Page 43 - CCCA Magazine Spring 2015

{ legal iNNovatioN } leadershIp through InstructIons: When to grant InstructIons to BrIng a motIon By Atrisha Lewis t is a common scenario: outside counsel MOTION INSTRUCTION DECISION-MAKING MATRIX has requested your instructions to bring Ia motion. While good counsel will always outline the pros and cons of any motion, Alignment + Grant Instructions Consider (weigh likelihood of success) in-house counsel must independently con- with sider the benefts and downsides and, most Strategic Consider Do not grant (weigh tactical advantages) importantly, balance cost with how the Objectives - instructions motion will advance the litigation strategy. - + Consider asking the following questions Cost to Bring the Motion before you provide your answer: 1. What is the goal of the motion and mation from the affdavits or cross-exam- fdavit, they will have to make themselves how important is that goal to the overall ination of the other side. available for that and for cross-examina- litigation? Is the motion being brought tion. On the fip side, certain motions, to gain some type of advantage? For ex- 4. What is the likelihood of success such as one to stay a proceeding or con- ample, a motion to compel an answer and the impact of a loss on the un- solidate proceedings, may ultimately re- to a question refused on discovery (i.e. derlying litigation? The former is often duce the overall cost of the litigation. a refusals motion) may help your client hard to predict, so focus on the latter. For Once you have answers to the above obtain helpful information for trial or a example, bringing a losing motion may questions, you must come to a decision. forum non conveniens motion may help colour your trial judge (if it is the same The above Motion Instruction Decision- you move the litigation to a more friendly judge who will ultimately hear your trial). Making Matrix helps weigh the various jurisdiction. The motion may also bring Also consider the impact on your team’s factors. an end to the litigation, such as a motion morale. The most obvious decisions are the ones for summary judgment. Also consider where the cost of the motion and the stra- how the goal of the motion fts within 5. When will the motion be heard? It tegic objective of the motion are aligned the overarching litigation strategy. For may take time for your motion to be or opposed. The two areas of diffculty are example, will you expend resources on a heard, so is the relief something you will motions that will be considerably expen- refusals motion to obtain information not still want in the future? For example, in sive to bring but are also extremely impor- necessary to prove your case at trial? the context of a refusals motion, there tant to the objectives of the litigation. In may be another way to obtain the infor- those cases, the most important secondary 2. What is the precise relief sought? mation you require faster. consideration is generally the likelihood Consider how counsel has framed the of success. When a motion is cost-effec- relief sought and consider whether this 6. Will the motion delay the underlying tive but not particularly important to the is something a court has jurisdiction or litigation? Bringing a motion may delay strategic objectives, tactical considerations a general appetite to grant. Most impor- the litigation for two main reasons. First, such as whether the motion will delay the tantly, ensure the relief actually advances both sides may focus their energies on the litigation are very important. ❚ the goal of the motion. motion rather than on moving the litiga- tion forward. Second, bringing motions 3. What evidence will be brought on may prevent you from taking other pro- Atrisha Lewis is an associate in McCarthy Tétrault’s Litigation the motion? Ask counsel what evidence cedural steps, which will delay obtaining Group in Toronto. She maintains is needed in support of the motion and a trial date. a broad litigation practice, with whether putting any evidence in an af- particular focus on complex fdavit will compromise your case in the 7. What is the true cost of the motion? commercial disputes, and has future (either through the evidence it- Consider the cost of the motion beyond appeared before the Ontario Su- self or by virtue of admissions on cross- counsel’s time, such as the value of in- perior Court, the Divisional Court examination). This risk must be weighed ternal resources’ time. For example, if an of Ontario, the Federal Court and the Federal Court against the potential for additional infor- internal individual needs to swear an af- of Appeal. Follow her on Twitter: @atrishalewis Canadian Corporate Counsel assoCiation | CCCa-aCCje.org 43