Friday, November 26, 2010

File A Lawsuit: Drafting The Complaint

Every complaint has the same basic framework.  The idea is to tell the court, and your adversary, why you are seeking judicial intervention.  You have to explain what happened, what you want, and why you think you deserve it.  Thus, every complaint should do at least five things: (1) give a quick overview of the case; (2) identify the parties; (3) state sufficient facts to show that the plaintiff is entitled to relief; (4) explain the legal basis for the relief sought; and (5) explain what relief you are seeking.  In addition, sometimes you are required to include in the complaint statements explaining that you are in the right court and you have jumped through all the required hoops prior to filing a lawsuit.  

<< Format and Procedure || "Pleadings" Table of Contents || The Introductory Paragraphs >>

How to File a Lawsuit: Pleadings

Although it is often considered merely administrative, drafting a pleading can be an art.  In law school, I spent a while working part-time for a small firm that did mostly personal injury work.  While I was there, they took on a complicated severence dispute.  The plaintiff was an international finance executive who had gone blind from diabetes.  He was pursuaded to resign with a reduced severance package based on the promise that he would also be receiving long term disability benefits.  Then, his benefits were denied.  Because employee benefits were involved, we had to sue in Federal Court under ERISA.

The complaint I drafted was very unlike the firm's usual fodder.  I learned the area of law, read everything I could on drafting a pleading, and modeled it on samples from similar cases.  The attorney assigned, however, didn't like it.  She cut it down, took out the headings, and turned it into a list of vague, non-specific, allegations similar to the complaints filed for the firm's day-to-day car accident cases. After the now-gutted complaint was filed, the judge required it to be re-drafted, saying it was "not a model of clarity."  The criticism stung, but I took some satisfaction in knowing that my original work had been right, or at least more in the right direction.  

The point of the story is that "a model of clarity" is a good standard for any written work, and a pleading is no different. 


* Types of Pleadings

* Format and Procedure

* Drafting The Complaint

          - Intro Paragraphs

          - Jurisdictional Statement

          - Parties Section

          - Facts Common to All Causes of Action

          - Conditions Precedent

          - Causes of Action

          - Demand for Relief

Filing A Lawsuit: Types of Pleadings

Pleadings are the first papers in a litigation, where the parties lay out their respective positions.  The most basic pleadings are the complaint and answer.  In the complaint, the plaintiff explains why they are invoking the court's jurisdiction and what their claims are.  In the Answer, the defendant either admits or denies the plaintiff's allegations, asserts its affirmative defenses, and may also assert counterclaims against the plaintiff,  cross-claim against a co-defendant, or third-party claims bringing in a new party.

A complaint initiates what's called a "plenary action," meaning that it's a broad-scope litigation following all applicable procedural formalities.  The defendant can either move to dismiss or answer.  

In New York State practice, there is a second round of pleadings called a Bill of Particulars, where the parties ask for more detail concerning the allegations of the complaint or affirmative defenses.   Although bills of particulars are echanged (and at times supplemented or amended) during the discovery process, they are pleadings, not a discovery device, and so are really only meant to clarify the claims and issues.  

Once an answer is received, there's discovery: first the exchange of documents and things, then depositons.  In New York State practice,  Once discover is completed, there's motion practice to determine what, if any, issues can be decided as a matter of law.  Then, there's pre-trial proceedings; then a trial.

Other types of proceedings have their own pleadings. One example is a special proceeding, which is a summary proceeding wherein a hearing date is scheduled immediately.  Landlord-tenant disputes, Article 78 proceedings,, and foreclosures are typical examples of special proceedings. The initiating pleading in a special proceeding is usually called a "petition" and the equivalent of an answer is usually called a "response and objections at law."  

"Pleadings" Table of Contents || Format and Procedure >>

Filing A Civil Complaint: Format and Procedure

A complaint is the standard pleading for a civil action.  A complaint is a "short plain statement" showing why the plaintiff is entitled to relief.  Plain, of course, does not necessarily mean boring, vague, or bland. The minimum requirements are not a goal. It just means not to include irrelevant garbage, character attacks, or emotive argument

Individual courts have different formatting requirements, so it is important when practicing in an unfamiliar court to review the local rules.

