§15.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§15.8 STRATEGIC AND PRACTICAL CONSIDERATIONS

CR 15 is designed more for self-protection than as an offensive weapon. It permits a party to avoid a strategic disadvantage arising from inadvertent omissions, newly discovered evidence, or changed facts. Nonetheless, certain practical considerations should be kept in mind.

Although CR 15 on its face suggests that pleading errors or intentional omissions from original pleadings can be readily cured by amendment, the cases interpreting the rule prove that impression may become a trap. To conduct initial research of facts and law sufficient to avoid amendment is usually preferable to invoking the rule. Washington courts have frowned upon those whose omissions in pleadings are a result of a conscious decision, strategy, or tactic, particularly when delaying may give the opposing party an argument based on possible prejudice or disturbs the usual course of litigation. See §15.6(2)(e) and §15.6(4)(c) & (d), above. Motions to amend under such circumstances are frequently denied. Consider CR 15 and pertinent appellate decisions any time you make a conscious decision to omit a claim or party from a pleading. Such a decision should not be made lightly, as it may be irreversible.

If the need to amend arises, act promptly. If you are able to amend as a matter of course, simply file and serve the amended pleading; do not file a motion and risk denial. If the time to amend as a matter of course is expired, the simplest and preferred course of action is to ask opposing counsel to stipulate to an amendment. See §15.6(2)(b), above. Often counsel will consent, at least before discovery has advanced, because motions to amend are routinely granted.

If counsel will not stipulate, prepare a motion to amend as soon as possible after you discover the need to amend. As with all motion practice, fact-dependent positions (e.g., contentions that neglect is excusable or that the proposed amendment will be prejudicial) should be based upon specific facts supported by the record. Strong consideration should be given to the use of affidavits or sworn declarations. The nearer to trial the notice of motion is filed, the more reluctant the court may be to allow amendment. See §15.6(2)(e), above.

Counsel for both sides should be cognizant of the fact that the willingness of the court to grant a motion to amend may depend upon whether the court is considering an amendment changing a party or one adding a new claim or defense. See...