Chapter 4: Deciding on Your Strategy

• Pages: 59-70
• Author: Janet S. Kole

Deciding on

Your Strategy

Do you answer the complaint or do you move to dismiss

it? This is one of the most important and complex deci-

sions you will make at the beginning of your involvement

in this case. The basis of your decision depends on the

availability of certain legal defenses as well as on strate-

gic considerations.

Iuse the phrase “legal defenses” because if your

client’sdefense is fact-based (e.g., “the defendant already

paid the debt the plaintiff is seeking to collect”), it is no

longer apreliminary matter that can be determined by a

motion to dismiss. Afact defense usually has to await the

unfolding of discovery,atwhich point the defendant can

move for summary judgment based on the record.

Again, the local rules vary with respect to some de-

fenses and whether they must be raised in an answer or

in amotion to dismiss (or,inastate like Pennsylvania,

via preliminary objections or petition, depending on the

issue). Be sure you know your rules of procedure.

Chapter Four

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