Civil Litigation Legal Topics Litigation Strategy Pretrial Matters

Should You Use Tactical Dismissals?

84215043As plaintiff’s counsel, you always want to analyze how best to present your client’s case in the most efficient and persuasive way. Sometimes doing that means dismissing certain parties or causes of action. But such tactical dismissals aren’t without risk. Here’s a list of questions to ask yourself when deciding whether or not to dismiss.

  • Do the remaining defendants have sufficient assets to satisfy a judgment?
  • Will dismissal of a cause of action or party limit the introduction of evidence helpful to the plaintiff’s case or will dismissal limit the introduction of damaging evidence by the defendants?
  • Will dismissal of a party operate as a bar to recovery against other defendants (e.g., dismissal of a primary obligor in a suit against a guarantor)?
  • Will dismissal of an out-of-state defendant render that defendant unavailable as a witness at trial or affect the admissibility of the defendant’s deposition testimony (e.g., admissions made by a defendant who is no longer a party to the suit may not be admissible)?
  • Is the party to be dismissed indispensable?
  • Will dismissal of a defendant leave an empty chair for other defendants to blame?
  • Will a defendant waive costs in exchange for dismissal on the eve of trial?

The bottom line: Always do a comprehensive review of the tactical and legal considerations pertinent to any pretrial dismissal before moving to voluntarily dismiss parties or causes of action under CCP §581.

For everything you need to know about pretrial dismissals, turn to CEB’s California Civil Procedure Before Trial, chap 39. On selected pretrial motions, including tactical considerations, turn to CEB’s California Trial Practice: Civil Procedure During Trial, chap 6.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2015. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

5 replies on “Should You Use Tactical Dismissals?”

the best tactic is not to name defendants with questionable liability when you file the complaint.
if discovery shows that an unnamed party is liable you amend to name them as a doe. this is why we have doe defendants.

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