§14.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§14.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Various tactical issues must be considered with any decision to bring a third-party action.

(1)Tactical considerations

A primary tactical challenge in a third-party proceeding is how parties will cooperate with each other. Cooperating parties may agree to take stances on the law and evidence that they otherwise would not take in a separate indemnification action such as sharing witnesses and evidence, developing a common strategy on witness examination, and agreeing not to call certain witnesses. When cooperation exists between parties, client consent should be obtained for decisions that would not have been made in a separate indemnification action.

The availability of discovery rules that enable a plaintiff to obtain more information from a third-party defendant than may be obtained through subpoenas and depositions of nonparties may militate in favor of bringing a third-party action.

Jurisdiction is another consideration. Apotential third-party plaintiff must make some prognosis whether a potential third-party defendant who is presently available for personal service will be subsequently unavailable if the primary action results in a judgment against the defendant.

If there is little question of liability in the primary action, the defendant may want to discuss with the third-party defendant the possibility of a joint settlement with the plaintiff on the question of liability, and to litigate the question of the right to indemnification in a severed action. Conversely, when liability is hotly contested but the right of indemnification is not, the third-party plaintiff and the third-party defendant may elect to settle their indemnity dispute before trial and present a united defense of the primary action. Parties doing so should be aware that such an agreement is discoverable, although a motion in limine may avoid its introduction at trial if it is discovered.

Another consideration facing a defendant is the impact that settlement of the main action might have on any subsequent lawsuit against the third-party defendant. A defendant may want to preserve the testimony of the plaintiff's witnesses before any indemnification action.

Atactic that has been employed in antitrust cases involves impleading a third party represented by the same law firm as an existing party. The resulting conflict of interest for that law firm may disqualify it from representing either party. This tactic, if employed to deny a party its counsel, rather than for legitimate third-party reasons, is unethical and can subject the third-party plaintiff to CR 11 sanctions.

(2)Tactical summary judgment and the preservation of joint liability

With the exception of employers, fellow servants, intentional tortfeasors, infants, incapacitated persons, and other individuals or entities incapable of fault, RCW 4.22.070(1) requires allocation of fault to all other persons or entities that cause a plaintiff's harm. A plaintiff who wishes to preserve joint and several liability may choose not to release a defendant because a released defendant will be treated as an "empty chair." Rather, the plaintiff may choose not to oppose a defendant's summary judgment motion or other motion to dismiss. This approach removes an unnecessary defendant from the case and still preserves potential joint and several liability against the remaining defendants because the judgment of nonliability precludes the remaining defendants from apportioning fault to the dismissed defendant.

A plaintiff may find a tactical summary judgment appropriate for the following reasons:

(1)	the defendant is judgment proof;
(2)	the plaintiff may wish to avoid accusing a sympathetic defendant of wrongdoing; or
(3)	the plaintiff may have a personal conflict with the defendant e.g., a spouse or other family member.

In addition to motions for summary judgment, the plaintiff may also decide not to oppose a defendant's motion to dismiss for failure to state a claim or for judgment notwithstanding the verdict. See Gregory C. Sisk...