Corporate Governance and Finance Law by Roy Girasa (auth.)

By Roy Girasa (auth.)

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The court ordinarily permits the losing party to remedy the defects enunciated above. 21 The court will grant the motion only if it is clear that the allegations stated in the plaintiff ’s complaint cannot be established. 23 The burden is upon the moving party to show to the court that the claimant’s case is so utterly lacking in merit as to prevent him or her to offer evidence at a trial to support the claims made against the defendant. The motion to dismiss is rarely allowed and is ordinarily disfavored by a court.

For example, in a typical state automobile accident case, the complaint will begin with a recitation that the plaintiff (person suing) and/or the defendant (person being sued) are residents of a particular city, county, state where the court has jurisdiction. It then recites that when, where, and how the accident took place followed by a statement that the accident was caused by the defendant, specifying the type of negligence committed. It continues with a statement that the plaintiff was injured, which is then coupled with a demand for damages.

12 Though located at the lowest level of the judicial hierarchical system, in practical terms, it is the most important court for litigants. It is where evidence is presented before a presiding judge who determines what law is applicable to the facts of the case and the judge or the jury, if there is a jury, applies the law to the facts and outcome of the case. ). After both counsels have made their closing arguments to the jury, the judge then instructs the jury the applicable law to consider and to determine whether the accused did in fact commit the elements of the crime.

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