Thursday, April 6, 2017

Litigation Strategy: Leave No Stone Unturned?

By Walter Whitman Moore

Some lawyers file every motion they can think of, and ask for every bit of discovery permitted by law, in every single case, regardless whether it makes any economic sense for the client. If you're a lawyer, don't be that lawyer. And if you're a client, don't hire that lawyer.

Often, the most cost-effective approach is just go to directly to trial. No motions. No elaborate discovery. No thousands upon thousands of pages of documents being indexed. Just show up for trial, present your case, and ask the jury or judge to do what the law and evidence require them to do.

Suppose, for example, that you represent a defendant who has a strong case that rests on the introduction of a few key documents and perhaps an hour or two of testimony. Don't run up your client's bill by filing demurrers, motions to strike and summary judgment motions, and by asking for thousands of documents and days of testimony that you do not need. It will take you less time -- much less time -- to try such a case and win it than to draft an elaborate motion to try to convince a busy judge to throw the case out of court without a trial.

Are there cases where it makes sense to move for summary judgment? Absolutely. If the trial would take four weeks, and your client is entitled to judgment as a matter of law based on some simple and indisputable fact, go for it. But do the math before adopting your strategy. Sometimes it's best to leave nearly all the stones unturned.

Walter Whitman Moore is a business trial lawyer in Beverly Hills. His website is