When Lawyers Recommend Wasting Money

Some judgment calls require judgment.

Others do not. Some judgment calls simply require the ability to say “no.”

Let me start with the low-stakes example: Should defendant oppose plaintiff’s motion to amend the complaint?

Almost certainly not.

The plaintiff seeks leave to amend. Since the plaintiff asked for it, defense counsel naturally opposes the idea. But what does the conversation with inside counsel sound like?

“We should oppose plaintiff’s motion to amend.”

“Why?”

“Because plaintiff requested it.”

“Will opposing the motion achieve anything?”

“Oh, no. Motions to amend are routinely granted. We have almost no chance of winning.”

“Then why should we oppose the motion?”

“Hmmm. Well, I suppose it gives us a chance to preview the arguments that we’ll make in the motion to dismiss the amended complaint.”

“Why do you want to preview those arguments in a context in which you’ll lose them? Why not make those arguments for the first time in your motion to dismiss, without the judge having already heard the arguments once and rejected them?”

“Hmmm.”

But that’s small potatoes. It doesn’t cost very much to oppose a motion to amend.

The problem is even worse when outside counsel recommend wasting money on expensive briefs that have no chance of succeeding:

“Let’s oppose plaintiff’s motion to certify a class in this securities litigation.”

“Why?”

“Plaintiff’s proposing it, so we should oppose it. And this case will be extraordinarily expensive to settle if it’s certified as a class action.”

“Will our motion to oppose class certification prevail?”

“Oh, no. Unless we have something very unusual to say — and we don’t, in this case — then motions to certify classes in securities cases are granted as night follows day. It’s hopeless.”

“How much will it cost to take the depositions and draft the opposition brief?”

“I dunno. Maybe a half million bucks.”

“And we should pay that money why?”

“Hmmm.”

Look: I know that if the other side suggests it, then you oppose it.

But please think about whether filing the brief, or opposing the motion, can conceivably do any good.

If it can’t, let’s save our breath — and our money.

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Mark Herrmann spent 17 years as a partner at a leading international law firm and is now deputy general counsel at a large international company. He is the author of The Curmudgeon’s Guide to Practicing Law and Inside Straight: Advice About Lawyering, In-House And Out, That Only The Internet Could Provide (affiliate links). You can reach him by email at inhouse@abovethelaw.com.

When Lawyers Recommend Wasting Money curated from Above the Law