The summons serves as a cover page for the complaint, telling the defendants how long they have to Answer and notifying them of the risk of default.  You can find a form summons relatively easily online.

The complaint should be in at least 12 point font, on regular letter-sized paper.

Unless the local rules require the law firm's name and address on the very top of the page (some do), the complaint starts with a caption, which lists the court and the parties.  All of the parties must be listed.  Next to the caption, the document is titled ("complaint" or "verified complaint"), and identifies the index or docket number.

Every paragraph, other than the opening paragraph, "wherefore" clause, and headings, is numbered.
The opening pragraph, as in many legal documents, identifies the speaker or speakers in all caps, and ends with a colon.  "PLAINTIFF, through his attorneys, LAW FIRM, as and for a verified complaint, alleges as follows:" then the headings and numbered paragraphs begin.

The first paragraphs should be intro paragraphs, explaining what the case is about.  Some courts will then require a jurisdictional statement, explaining why that particular court is a proper forum for the dispute.  Then there is a section identifying the parties; then the facts common to all causes of action; then the causes of action; then the demand for relief.  
A complaint is verified (some jurisdictions call it certified) if it is sworn to as true by one of the plaintiffs.  If a complaint is verified, it can serve as an affidavit of merit. An attorney can make the verification if the plaintiff is not within the same county, but an attorney's verification has no probative value.

<< Types of Pleadings || "Pleadings" Table of Contents || Drafting the Complaint >>

Drafting a Complaint: The Intro Paragraph

I generally put a preliminary statement in the first few paragraphs of every complaint. This preliminary statement is not long, but contains a few short, punchy, sound-bites.  That way, when anyone looks at it, they can tell in a few seconds what the case is about.

The Preliminary Statement is a brief overview.  Paint with broad strokes, and don't try to cram in every fact.  The thing to be careful with, however, is not limiting yourself.  Be sure to phrase things broadly and qualify facts with words such as "among other things," "including," "such as," or "for example."

A few of my cases have made national news. Without giving any comment, the reporters had a great quote right from the first page of the complaint.  This can be extremely helpful in high-publicity cases, since as a general rule attorneys should keep their media comments to a minimum.  Having done some freelance reporting and media relations work, I can tell you that reporters - like any other professional writers - appreciate a well-turned phrase.  Sadly, that can be a rarity among practicing attorneys.

More important than providing information for reporters, you want to give the court and the other side a clear sense of what the case is about.

The complaint is the first basis the defendant, their attorney, or their insurer has for assessing the value of the case.  Similarly, the first thing that happens in any trial is that the judge is given copies of the "marked" pleadings, which is a copy of the complaint and answer with notes in the margin as to whether each defendants admits or denies the individual allegations.

A great complaint gives a good first impression; a poor complaint gives a bad first impression.  It is the first salvo in a litigation, and should suggest the quality and competance that can be expected from the plaintiff.

<< Drafting the Complaint || "Pleadings" Table of Contents || Parties  >>

Drafting a Complaint: The Jurisdictional Statement

Many courts require a jurisdictional statement.  Always check the local rules.  If something is required, put it in.

In New York State practice, a jurisdictional statement is not required, but it is customary when seeking money damages in the state Supreme Court to put a statement in the Demand for Relief that the anticipated damages exceed the jurisdiction of the lower courts.  The New York State Supreme Court is a court of general jurisdiction: you can file any case, about anything (unless it is exclusively Federal), for any monetary amount.  When dealing with smaller amounts, however, there are lower courts where, as a matter of administrative convenience, such cases should be filed.  Cases below $25,000 belong in the County Courts ("Civil Court" in New York City); below $15,000 belongs in the District Courts; and below $3,000 should go to a small claims court.  If you file in the Supreme Court, and the Judges feel the case should go somewhere else, they will send it to a lower court under C.P.L.R. 325(d).  

