Nobody Likes Motions to Compel:
Plaintiff attorneys don’t like them because they aren’t paid an hourly fee to draft them; Defense attorneys don’t like them because they know how effective these motions are at slicing through their procedural gamesmanship; and Judges don’t like them because these motions take up valuable court time with juvenile spats between grown adults—lawyers—who simply can’t agree on anything.
Motions to Compel are Necessary:
But Motions to Compel are necessary and required for most cases. Filing a motion to compel immediately does three things:
Put Defense Attorneys on Notice:
First, it puts the defense attorney on notice that you are not like some plaintiff attorneys who simply take cases in bulk and settle for pennies on the dollar. These types of attorneys generally do not bring motions to compel and live with the responses and documents the defense attorney chooses to give them. But filing a well-drafted motion to compel informs your adversary that you are not like some plaintiff attorneys.
Dictate the Relationship Between Yourself and the Defense Attorney:
Second, by filing the motion to compel, you dictate the relationship between yourself and the defense attorney. You are establishing that you require the defense to provide valid responses, as well as all non-privileged documents, pertaining to the case. Ironically, it’s been my experience that the relationship with defense counsel generally improves after filing several motions to compel.
Establish That You Believe in Your Client’s Case:
Third, by filing the motion to compel, you establish that you believe in your client’s case and are willing to put your valuable (and finite) time and resources into helping your client’s cause. Attorneys that don’t believe in their client’s case are unlikely to bring motions to compel. And defense attorneys know that a plaintiff’s attorney is unlikely to take a case to trial if he/she does not believe in it.
In many cases, once you’ve filed the motion to compel, the defense attorney will call you a week or so before the motion hearing date, concede, and ask if you will withdraw the motion if they provide the answers or documents you are seeking.
But in other cases, the defense will press its luck to see what the Court will say about your motion. In the end, it really doesn’t matter if you win or lose your motion. (I’ve lost some motions I was sure to win, and won others I was sure to lose. There’s no rhyme or reason to it). What matters is that you file the motion. Once filed, you establish that you are a good lawyer who requires proper responses from the defense—and, now, you’ll likely begin to get them. Try it out in your current or next case. See for yourself how well it works.