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Moving Tactically: Should You Make a Motion?

465153001Motions are tactical tools, and your decision to seek an order should be made in the context of your overall litigation plan. Always keep in mind that making a motion entails time, effort, and expense for the moving party. Is it worth it?

When deciding whether to make a motion, or which motion to make, engage in a “cost-benefit” analysis: Does the anticipated benefit (after being discounted for the possibility of losing the motion and the disadvantage of educating the adversary) outweigh the expense (in time and money) of making the motion? How does that differential compare with those produced by a similar analysis of alternatives to the motion?

When you’re doing this cost-benefit analysis, evaluate the following factors:

  • The significance of a successful motion to the ultimate outcome of the case
  • The likelihood of success
  • The danger of alerting the adversary to issues that may not have surfaced until later
  • The favorable and permitted time to make the motion (delay may create the risk that adversaries will oppose the motion on grounds of laches or that the judge who rules on the motion will see the delay as intended to gain an advantage or create an inequity)
  • The degree to which the motion will help or interfere with settlement possibilities
  • The cost of making the motion, in terms of money, effort, time, and continued amicability among counsel
  • Less costly measures that might achieve an acceptable result, e.g., the objective might be achieved by simply discussing the matter with, and obtaining the agreement of, opposing counsel—which might even be required. See Cal Rules of Ct 3.724 (parties must “meet and confer” to try to resolve specified issues before making motion)
  • The overall effect of the motion on the judge’s view of the case

There are many pros and cons to timing motions, depending on your case. In some situations an early motion may save the moving party effort and expense. But in other situations, it’s better to delay filing a motion until after investigation and discovery or after an adversary is committed to a position. And some motions can be postponed until it’s too late for the adverse party to correct the defect that the motion exposes.

For everything you need to know about making a noticed motion, including timing and document preparation, turn to CEB’s California Civil Procedure Before Trial, chap 12.

Other CEBblog™ posts you may find useful:

© The Regents of the University of California, 2016. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

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