The Federal Courts are where Jurisdictional Statements are typically required.  For a Federal Court to have power to hear a case, it must be either a Federal Question (i.e. arising under either a Federal Statute, the U.S. Constitution, Maritime law, or a Treaty), or be between citizens of different states and involve more than $75,000 in dispute.  See 28 U.S.C. § 1331 and 1332.  

Drafting A Pleading: Identifying The Parties

In the "Parties" section of the complaint, you should identify each party's legal name, any known aliases, and their residences (just the county, not the actual address).  For a New York corporation, you can check their official name and address in the Department of State's online database.  Many other states have similar databases.

This section has several practical implications.  First, in New York, venue (i.e. what courthouse you go to) is usually based upon the residence of either of the parties.  If the venue is inconvenient for the defendant, the court may consider a transfer or dismissal based on "forum non-conveniens." Thus, if the defendant has a connection to the venue, this is an appropriate section to include allegations such as that the defendant "resides in," "maintains its principal office in," or "regularly conducts business in" a particular county.

Second, if your case is a business dispute, the type of business entity makes a difference. There are different rules governing the procedures for internal disputes between owners, and the owners' individual liability to third parties, depending on what type of business entity is involved (i.e., corporations, partnerships, limited liability companies, professional corporations, etc.).

Third, sometimes a party can be misnamed or listed as John/Jane Doe. Misnaming sometimes happens, for example, when dealing with corporate subsidiaries. There are also a variery of situations where a John Doe defendant is appropriate, although in my experience the designation is over used.

If there's enough information in the complaint describing the proper defendant, even if there was a mistake in the name, it can make a correction go more smoothly.  If the defendant had notice that it was the entity that should have been named, a later correction may "relate back" to the original pleading date, thereby avoiding statute of limitation problems.

<< Jurisdictional Statement || "Pleadings" Table of Contents || Facts Common to All Causes of Action >>

Drafting A Pleading: Facts Common To All Causes of Action

Generally, the facts in a complaint should be very simple assertions, with each individual factual statement contained in its own paragraph.  One fact per paragraph.  The reason for this is that the answering party only has so many options.  They can: admit; deny; deny knowledge or information sufficient to form a belief; or refer a question of law to the court.

The simpler your factual statements are, the harder they are to deny.  In making your statements simple, avoid adjectives and compound sentences, which only give the responding party more things to disagree with.  Using the disjunctive "or," such as "agent or employee," makes statements broader and more likely to be admitted. Similarly, any uncertaintly about a date should be qualified with "in or around" the Month, or "on or about" the date.

Of course, clarity comes first. One fact per paragraph is not always a hard-and-fast rule.  It is not improper to have narrative paragraphs that tell the underlying story. Such paragraphs can be helpful in explaining what actually happened.  When you write a paragraph like that, however, it can easily be denied.  Thus, you should also put in seperate one-fact paragraphs stating hard simple facts that, taken together, lead to the inferences found in the more complex statements.

Overall, the facts contained in the facts section are supposed to be things that demonstrate entitlement to the relief being requested.  Before deciding what facts to include, or how to phrase them, you need to understand the law that governs the claims you are making.

<< Parties  || "Pleadings" Table of Contents || Conditions Precedent >>

Drafting A Pleading: Conditions Precedent

In some cases, there are conditions precedent to starting a lawsuit.  Where applicable, the fact that you have completed these hurtles should get their own section within the complaint.  Some examples of conditions precedent include demand upon the board of directors in a shareholders derivative action, filing a notice of claim in an action against a municipality, and filing an EEOC or NYS Division of Human Rights complaint in an employment discrimination or harrassment suit. These requirements can be imposed by statute, or by contract, and will require a party exhaust their administrative remedies (i.e., complete an internal grievance or appeal procedure) prior to filing suit.  This requirement is fairly common in employment disputes, insurance disputes, and when dealing with government agencies.

