Editing Demurrer (section)

===Civil cases===
A demurrer is commonly filed by a defendant in response to a complaint filed by the [[plaintiff]]. A demurrer to a complaint can terminate a lawsuit. Although a plaintiff may demur to a defendant's answer to a complaint or the defendant's [[affirmative defense]]s, a demurrer to an answer is less common because it may be a poor [[Strategy|strategic move]]. A demurrer to an answer may simplify a lawsuit, but it usually will not end the lawsuit; it is normally used only when the plaintiff intends to move for [[summary judgment]] in their favor at the earliest opportunity and needs to preemptively attack some of the defendant's affirmative defenses.

Technically, a demurrer is not a ''[[Motion (legal)|motion]];'' a party does not file a ''motion for demurrer'' nor ''move the court to demur.'' Rather, a demurrer is a particular type of pleading and demurring is the act by which a party formally requests the court to dismiss a [[cause of action]] (claim) or the entire complaint.

In lay terms, a judge who sustains a demurrer is saying that the law does not recognize a legal claim for the facts stated by the complaining party. If the judge [[Objection (United States law)|overrule]]s a demurrer, the court is allowing the claim or case to proceed.

In legal terms, the demurring party asserts that the complaint or [[counterclaim]] does not amount to a legally valid claim, even if the factual allegations contained in the complaint or counterclaim are accepted as true.

Usually, a demurrer attacks a complaint as missing one or more required elements of a claim. Those elements are usually attacked by showing that the plaintiff failed to plead an essential element ''per se'' or facts that adequately support it (e.g., facts giving rise to an actionable duty running from the defendant to the plaintiff). Another method is to attack the entire cause of action itself as abolished or prohibited as against public policy (e.g., [[wrongful life]] is against public policy in most jurisdictions).

Demurrers are decided by a judge rather than a [[jury]]. The judge either grants the demurrer by sustaining it, or denies it by overruling the demurrer. If the demurrer is overruled, the defendant is ordered to file an answer within a certain period of time or else risk a [[default judgment]]. Once the answer is filed, then the case is said to be "at issue" (because there are now a complaint and answer on file opposing each other with the parties' respective provisions), and the case proceeds to the [[Discovery (law)|discovery]] stage.

In the alternative, a judge may sustain a demurrer [[Prejudice (legal procedure)|with prejudice]] or without prejudice.  With prejudice means the plaintiff cannot file another complaint attempting to fix insufficiencies of the previous complaint. If the demurrer is granted without prejudice and/or with leave to amend, then the plaintiff may correct errors filing a corrected and/or amended complaint. Demurrers sustained with prejudice are reserved for when the judge determines a plaintiff cannot cure or fix the complaint by rewriting or amending it. Depending upon the severity of the defect in a complaint, a court may sustain with prejudice on the first demurrer (very rare) or allow the plaintiff as many as three or four attempts before sustaining a demurrer to a third or fourth amended complaint with prejudice.