Legal Pleading
101
(The Basics)
The first stage in any lawsuit is the pleading stage. Plaintiffs initiate the lawsuit by filing a pleading, usually called a
Complaint. I. e. “Plaintiff’s Original Complaint” Defendants then respond by filing a responsive pleadings.
Usually this is a pleading called the "Defendant’s Answer” The Defendants has a definite time limit on filing their
answer. Be sure to check your local Rules of Procedure. You must follow the Rules!
Purposes of the Complaint
Historically Pleadings Have Had 5 Functions: 1. To commence litigation
2. Giving notice of the nature of a claim or defense. 3,. Set forth the facts each party believes to exist.
4,. Narrow the issues.
5. Provide a means for speedy disposition of the claims.
Also, the complaint should to tell a persuasive story to a varied audience, sufficiently set forth the jurisdictional,
factual, and legal bases of the case to avoid or limit the possibility of a motion to dismiss; and, to enhance the
usefulness of the defendant’s answer to the complaint and the ability to obtain useful information though formal
and informal discovery: and to lay the groundwork for the resolution of the case through settlement.
Furthermore, the complaint frames the scope of the litigation. The complaint sets forth the facts, the legal theories,
the relief requested, and advances the core theory of the litigation. The complaint serves as the litigation
map that will determine the route the parties take as they navigate pretrial motions, discovery, settlement
and trial. It will also serve as the first public face of the litigation. It should describe the case to the parties,
the judge, the clerks, and the opposing party. It will set the tone for future discussion and communications
about the case.
Commencing Litigation
A civil action commences upon the filing of the complaint with the court clerk. The filing date of the complaint ordinarily
determines whether the lawsuit is within the applicable statute of limitations. The date of filing also sets the clock running
for other dates, such as the deadline for serving the defendant with the summons and complaint The date of service then
triggers the timing of a series of pretrial procedures. When to file the complaint is a decision to be made based on factors
beyond the need to meet the statute of limitations. Of course, if you are facing an irreparable injury, you will need to
file the complaint promptly along with or immediately followed by a motion for temporary and preliminary relief. If immediate
harm is unlikely, you may need to balance your interest in a prompt resolution of the matter with the risk that the quick filing
of a complaint may actually prolong the case in the long run. While complaints can be amended fairly liberally, doing so takes
time and may ultimately delay resolution of the case. Often, the best approach is to spend the time needed initially to file
a polished and thorough complaint.
You must also bear in mind that litigation is like a chess match. While the complaint is your first move, you must have
subsequent moves in mind. Such tactics include filing a prompt motion for summary judgment on cases involving little or no discovery, or pressing for a prompt initial conference and discovery. Once you have contemplated your subsequent moves, reexamine your complaint to make sure that it adequately supports these strategies. These strategies may call upon you to begin drafting additional documents before the complaint is filed.
Telling Your Story
The complaint is the first opportunity that you have to tell the your story and to explain why the lawsuit has been filed.
It is the first document that will be seen by the judge and law clerks and will be referred to by them repeatedly throughout
the case. The complaint will have an audience in the defendants, opposing counsel, the public and other observers.
The complaint must therefore be logically and narratively compelling so that, when the reader reaches the final page, he
feels that a wrong has been committed, that your legal claims are sound, and that the relief you are requesting is reasonable
and deserved. In addition, the complaint is your first opportunity to present yourself; thus, you want it to be error-free,
well-written, persuasive, and reliable.
The best place to give a clear and concise summary (or core theory) of your story is in the complaint’s preliminary
statement. It is the legal “sound bite” that introduces the more technical and complex matters that follow and is what the
judge and others rely most upon in understanding what your case is about. It should be focused and written in plain
language. Drafting the preliminary statement is truly an art because although it is neither an argument nor a detailed
rehashing of the contents of the complaint, it must be convincing.
The balance of the complaint continues to tell the story of the case. The “facts” section is the primary place where the story is fleshed out. As in an affidavit, each paragraph of the factual allegations should set out a simple, objective statement of fact.
Every fact that is necessary to plausibly support each of the legal claims, and the standing of the plaintiffs to advance them,
must be included. It should allege with some precision which legal requirements have been violated, what conduct defendants
have done or have omitted, and what relief is sought. You should “cross check” the complaint against your litigation and
trial plan and, as you draft the complaint, have an understanding of how each fact alleged will be proved. Thus, as both a
matter of style and strategy, you should generally avoid prefacing allegations with “upon information and belief.” If, however,
an allegation lacks evidentiary support but is “likely to have evidentiary support after a reasonable opportunity for further investigation or discovery,” it must be specifically identified in the complaint. Once the factual portion of the story is told, the sections on legal claims and relief should flow as logical extensions of the facts bringing the reader along with you. When
drafting, never merely copy allegations from another complaint without clearly understanding whether those allegations are appropriate in the case and verifying that the allegations comport with the current law in your district or circuit.
