Speaking demurrer

speaking demurrer

n. an attempt to introduce evidence during a hearing on a demurrer. A demurrer is a legal opposition to a complaint in a lawsuit (or to an answer), which says, in effect, that even if the factual claims (allegations) are true, there are legal flaws or failures in the lawsuit. Therefore, since the factual allegations are admitted for the sake of argument, introducing evidence is improper, and an attorney making a "speaking demurrer" will be halted, often in mid-argument. Example: Attorney Perry Pickwick files a demurrer to a complaint for damages due to medical malpractice, in which he argues that the suit was filed too late (after the time allowed by the statute of limitations) since the complaint itself stated the malpractice took place more than three years before the filing and the limitation by law is two years. However, the complaint also stated that the plaintiff Elsa Edwards did not discover the resulting problems until much later, and therefore, she had extra time. Faced with this counter-argument, Pickwick attempts a "speaking demurrer" by arguing, "we have a letter in which plaintiff Edwards complained about pain right after the operation." (See: demurrer)

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SPEAKING DEMURRER, equity pleading. One which contains an argument in the body of it; as, for instance, when a demurrer says, "in or about the year 1770," which is upwards of twenty years before the bill filed. 2 Ves. jr. 83; S. C. 4 Bro. C. C. 254.

A Law Dictionary, Adapted to the Constitution and Laws of the United States. By John Bouvier. Published 1856.