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In common law civil procedure, a demurrer is a pleading by the defendant that contests the legal sufficiency of the complaint without admitting or denying the allegations therein. Demurrers are usually filed at the beginning of a case. It is filed before the answer and can be characterized as the defendant’s way of saying “so what?” after reading a plaintiff's complaint. A demurrer existed in criminal law procedure, but today is largely obsolete or abolished. The complaint implicitly or explicitly asserts or presumes the court has jurisdiction to decide the issue and grant the relief sought. The demurrer challenges the prosecution to prove that jurisdiction, putting the burden of proof on him. Historically, demurrer was considered a common law due process right, to be heard and decided before the defendant was required to plead "not guilty", or make any other pleading in response, without having to admit or deny any of the facts alleged. A demurrer is not a challenge to the ultimate merits of a case or claim. When ruling on a demurrer, a judge is required by law to assume as true facts alleged in the complaint. Subject to very few exceptions, the judge cannot rule on a demurrer based on the judge's perception of a plaintiff's credibility. A demurrer is a paper most commonly filed by a defendant in response to a complaint filed by the plaintiff (a plaintiff may demur to a defendant’s answer to a complaint or the defendant's affirmative defenses, but this is uncommon). Sidenote Technically a "demurrer" is NOT a motion. One does not file a motion for demurrer nor move to demur. Despite this, most lawyers erroneously refer to a demurrer as a motion. A demurrer is typically filed at the beginning of a case, before anything else happens in a case. This is because the challenge is attacking the complaint, the paper first filed in a case to get the lawsuit started.
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