The lawyers are interested in the point of law and believe so strongly in their case that if an adverse ruling comes they are shocked and surprised.  The judge knows that although he grant the motion to dismiss, he will probably allow an amendment.  He is not greatly concerned unless he foresees a possibility of settling the dispute definitely and going on to the next case.  He is anxious to try the present action and get down to the meat of the matter but really if they are going to insist on all technicalities he feels a little impatient.

He knows that even if the defendant is right and the pleadings are defective because the stenographer forgot to insert a date, it can still be put in.  Recent legislation has found it necessary to say that the courts should allow amendments of pleadings where “Substantial Justice” will be accomplished thereby.  It is a commentary on the system of the courts that the people through its legislatures should find it necessary to pass a law that judges should amend paper pleadings in furtherance of justice.  If justice and right depend upon pieces of paper to such an extent, the dry formalism of the courts is a matter of regret.

The next important motion is when the plaintiff has put in his evidence and has rested.  “The plaintiff rests,” the lawyer says.

The judge and the jury say to themselves, “Well it is half over.”

The defendant’s lawyer rises and says, “I move to dismiss on the ground that the plaintiff has not made out a cause of action.  He has not shown that the cow was owned by the defendant, or he has not shown that the driver of the plaintiff was free from contributory negligence, or he has not made out any kind of case at all.”

This is an anxious moment for the young attorney.  Did he forget something?  What was there that he did not remember?  Will the case be dismissed because he forgot to tie a shoe lace or put in a pin?  If he is more experienced in court work he will not be so worried.  The law is that the plaintiff must be given every chance at this stage of the proceeding.  Only when both sides are through does the law begin to weigh the evidence.  At the close of the plaintiff’s case everything is in his favor.  Any particle of testimony is sufficient on a particular point.  The theory of the law is that both sides must be heard.  If the motion to dismiss is made on the ground that something has been left out, the court will usually give an opportunity to prove to whom the red cow belonged.  This motion like many other relics of a by-gone age, is a matter of custom and tradition.  It is usually made on the theory that the judge may think there is no case and that the plaintiff can not make out a case.  If he so decides, the case is finished, the jury is discharged, and the client has his feelings hurt by being thrown out of court.