Selfish Post

Based on the pleadings alone, a defendant can move to dismiss a plaintiff’s claim based on the plaintiff’s failure to state a claim upon which relief can be granted. This motion is based on FRCP 12b6. The essence of this motion is that the plaintiff has not stated a claim that is actionable by law; or there is no legal recourse for the defendant’s actions.

This is different from a motion for summary judgment, from FRCP 56. A motion for summary judgment still happens upon the pleadings, before the introduction of evidence. A motion for summary judgment says that there is no genuine issue of triable fact: that if all the facts are to be construed in favor of the nonmoving party, the nonmoving party cannot prevail, and therefore, judgment should be given for the moving party as a matter of law. There are two types of summary judgment motion, offensive and defensive. An offensive SJ motion is when a plaintiff moves that a defendant cannot win the lawsuit, even if all facts are construed in the light most favorable to the defendant. A defensive summary judgment motion is when the defendant says that the plaintiff cannot win, even when all facts are construed favorably for the plaintiff. It is important to note that when a party moves for SJ, the nonmoving party then bears the burden of showing that there is a genuine issue to be tried. If the nonmoving party cannot demonstrate the existence of a triable issue, then the motion for SJ should be granted, and the matter should be dismissed.

The motion for SJ is different from the motion for failure to state a claim upon which relief can be granted. While the 12b6 motion states that the plaintiff has failed to state a claim for which there is a remedy at law, the movant in a SJ states that there is an actionable claim at law, but the facts particular to this case show that the movant cannot lose.

Finally, after the pleading stage, either party can bring a motion for a directed verdict, or judgment as a matter of law. A party properly moves for a directed verdict at the close of the evidence presented by the adversary. This motion says that given the case in chief of the adversary party, no reasonable finder of fact could find for the nonmoving party, and therefore as a matter of law, judgment is proper for the moving party. If this motion is denied, the movant can renew the motion at the close of all the evidence presented in the entire matter, under the name Renewed Motion for Directed Verdict.

The preceding has been a self serving exercise; I am trying to get these concepts together in my own head. If you read this and you are not studying for a bar exam, then you are a true friend, because you could not have given a care about any of this. Thank you.

And now...

Mr. Sandman and Super Macho Man have been duly vanquished, and Mike Tyson awaits. In other words, finals over, law school done, and the Missouri Bar Examination stares me in the face, as it will for the next 42 days. Props if you understood the opening sentence. Sure, I am nervous. Scared, even. But, the meeting is inevitable, and if I am properly prepared, I should be fine. Not every barrister is a genius; I would like to believe that even as a novice, I should not be the dimmest light ever to be admitted to the bar. This gives me hope.

My preparations are more of a “scared straight” type variety. I mean, scared into legitimately preparing myself for the test. Save for catastrophe or personal tragedy, failing the examination would surely be the worst thing that could happen to me at this point in my life. How does one tell the village that he has failed? Especially when it seems like the entire village is apprised of his situation, and awaits big things from such individual? Can you imagine? “Uh, well, you see, uh…” Terrible. Not wanting to have to experience this scenario is enough motivation to keep me studying.

Still, this is a nerve bending experience. But, as a very confident friend of mine recently said, “I never considered failure as an option.” In fact, ain’t no need of getting nervous now, cause it ain’t but one way into this thing. I don’t feel no ways tired. Come too far from where we started from. It must be done. After all, Mike Tyson clearly is not the baddest man on the planet anymore. Just call me Buster Douglas. Or Evander Holyfield. Or Lennox Lewis. Or Danny Williams. Or Kevin McBride. Nah, you can keep McBride.