Key Takeaways
- A demurrer is a procedural tool used to challenge the legal sufficiency of another party’s pleadings, without disputing the facts alleged.
- There are two primary types of demurrers: general (attacking the overall legal sufficiency) and specific (targeting particular defects such as ambiguity or lack of clarity).
- The outcome of a demurrer can shape the course of a case, potentially leading to dismissal, amendment of pleadings, or continued litigation, depending on the court’s ruling.
Understanding Demurrers: The Basics
A demurrer is a legal pleading that challenges the sufficiency or adequacy of an opponent’s pleading, such as a complaint or indictment, without disputing the factual allegations. The term "demur" literally means "to object," and in legal parlance, a demurrer is a formal objection to the legal validity of the claims made, rather than to the facts themselves. According to the Legal Information Institute, a demurrer is a written response that contests whether the facts alleged, even if true, constitute a valid cause of action.
The concept is rooted in the idea that not every wrong or harm described in a pleading necessarily gives rise to a legal claim. A demurrer asks the court to assume, for the sake of argument, that every fact alleged by the other party is true, and then to determine whether, as a matter of law, those facts warrant relief. If the court finds that the facts do not support a legal claim, it may dismiss the case or require the party to amend their pleading.
Types of Demurrers
General Demurrer
A general demurrer challenges the overall sufficiency of a pleading. It typically asserts that, even if all the facts presented are taken as true, they do not establish a legally recognized cause of action. For example, if a complaint alleges harm but does not connect that harm to any breach of duty recognized by law, a general demurrer may be filed to dismiss the case for failure to state a claim. This approach is explained in the Legal Dictionary at Law.com, which describes a general demurrer as a written response seeking dismissal based on the insufficiency of the facts alleged.
Specific (or Special) Demurrer
A specific (or special) demurrer targets particular defects in a pleading, such as ambiguity, vagueness, or lack of clarity. It does not question the overall legal theory, but rather points out flaws in the way the claims are presented. For example, a specific demurrer might argue that the complaint is so uncertain that the defendant cannot reasonably respond to it. Special demurrers are especially useful for addressing technical or procedural deficiencies that could impede a fair trial or proper notice.
Demurrers in Practice
Civil Cases
In civil litigation, demurrers are used as a first line of defense to challenge the legal adequacy of the plaintiff’s complaint. The defendant may file a demurrer instead of answering the complaint, asserting that, even if all facts are accepted as true, the complaint fails to state a claim upon which relief can be granted. This is similar to a motion to dismiss for failure to state a claim, as found in many jurisdictions.
For example, in California, demurrers are still a standard procedural device in civil cases. The court will review the complaint, assume all facts are true, and decide whether the law supports the plaintiff’s claim. If the demurrer is sustained, the court may dismiss the complaint or allow the plaintiff to amend it to cure the deficiencies.
Criminal Cases
Demurrers also play a role in criminal proceedings, where they are used to challenge the sufficiency of the charging document, such as an indictment or information. As explained by the Kraut Law Group, a demurrer in a criminal case is a way to object to the adequacy of the criminal pleading. The defendant may argue that, even if all the facts alleged are true, they do not constitute a crime under the law.
In criminal cases, demurrers are generally limited to defects that appear on the face of the indictment or information. A general demurrer might challenge the legal sufficiency of the charges, while a specific demurrer could focus on technical defects, such as lack of clarity or improper form.
Speaking Demurrer
A speaking demurrer is a specialized form that goes beyond the face of the pleading and introduces new facts or allegations. This type of demurrer is generally disfavored, as courts prefer to limit their review to the four corners of the pleading. The Legal Information Institute notes that a speaking demurrer alleges something in addition to what is contained in the pleading to which it is filed.
Demurrers vs. Motions to Dismiss
In many jurisdictions, the traditional demurrer has been replaced by the modern motion to dismiss. Both serve a similar function: they challenge the legal sufficiency of the opposing party’s pleading. The main difference is often one of terminology and procedural rules. In federal courts and many state courts, a motion to dismiss under Rule 12(b)(6) of the Federal Rules of Civil Procedure serves the same purpose as a demurrer. However, in states like California, the demurrer remains a distinct procedural device.
The Segura & Kiatt Criminal Defense blog explores the differences between a demurrer and a motion to dismiss, noting that while the terms may differ, the underlying goal is the same: to test the legal sufficiency of a pleading at an early stage of litigation.
Purpose and Strategic Use of Demurrers
The primary purpose of a demurrer is to address issues such as uncertainty, lack of notice, or the failure of a pleading to contain sufficient information about the alleged wrong or crime. By raising these issues early, the court can ensure that only legally viable claims proceed to discovery and trial, saving time and resources for both the parties and the judicial system.
Demurrers can also be used to challenge the venue or jurisdiction of the court, or to highlight procedural defects that might otherwise go unaddressed. For instance, if a complaint fails to allege facts showing that the court has jurisdiction, a demurrer can be an effective tool to bring this defect to the court’s attention.
Outcomes of a Demurrer
The court’s decision on a demurrer can have significant consequences for the litigation. If the demurrer is sustained, the court may dismiss the case entirely or grant the plaintiff leave to amend the complaint to address the deficiencies. If the demurrer is overruled, the case proceeds to the next stage, such as discovery or trial.
Courts often allow plaintiffs to amend their pleadings after a demurrer is sustained, particularly if the defects are technical or curable. However, if the complaint cannot be amended to state a valid claim, the case may be dismissed with prejudice, meaning it cannot be refiled.
Jurisdictional Differences
The use and terminology of demurrers vary by jurisdiction. In some states, demurrers are an established part of civil and criminal procedure; in others, motions to dismiss have largely replaced them. For example, California’s Code of Civil Procedure still provides for demurrers in civil cases, while federal courts and many other states use motions to dismiss.
It is important to consult the local rules and statutes governing pleadings in your jurisdiction to determine the appropriate procedural tool and the standards that apply.
Conclusion
A demurrer is a powerful procedural device that allows parties to challenge the legal sufficiency of pleadings at an early stage of litigation. By focusing on issues of law rather than fact, demurrers promote judicial efficiency and ensure that only claims with a sound legal basis proceed to trial. Whether used in civil or criminal cases, understanding the strategic use of demurrers—and their modern equivalents, such as motions to dismiss—is essential for effective advocacy.
For more in-depth legal research and resources, visit Counsel Stack.
Disclaimer: This guide provides a general overview of demurrers and is not a substitute for professional legal advice. Laws and procedures vary by jurisdiction, and there are many nuances and exceptions. Consult an attorney or official legal sources for advice specific to your situation.
