March 5, 2021

The Practical Uses of a Demurrer (Besides Getting a Case Dismissed)

BY: Adam B. Pratt

Few things excite civil defense lawyers more than a demurrable complaint. As a newly minted lawyer, every time I would read a complaint, I would constantly think about what parts might be demurrable and how I might get the case dismissed outright. The holy grail of dispositive motions is the dismissal with prejudice on demurrer. But in modern practice it is rare for a demurrer to result in the final dismissal of a case—and even when it does, the Supreme Court is usually quick to send it back on appeal. As a tool to obtain the dismissal of a case, it is unreliable at best. In fact, given the Supreme Court’s recent jurisprudence, demurrers—like summary judgment—are becoming disfavored relics of old, codified but no longer viable to dismiss meritless claims without a full-blown trial. So, if demurrers are no longer reliable means to obtain a dismissal, are they still useful? Yes! Demurrers serve a couple purposes beyond simply trying to get a case dismissed.

  1. Gain Insight in the Court’s Perspective on the Case

    Unlike in federal court, dispositive motions in Virginia state courts almost always require a hearing. Especially in districts where a single judge oversees all parts of a case, a demurrer is a valuable opportunity to get an early take on how favorable—or unfavorable—the court may be to the plaintiff’s claims. Sometimes the court’s ruling to sustain a demurrer can backfire on a defendant and the court can tell the plaintiff exactly what he needs to know to make his case even stronger. See, e.g., Moore v. Ladd Furniture, Inc., 22 Va. Cir. 249, 254 (Richmond Cnty. 1990) (sustaining a demurrer with leave to amend, suggesting that alleging an “implied warranty” against the defendant would overcome demurrer). Regardless, however, this knowledge benefits both sides of a case—knowing how a court is likely to rule at trial can aid the parties in reaching a settlement.

  2. Gain Information about a Plaintiff’s Case Without Discovery

    A defendant can use a demurrer to force a plaintiff to disclose additional information about his case without burning through limited interrogatories. If a demurrer is sustained with leave to amend, the plaintiff may be required to allege additional facts to maintain his claim, which can provide a defendant with valuable additional information which may either reduce the amount of discovery necessary or allow the defendant to target his discovery requests accordingly. It should be noted that, while a motion for a bill of particulars is available to a defendant under Rule 3:7 of the Rules of the Supreme Court of Virginia, almost every situation in which a bill of particulars is available a demurrer is also available, and a demurrer has the added benefit of obtaining a ruling from the court on the veracity of the plaintiff’s claims.

There is more value to a demurrer than simply trying to get a case dismissed. While that is certainly its main stated purpose, demurrers in modern practice can be a valuable tool for defendants to develop a case for their clients—even if they ultimately fail to obtain a dismissal. Of course, an improvident demurrer can backfire—a defendant may inadvertently reveal the weaknesses in a plaintiff’s case early enough for the plaintiff to correct them well before trial. However, when used effectively, demurrers are more than simply glorified motions to dismiss. Before you file one, think about what effect a demurrer will have if the case is not dismissed—will you learn something valuable about the case? Is it worth it to get the court’s pulse on the merits so early in the process? And how can you use that information to your client’s benefit? If there is value to be had, file away! Just don’t expect to walk out of the courtroom with the plaintiff’s case dismissed.

About the Author

Adam B. Pratt is an associate at Kaufman & Canoles, in the firm’s Williamsburg office. He serves as the Virginia State Bar Young Lawyers Conference 6th District Representative.