Legal Definitions - Speaking demurrer

A speaking demurrer refers to a specific type of legal challenge (a "demurrer") that improperly introduces new facts or evidence not originally presented in the legal document it is responding to. In court, a demurrer is a motion filed by one party arguing that, even if all the factual claims made by the opposing party are true, those claims still do not establish a valid legal case. The court's role when considering a demurrer is to assume the truth of the facts as stated in the initial pleading and determine if they legally support a claim.

A "speaking demurrer" violates this fundamental rule by attempting to bring in information, evidence, or arguments that go beyond what was originally written in the complaint or petition. Because it introduces outside information that the court is not supposed to consider at this stage, a court will typically reject or "overrule" a speaking demurrer, as it deviates from the proper scope of such a legal challenge.

Here are a few examples to illustrate this concept:

• Contract Dispute: Imagine a company (Plaintiff) sues a supplier (Defendant) for breach of contract, alleging the supplier failed to deliver a specific quantity of goods as agreed. The Defendant files a demurrer, but in their motion, they include a statement like, "Furthermore, the Plaintiff never actually made the required upfront payment, which invalidates the entire contract."

  This would be a speaking demurrer because the Defendant is introducing a new factual claim (lack of upfront payment) that was not part of the Plaintiff's original complaint, which only alleged non-delivery. A proper demurrer would assume the Plaintiff's claim of non-delivery is true and argue that, even so, it doesn't constitute a legal breach for some other reason inherent in the contract itself, not by introducing new facts.

• Personal Injury Claim: A pedestrian (Plaintiff) sues a driver (Defendant) for negligence after being hit by a car, alleging the driver was speeding. The Defendant files a demurrer, but attaches an affidavit from a witness claiming, "The pedestrian was actually distracted by their phone and walked into traffic against the light."

  This constitutes a speaking demurrer because the Defendant is attempting to introduce new evidence (the witness affidavit) and a new factual allegation (the pedestrian's distraction) that was not part of the Plaintiff's initial complaint. When evaluating the demurrer, the court should only consider whether the allegation of "driver speeding" (as stated by the Plaintiff) legally supports a claim of negligence, assuming that fact to be true, without considering outside information that contradicts or adds to it.

• Property Boundary Dispute: A homeowner (Plaintiff) sues their neighbor (Defendant) for trespassing, alleging the neighbor built a fence several feet onto the Plaintiff's property. The Defendant files a demurrer, but includes a copy of a new survey report they commissioned, which purportedly shows the fence is entirely on the Defendant's land.

  This is a speaking demurrer because the Defendant is introducing new evidence (the survey report) that directly contradicts the Plaintiff's core factual allegation. A demurrer requires the court to assume the Plaintiff's claim (fence on their property) is true and then determine if, under that assumption, a legal claim for trespassing exists. Introducing a survey to disprove the Plaintiff's factual assertion goes beyond the permissible scope of a demurrer.