A motion to strike is a way for one party to let the court know she believes that all or part of a pleading or testimony of the opposing party is insufficient, immaterial, redundant, impertinent, or even scandalous. This motion means the party filing it wants the irrelevant or scandalous testimony or pleading to be stricken. The party filing the motion is requesting that the judge remove part or all of a pleading or testimony of the opposing party.
In a lawsuit, a plaintiff typically files a suit against a defendant. The defendant has a chance to respond to the allegations and even present her defenses, which will generally indicate why the defendant did what she is accused of doing, but they can also give the defendant a chance to bypass guilt. The judge and jury will read the complaint and the defendant’s response. Moving to strike is simply an attempt to wipe out part or all of a defendant’s defenses or a plaintiff’s complaint.
Although it can be made orally during the course of a courtroom trial, moving to strike is most often made in writing. If it is made orally during a courtroom trial, the judge will be asked to strike answers that were given by a witness. The answers are usually stricken if they violate rules of evidence or laws of what is allowable during a trial. Regardless of whether it is made orally or in writing, the party making the motion must explain exactly why a pleading is irrelevant, immaterial, or scandalously erroneous. Once a motion is granted or approved, the jury and all the parties involved in the case must ignore the portion of the pleading that has been stricken.
Although a motion to strike is often used in a courtroom setting, it can also be used during the course of legal proceedings outside the courtroom. For example, a plaintiff for a case can move to strike declarations made by witnesses on behalf of the defendant. If the court grants the motion, it would be as if the declarations were never made, while if the court does not grant the motion, then the declarations remain in place.
Anytime this motion is made, the opposing party is given the opportunity to respond. After a response is made, the original party moving to strike can file a reply. Eventually, the judge must ponder the issue and make a statement as to whether the motion has been granted or denied.
Many countries use the motion to strike during their legal processes. In the United States, all of the states allow a party to strike all or part of a pleading as stated in Rule 12 of the Federal Rules of Civil Procedure. In Canada and Australia, attorneys move to strike pleadings as well, although some countries, such as India, don't use the motion. Generally, there are set rules stating how many days a party has to strike part of a pleading, and in most cases, if the party moving to strike does not do so in the appropriate time frame, the opportunity is lost.