Here are the five most important motion practice considerations.
1. Make Sure Your Efforts Are Justified. Sometimes making or opposing a motion, even if it will be easily won or opposed, does not materially advance a party’s position. Whenever a motion is brought or opposed the client’s resources are utilized and sometimes in the heat of the moment this fact gets lost. Always evaluate whether bringing or opposing a motion really materially advances your goal of resolving the litigation in a way that makes sense for your client.
2. Make Sure You Are Not Unnecessarily Tipping Your Hand. Many types of motions require the moving or opposing party to lay out its evidence and arguments. Be sure to evaluate whether it is a good time to do so.
3. Make Sure You Are Not Alienating the Judge. Making or opposing a motion will bring the parties before the court. Make sure that your motion will not make your judge wonder whether you can be trusted, or worse, whether Rule 11 sanctions would be appropriate.
4. Evaluate The Effect of Your Motion on Settlement. More than 99% of all litigation actions settle, so this is likely to be the outcome in any given case. Make sure that the motion you are bringing or opposing does not compromise your settlement position. In some cases a motion, such as a motion for summary judgment, may help motivate the opposition to come to the table.
5. Make Sure You Are Likely to Win. Not only will bringing a losing motion likely alienate your judge, but it is terrible for lawyer/client relations. No client likes to pay fees for an unsuccessful motion.
For more information regarding motion practice, see the SmartRules Guide for Motions in the jurisdiction where your action is pending.