.1 of the Westchester Bar Journal at pages 19-24, and is hereby reprinted with the approval of the Westchester Bar Association.
To access the article,click on the title above or click here.
It is a serious article; the comedic reference is meant as a dash of sweetener to keep it from being excessively dry.
For our non-lawyer readers and for our colleagues not inclined to parse the scholarly exposition, we offer the following as a summary, with the disclaimer that the summary simplifies complex issues.
The motion to dismiss or the motion to strike is an important procedure for cutting short litigation at the early stages, before the clients on either side have gone to a lot of expense. Comparing similar rules in the three jurisdictions (federal, Connecticut and New York), we note the following as to whether a certain type of evidence is to be considered:
- ·In one jurisdiction, the judge has to make a close call and the case may turn on that call;
- In a second, there is no decision to make because the evidence is never considered;
- And, in the third, there is no decision to make because the evidence is always considered.
There is an obvious lesson: whether one is on the plaintiff or defendant side, one needs to fully understand how the facts of the case will interact with the pleading and motion rules of the jurisdiction which will decide the case.
For details and to find out what Cousin Vinny had to do with it, you have to read the article for which we now offer one more link.
