Reserved Remedy #18
Definition
Strategy technique
Referencing a remedy the movant could pursue but is choosing not to pursue at this time. Naming a genuinely available remedy and expressly deferring it signals restraint and keeps the present motion focused — the court sees a movant proceeding in measured steps, holding a real option in reserve rather than over-reaching.
Example
"Whether Respondent's repeated failures to comply with this Court's discovery orders warrant preclusion is a matter for future determination by this Court." A preclusion remedy is identified. The facts supporting it are in the record. The motion isn't filed. Yet.
Anti-pattern
"Plaintiff reserves all rights to seek disgorgement, sanctions, contempt, bar complaints, and any other remedy available at law or in equity." (threatening laundry list, not restrained reserve)
Requirements
- A specific remedy is identified by name or legal basis
- The drafter explicitly defers it to "future determination" or equivalent
- The factual predicate for the reserved remedy is already in the record
- The deferral implies restraint, not weakness
How it differs
- Distinguished from Relief Underload
Relief Underload is about asking for less than the facts support on this motion. Reserved Remedy is about noting that another motion exists and the movant is choosing not to file it yet. Relief Underload operates within the current motion. Reserved Remedy operates across motions.
Ethical boundary
Reserving a genuine, civil remedy for future determination is proper. Referencing one you have no intention or basis to pursue, in order to extract concessions, is not. The line is brightest where the reserved remedy is a criminal charge or a disciplinary/bar complaint: raising either to gain advantage in the civil matter is prohibited outright (NY RPC 3.4(e)), and the "bar complaints" entry in the anti-pattern above crosses it. Reserve only remedies that are both real and civil.
Deployment note
A reserved remedy can read as empty if the predicate is not in the record, and a court may treat non-filing as an inability to make the showing. Strongest when the predicate is already in the record and the remedy is genuinely available now.
Counter (opposing view)
A prepared adversary may respond that "if the predicate existed, the motion would already be filed" — turning the reserved remedy into evidence the movant cannot make the showing. Reserve only what you could file tomorrow, because the opponent will invite you to.