Be sure to review the complaint as a double-check for factual clarity and legal sufficiency.
Lawsuits are all about the Facts, the Rules and the Controlling Law.
It is essential that you Know each of them and how to use them Effectively!
Fact Pleading vs. Notice Pleading: In statute pleading, generally, a pleader is required to plead the
ultimate facts and the relief sought. Consult your State's Rules of Civil Procedure and the
Federal Rules of Civil Procedure “FRCP”. The complaint must contain a statement of the facts”
constituting the cause of action in ordinary and concise language. The Federal Rules FRCP 8(a)(2)
calls for a short and plain statement of the claim showing that the pleader is entitled to relief.
The latter is called notice pleading. Rule 8 FRCP effectively abolishes technical forms of pleading.
Contrasted with the four historical functions of the pleadings, under the federal rules the only function
left to be performed by the pleadings is that of notice. Generally, it will be good practice to use the
Requirments found in the Federal Rules in lawsuits filed in the state courts.
Ethical Limitations and Disfavored Claims: FRCP 11 that every pleading must be signed by at least one attorney of record or by the party, if he is
not represented by counsel. The signature constitutes a certificate that the signer has read the pleading,
that to the best of his knowledge, information and belief there is good ground to support it, and that it is
not interposed for delay. Rule 11 requires the lawyer to conduct a reasonable inquiry into the facts and
the law before filing a claim, and the applicable standard is one of reasonableness under the circumstances.
The purpose of the Rule 11 signature requirement is to bring home to the signer his or her personal non-delegable
responsibility to certify the truth and reasonableness of the document being filed. (Pavelic & LeFlore v. Marvel
Entertainment, 493 U.S. 120, 110 S.Ct. 456 (1989)) Rule 11 violations may be punished by sanctions against
the particular individual who signs his or her name.
Rule 11 places a great emphasis on the duty of lawyers to avoid abuse of litigation by requiring an attorney to
investigate both the legal and factual basis of a claim before filing suit, and by promoting increased use of
sanctions for violation of various rules. Courts have begun using sanctions energetically (some think too
energetically) to punish those who bring groundless suits, an effort that may deter some groundless litigation.
(86 Col.LR 433, 444) An "appropriate sanction" under Rule 11 may include paying the other parties expenses.
Since a Rule 11 violation is complete when the paper is filed, a voluntary dismissal does not expunge it.
(Cooter & Gell v. Hartmarx Corp., 496 U.S. 384, 110 S.Ct. 2447 (1990))
Particular Pleading Problems
Essential Ingredients of lawsuits are called elements:
Before you file your lawsuit you must know and allege in your statement of facts the essential fact elements of
at least one of your claims for relief!
You cannot hope to win if you don't do this! If you're filing a lawsuit, as a plaintiff, you must allege all the
essential fact elements of at least one "cause of action" (e.g., breach of contract, negligence, fraud, etc.).
In some courts causes of action are called "claims on which the court can grant relief".
If a plaintiff fails to allege all the essential fact elements of at least one claim on which the court can grant relief,
he cannot possibly expect the court to grant the relief he seeks!
Yet, every day thousands of pro se plaintiffs file lawsuits that make "Constitutional" arguments without
alleging the essential facts necessary to establish at least one "cause of action" on which the
court can grant relief. Then, when the courts fail to grant the relief they seek, they blame the courts.
In order to plead a right to relief, the pleader must first know the essential elements upon which his claim
or claims will be based. You should allege and be prepared to prove the facts “elements” the offense you are charging. I.e. :
Luce v. Interstate Adjusters, Inc., 26 S.W.3d 561, 2000 Tex. App. LEXIS 6364 (Tex. App., September 8, 2000,
Opinion Filed )
[HN2] - The Texas Supreme Court has held that in order to prevail in a malicious prosecution action arising
from a civil case, a plaintiff must establish the following elements: (1) the institution or continuation of civil
proceedings against the plaintiff; (2) by or at the insistence of the defendant; (3) malice in the commencement
of the proceeding; (4) lack of probable cause for the proceeding; (5) termination of the proceedings in plaintiff's
favor; and (6) special damages. Thus, whether a malicious prosecution claim is based on the institution of a
proceeding or the continuation of a proceeding, the requisite element of malice relates to the commencement
of the proceeding. A party seeking to recover on a malicious prosecution claim must strictly adhere to the
elements of the cause of action.
