• March 11, 2015

Wily Coyote Burnt HelpSometimes it is strategically valid to bring a motion when one is not assured of winning the motion. First, there are almost literally never guaranteed wins in litigation, so if “certainty of winning” is a prerequisite for a motion (to dismiss, to compel, for summary judgment, and so on), you’ll never be able to bring a motion.

Second, unsuccessful motions can educate the Court as to particular facets of the case so there can be a benefit in bringing some motions even if one loses them. This might be seen as analogous to the psychological phenomenon of “priming,” defined as “an implicit memory effect in which exposure to one stimulus influences a response to another stimulus.” So, for example, you might want to bring the Court’s attention to your adversary’s unsavory character with a motion to amend to add a claim for punitive damages or you might choose to bring a motion for a temporary restraining order while recognizing that the standards for such motions are pretty high (in Minnesota, at least) so you’re likely to lose.

But aren’t there times when bringing a motion that is in the nature of a “hail mary pass” is risky and bad litigation strategy?

I would say so. Let’s put aside the fact that clients have to put down money for motions in a lot of cases (that is, non contingent-fee cases, of course). This is an obvious reason to avoid a motion that you assess at having a low chance of success.

But also, your “priming efforts” might back-fire terribly. Let’s say, for example, you bring your “priming” motion to amend to add a claim for punitive damages but the evidence that you point to not only fails to make your adversary look unsavory, it makes you and your client look like histrionic, disingenuous, and incompetent clowns?

Understanding that 20/20 hindsight creates a bias and sometimes a motion looks more hopeless when a judge has analyzed it than it might have looked to us before she analyzed it, the recent denial of a motion for summary judgment in Stark, et al., v. Nestlé by U.S. District Court Judge Susan R. Nelson (D. Minn.) sure seems to reflect a motion that would have been wiser NOT to bring.

Leif Spore and Brian Stark brought age discrimination claims against their employer, Nestlé.

Keep in mind that, Nestlé, in order to win on a summary judgment motion would have to show that Stark had NO evidence from which a jury could find age discrimination occurred. (Spore settled his claim before the Court decided Nestlé’s motion.)

  • The Court found, “Stark has presented direct evidence that unlawful discrimination was a motivating factor in his alleged constructive discharge from Nestlé.”
  • There was evidence that a Nestlé manager was “alarmed” by the “age and tenure” of some Nestlé employees.
  • There was evidence that the manager preferred to hire “young people straight out of college.”
  • There was evidence that Nestlé human resources personnel were present when the Nestlé manager said such things in front of older workers and Nestlé human resources personnel said nothing.
  • There was evidence of the Nestlé manager commenting generally about older workers’ injuries, inefficiency, and inability to change.
  • There was evidence of a Nestlé manager “performance managing out” older workers.

If Plaintiff thought he had a good case before Nestlé brought its motion, I wonder what he thinks of it now…


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