Some years ago, I worked for other lawyers and I learned a lot from many different lawyers. But I also was frustrated by other lawyers’ decision-making on strategic issues from time to time. One time, I proposed bringing a strategy and senior lawyers at the firm I was then with veto’d the motion that I had proposed bringing. “We are not confident that you will win that motion, so we don’t think you should bring it,” I was told.
That reasoning was flawed. Trial lawyers who shy away from bringing motions because of a concern the motion will fail may be missing the forest for the trees. Litigation is a bit like a battle. There are attacks, counter-attacks, feints and flanks. Don’t reject a maneuver because the specific tactic might not be the decisive tactic.
A recent case in the U.S. District Court (D. Minn.) provides an example.
If you have a less than 50/50 chance of making (or saving) $200,000 and the cost of the coin-flip (i.e., the motion) is $5,000, might you not want to run that risk? That should be obvious.
Second, if you bring a motion early on in a case, you might have the chance of signalling seriousness to the other side in a way that you cannot otherwise signal.
Third, you might have the chance of “priming” the decision-maker (that is, the judge) in favor of your view of the case even if you don’t win the motion.
Fourth, very often one can lose a motion but still come up with something of value.
Sr. U.S. District Court Judge Richard H. Kyle (D. Minn.) denied the recent motion for a preliminary injunction brought by Plaintiff Airgo against Defendant Berkness Swiss. Airgo lost the motion. But, the cour’ts order concluded, “this Order is without prejudice to AIRGO moving for a preliminary injunction following a limited, expedited discovery period (not to exceed 60 days) through which it can attempt to more fully justify its need for relief,” and Judge Kyle ordered the case to be referred to the magistrate judge for expedited discovery.
Whether Airgo’s preliminary skirmish is ultimately found to have shortened the case or materially advanced Airgo’s case remains to be seen. On the other hand, that fact that its lawyers undoubtedly appreciated that the motion was a stretch did not deter them from bringing the motion. And, I expect that Airgo and its counsel are satisfied with the short-term results, at least, of its “unsuccessful” motion.