Chapter §21.8 Strategic and Practical Considerations

• Jurisdiction: Washington

§21.8STRATEGIC AND PRACTICAL CONSIDERATIONS

Because the courts may add or drop parties "on such terms as are just," counsel seeking to add or drop a party must attempt to minimize the delay, inconvenience, and unnecessary expense that may result. If a party fails to move promptly to remedy misjoinder, the court could impose terms, including the following: attorney fees for the party that might have been dropped earlier; attorney fees and expenses for other existing parties to undertake new discovery when additional parties are added; and court expenses if delay of the trial is necessary.

Before adding new parties to an existing suit, consider the advantages and disadvantages of filing an entirely new and separate suit against the additional parties. Factors that should weigh into this decision include (1) the potential impact on the fact finder of the new parties (for example, whether the new defendant will increase or decrease sympathy for all defendants); (2) the potential impact on settlement negotiations; (3) whether the addition of parties will increase the likelihood of counterclaims and cross claims being asserted; (4) whether additional parties will make discovery or trial itself more complex and expensive; and (5) whether separate trials are likely even if the contemplated parties are joined. In other words, when considering whether to join a party you must perform a risk/benefit analysis and evaluate the following questions: What impact will joinder have on the case? Will the other party demand a continuance because of the late joinder? If the additional party is not joined, will the original defendant be able to escape liability by pointing to the "empty chair" at the defense table? Will joinder create confusion regarding who is truly at fault? If the additional party is not joined, can any party invoke collateral estoppel in any subsequent case involving the nonjoined party? In short, is the additional party worth pursuing and, if so, will the result be better if you sue the absent party in the present case or in a later action?

When a plaintiff seeks to add a party-defendant, the motion should state with specificity why the proposed defendant is a necessary party under CR 19 or a permissive party under CR 20. If an indispensable party is absent from the suit, you may want to cover all bases by bringing a motion to add the indispensable party. Any motion regarding joinder of parties should also state the grounds for asserting...