Defense Lawyers: Don't Help Out Your Opponent When It's Not Necessary

In writing this companion piece to yesterday's post--"Plaintiffs' Lawyers: Don't Let Your Cases Stagnate"--I found myself thinking about the times when defense lawyers, far from letting their own cases stagnate, seem to do too much, usually by preparing detailed motions that educate their opponents and give them a roadmap for the planned defense of the case. While defense lawyers must be concerned about preserving issues for appeal, I wonder why many often take positions with a high probability of losing at both the trial and appellate levels when it's not absolutely necessary.

I know how many plaintiffs' lawyers view these sure-to-lose defense motions with their accompanying detailed memos in support--as gifts from the defense lawyer. Choose your battles wisely.

Comments

[Dave Stratton]

A good example, I suppose, would be filing a motion for summary judgment on an issue like contributory negligence, in the face of overwhelming appellate authority stating that contributory negligence is an issue for the jury in all but the rarest of cases.

Still, it all depends. Since 90% or more cases ultimately settle anyhow, some motions might be filed precisely to educate the other side as to legitimate problems in the plaintiff's case so that those problems are factored into settlement discussions at an earlier stage than the courthouse steps.

[Evan]

Dave: Good point. Many defense arguments must and should be made along the way for a variety of reasons. I meant to be limiting my discussion to "sure to lose" positions, which I seem to see pretty often, especially as tagalongs to better arguments. On the other hand, it's often hard to define what's a "sure to lose" position.

[Bonnie Canavan]

Evan please give some examples of defense "sure to lose" motions.

[Evan]

An example would be a motion to dismiss educating the plaintiff's lawyer about theoretical problems with the case caused by pleadings errors. If it's likely the court will allow the pleadings errors to be corrected with an amended pleading, as is usually the case, there might be reasons to wait to raise the issues.