When Should You Use Motions To Quash and Strike?

Separately, the terms crash and burn don’t mean quite the same thing, but they’re close. The goal is to make something fail. Together, they mean to make something fail in spectacular fashion. Quash and strike? They’re not quite the same either, but they’re close.

In litigation, the goal of motions to quash and strike is to make something fail. Unlike crash and burn, they’re not spectacular together. Moving for one at a time will do. The challenge is to know when to move for which.

Why distinguish between the motion to quash and motion to strike?

The motion to quash and the motion to strike are so similar that people even in the legal profession exchange one for the other. Yet, the legal profession insists they are different. They are, but as a pro se litigant, you can get away with calling a motion to strike a motion to quash and vice versa. In fact, statutes allow you to address some issues with either a motion to quash or a motion to strike.

Yet, there are good reasons for knowing the difference between the two. First, the more you know about them the more likely you are to use them. Second, not distinguishing one motion from another might lead to willy nilly throwing in any motion at any time without regard to why that motion works. I’ve seen pro se litigants use a motion to quash against a motion for summary judgment, or a motion to strike in place of a motion to dismiss without following up with dismissal proceedings. Do something like that, and you lose not just your credibility.

The ability to quash or strike a pleading, motion, testimony, subpoena, etc, is so powerful that the two motions are well worth learning about. They are also worth distinguishing if you plan to use them. So let’s look closely at them.

Differences between the two motions

A motion to strike requests that a judge eliminate a document, parts of a pleading, or an entire cause of action because of an insufficiency. The motion can be oral or written. In order to dispose of an entire claim with a motion to strike, however, the judge must do more than simply grant the motion. She or he must follow up by entering a dismissal, summary judgment, or partial summary judgment.

Most times, the judge will simply strike (eliminate) a document or testimony from being used in a case. In a jury trial, if a judge strikes certain parts of a testimony, the jury is required to ignore all the parts that were stricken.

While the motion to strike asks the court to eliminate a document or parts of a document from a current filing, a motion to quash asks the court to make void, nullify or set aside a decision a court has already made. It’s like a before and after picture. The motion to Quash seeks to void a previous ruling, while the motion to strike seeks to eliminate a current filing or something from the current filing.

Also unlike the motion to strike, motions to quash are appropriate when a court has made a mistake or a court clerk’s office has issued a document, such as a subpoena, improperly. The people making a “mistake” that leads to a motion to strike are usually parties in the case.

Sample uses of motions to quash and strike

When can you use motions to quash and strike? You can use them in multiple situations. Consider them the right hook just before the knockout punch. The instances below are examples of situations where a motion to quash or strike might be appropriate.

• A complaint is filed in the wrong jurisdiction. (Motion to Quash)
• An attorney makes a last minute bevy of discovery requests, including a notice of an expert witness, 24 hours before a pre-trial conference. (Motion to Strike)
• An attorney submits an affidavit from a company vice president  who has no knowledge of company business practices during the relevant times in the complaint. (Motion to Strike)
• A foreclosure case is filed without the proper verification or preconditions. (Motion to Quash)
• A summons arrives without the Defendant’s name. (Motion to Quash)
• Wording in one count of an amended complaint is prejudicial. (Motion to Strike)
• A complaint is filed with falsehoods or is frivolous. (Motion to Strike)
• A subpoena for deposition did not allow reasonable notice. (Motion to Quash)
• At trial, a witness’ answers are in violation of the rules of evidence. (Motion to Strike)

There are numerous ways to put the stops on a court proceeding, including motions to dismiss, motions for summary judgment, objections, motions in limine, and motions to suppress. The motion to quash and the motion to strike though are two of the most useful yet underused tools by pro se litigants. Learn the when, how, and why of using these two motions and up your litigation game.

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