INESCAPABLE CONCLUSION: YOU MUST
state at least one cause of action by alleging all the essential fact elements..
Responding to the Complaint Pre Answer Motion:
The FRCP, have the motion to dismiss for failure to state a claim (FRCP 12(b)(6)) and a motion to
strike an insufficient answer (FRCP12(f)) . Each asks whether, even if all the allegations are true, the
pleader has stated a valid claim or defense under the law.
FRCP 12(b)(6) must be read in conjunction with FRCP 8. Because Rule 8 requires only "a short and
plain statement of the claim showing that the pleader is entitled to relief," few pleadings are likely to fail
under Rule 12(b)(6). It is most effective to attack pure questions of law; e.g., is the statute of limitations a bar?
Does the statute of frauds preclude enforcement of the contract?
Rule 12(b) motions include all the threshold motions to dismiss for lack of jurisdiction, insufficiency of
service of process, failure to state a claim, or failure to join an indispensable party. All Rule 12(b) motions
must be brought at one time and must be made before the filing of a substantive pleading such as an answer.
Waiver of Preservation of Certain Defenses:
The defenses of lack of Jurisdiction Over the Person, improper Venue, insufficiency of process and insufficiency
of Service of Process are waived if not included in a Rule 12 motion, or, if no such motion is made, if they are
not included in the responsive pleading or an amendment as of right to that pleading. The defenses of failure
to state a claim upon which relief can be granted; failure to join anIndispensible Party under FRCP 19, and
failure to state a legal defense to a claim may be made in any pleading permitted under FRCP 7, or by a motion
for judgment on the pleadings, or at the trial on the merits. Most courts consider the defense of failure to
join an indispensable party jurisdictional and therefore never waived. The defense of lack of Subject
Matter Jurisdiction is never waived.
The Answer
"General" or "Specific" Denial?
A general denial consists of one sentence simply stating that "defendant denies each and every allegation
of plaintiff's complaint and demands strict proof therof." A specific denial involves a sentence-by-sentence
or paragraph-by-paragraph analysis of the complaint, denying only those allegations that defendant
intends to contest. Typically, the general denial is used when defendant contests the basic sum and substance
of the complaint even though a few of the allegations are true.
Federal courts limit the use of general denials to those cases in which defendant actually intends to controvert
each and every one of plaintiff's allegations. (See FRCP 8(b)) This virtually eliminates use of the general
denial since it will be an exceedingly rare complaint in which none of the facts alleged is true. Check your
state Rules of Civil Procedure.
Affirmative Defenses:
Even if all plaintiff's allegations are true, defendant may be able to present additional facts establishing a defense.
In such a case, the defense is called an Affirmative Defense and defendant must plead it in the answer in
order that plaintiff is aware of the allegations and has an opportunity to prepare to meet them. Unless an
affirmative defense is pleaded, it cannot be proved at trial, although the court in its discretion, may
give defendant leave to amend the answer to add the defense at any time. One can distinguish an affirmative
defense from one that can be raised by denial merely by determining whether the particular fact controverts
one of plaintiff's allegations or whether it deals with an entirely new matter having nothing to do with whether
plaintiff's claims are true or not.
FRCP 8(c) lists 19 affirmative defenses that must be raised specifically. This list is not exhaustive, however.
In determining whether a particular defense must be affirmatively raised, courts look to statutes in the case of
Federal Questions and to state practice in Diversity cases. In general, defendants must raise affirmatively
defenses that do not flow logically from the plaintiff's complaint. E.g., a defense of the Amendment of
Pleadings FRCP 15(c) provides that whenever "the claim or defense asserted in the Amended Pleadings
arose out of the conduct, transaction, or occurrence set forth or attempted to be set forth in the original
pleading the amendment relates back to the date of the original pleading." This fiction of "relation back"
is of great importance in avoiding the bar of the statute of limitations.
Relation back is dependent on four factors: (1) the basic claim must have arisen out of conduct set forth in
the original pleading; (2) the party to be brought in must have received such notice that it will not be prejudiced
in maintaining its defense; (3) that party must or should have known that, but for a mistake concerning identity,
the action would have been brought against it; and (4) the second and third requirements must have been
fulfilled within the prescribed limitations period. (Schiavone v. Fortune, 477 U.S. 21, 106 S.Ct. 2379,
91 L.Ed.2d 18(1986))