Litigators are trained to spot motions: a complaint vulnerable to demurrer, a claim potentially subject to dismissal, deficient discovery responses, or evidence open to exclusion.
But identifying a motion that can be filed is different from deciding whether it should be filed.
A motion is a tool, not an objective. The strategic question is not simply, Can we win? It is: Will this motion materially improve the client's position?
Winning a Motion Is Not Always Winning the Case
Consider a complaint with a pleading defect that can readily be cured by amendment. A successful demurrer may produce a favorable order—but also months of briefing, an amended complaint, and another round of pleadings, with the parties ultimately in much the same position.
Sometimes that process is worthwhile. A demurrer may eliminate a claim, narrow the available remedies, expose a theory that cannot be repaired, or clarify the issues before expensive discovery begins.
In other cases, answering the complaint and moving directly into discovery may reach the evidence—and a meaningful resolution—more quickly. The important question is not whether the complaint is vulnerable. It is whether attacking the pleading advances the client's endgame.
Count the Full Cost of Motion Practice
Attorneys' fees are only the most visible cost. A motion can also:
- Delay discovery, depositions, mediation, or trial;
- Reveal a legal theory or factual weakness the opponent has not yet recognized;
- Give the opposing party time and direction to cure a defect;
- Require the client to divert personnel and resources from more valuable work;
- Create an unfavorable ruling that shapes the remainder of the case; or
- Consume credibility if the relief sought is technically available but disproportionate to the dispute.
The same analysis applies outside the pleadings. A discovery motion may cost more than the information is worth if the evidence can be obtained through a deposition, third-party subpoena, or narrower request. A motion to exclude evidence can educate the opponent about a foundation problem it still has time to repair. A marginal motion may also distract from the depositions, expert work, or trial preparation that will decide the case.
None of this means motion practice should be avoided. Some motions fundamentally alter a lawsuit and should be pursued aggressively. The point is that value should be measured by what the motion accomplishes for the case—not by whether counsel can obtain a favorable ruling.
Timing Can Be as Important as the Argument
A strong argument does not necessarily become more valuable when filed immediately.
In some matters, previewing a potentially dispositive motion before mediation can create leverage without first incurring the full cost of briefing. Developing the factual record before filing may convert a plausible motion into a compelling one. Waiting until an opponent has committed to a position in discovery or deposition testimony may prevent a strategic weakness from being easily repaired.
Delay carries its own risks. Filing deadlines, waiver rules, discovery cutoffs, and the need for immediate relief can require prompt action. Preserving an argument is not the same as ignoring it. Effective timing requires counsel to understand both when an issue will have maximum strategic effect and the last responsible moment to act.
Ask What Changes If the Motion Is Granted
Before substantial motion practice, counsel and the client should be able to answer several questions:
- What concrete relief will the motion produce? Will it eliminate a claim, narrow damages, compel genuinely necessary evidence, secure assets, or exclude proof the opponent actually needs?
- Is the result durable? Can the opponent cure the problem through amendment, supplemental discovery, or additional foundation?
- Is the record ready? Would focused discovery or a key deposition materially strengthen the motion?
- What will the motion teach the opponent? Does filing reveal a weakness, theory, or trial strategy that is more valuable if preserved?
- How does timing affect leverage? Will the argument have greater impact before mediation, after discovery, or closer to trial?
- Is there a less expensive path? Can stipulation, targeted correspondence, informal resolution, or a narrower request achieve the same objective?
If the only clear answer is that the motion can probably be won, the strategy may not yet be complete.
Litigation Strategy Requires an Endgame
The right decision depends on the desired outcome. A client seeking emergency relief may need immediate, forceful motion practice. A defendant facing a claim that can be eliminated permanently may benefit from an early challenge. A party preparing for mediation may gain more by developing and preserving an argument than by filing it prematurely.
Sometimes the best strategy is to file early. Sometimes it is to build the record first. Sometimes it is to preview the motion, use the risk it creates, and avoid the expense altogether. And sometimes the motion is simply not worth the client's money.
Knowing the difference is part of the judgment clients hire litigators to provide.
The best motion is not always the one counsel can win. Sometimes, it is the one counsel deliberately decides not to file.
Tajima LLP represents plaintiffs and defendants in significant business and commercial litigation throughout California, with a focus on strategy proportionate to the stakes and the client's broader business objectives.