<< Facts Common to All Causes of Action || "Pleadings" Table of Contents || Causes of Action >>

Drafting A Complaint: Causes of Action

A legal basis for relief is called a cause of action.  Sloppy complaints will list facts in this section, not properly label each cause of action, or not include the actual elements of each cause of action.

If you are suing someone, you need a basis.  Did they breach a contract, commit a tort, violate a statute? In the facts section, you described what happened, in the causes of action, you explain - in terms of the Law - why you are entitled to relief.

Each cause of action should be labeled.  By labeled, I don't mean just "first," "second," "third." Claims always arise under either a statute or an area of common law to which the Courts have assigned a name.  

If you think you are pleading a novel heretofore unrecognized cause of action, you are probably wrong. In the event you are correct, and you've come up with a never before seen legal theory,  the Court will probably dismiss your case and explain that you haven't pleaded a legally recognized cause of action. Even in the extremely rare situation where you are actually dealing with uncharted legal waters, the courts will still operate within certain legal frameworks based on precedent.  Where changes in society bring about new types of relationships, the conduct between those parties is still governed by either the common law of torts, a statute, a contract, equity, or some similar claim.

Most claims have "elements," meaning the items all of which must be proven to establish a claim.  In a Negligence action, for example, the elements are: duty, breach, causation, and damages. Other claims, especially equitable claims, rest on concepts like "fairness," where the court will weigh various factors, not all of which are required.  Asserting a cause of action, provided the facts are there to support it, is as simple as identifying each of these elements and linking them to the particular case.  When asserting a statutory cause of action, parrot the language of the statute.

Asserting causes of action also becomes more complicated when you are dealing with multiple plaintiffs or multiple defendants.  Each cause of action should designate which plaintiffs assert what that claim against which defendants. In a shareholder's derivative case, for example, the business owner may assert claims both individually and on behalf of the company, but the court won't accept such a hybrid complaint unless the individual and derivative claims are clearly distinguished.

As a general rule, you want to be over inclusive with the causes of actions asserted.  It is easier to drop a cause of action than it is to amend the complaint to add one.

<< Conditions Precedent || "Pleadings" Table of Contents || Demand For Relief >>

Drafting A Complaint: The Demand For Relief

WHEREFORE, this is where you tell the court what you are asking for. You are literally pleading for something.  Some jurisdictions follow an old rule of practice where the demand for relief begins, after the word "wherefore" in all caps, "Plaintiff prays the Court enter Judgment against" the defendant.  The more modern way to phrase it is "Plaintiff demands Judgment against" the defendant.  However you phrase it, the point is the same.  You need to specifically say what you want.  Are you looking for compensatory damages, statutory damages, punitive damages, injunctive relief, a declaratory judgment, attorneys fees, costs, interest?  If you don't put it in, you might not be able to claim it.

This section is organized in different ways for different cases.  Like the opening paragraph, it is not numbered. Sometimes, a single unified paragraph will work for the whole complaint.  Other times, each cause of action needs it's own damages paragraph, or there are seperate paragraphs for each defendent or each type of damages.  Overall, the point is that you clearly state which plaintiffs are seeking what relief against which defendants.

When dealing with compensatory damages, the rule was formerly that you had to demand a specific dollar amount.  A specific amount is no longer required, and the phrase ordinarily used is "in an amount that will fully and fairly compensate Plaintiffs for the damages they have suffered" or something similar.  A specific dollar amount is still used in actions such as collection matters, or other actions where a set amount is readily capable of calculation.  The advantage is that, in those cases, a default judgment can easily be entered for the amount demanded without the need for an inquest if the defendant doesn't answer.

Where damages are for pain and suffering, emotional distress, or other non-economic losses, however, you cannot avoid an inquest merely by putting a specific dollar amount.  Some practitioners still put a dollar amount in these cases, mostly for shock value.  By doing so, you are capping your damages, but the dollar amounts are usually so outrageosly high that it doesn't matter.

I am generally against putting a dollar amount where it is merely for shock value.  Unsophisticated defendants may be surprised, and media outlets will almost always state the dollar amount if you put one in, but if the number is meaningless then it only serves as a distraction.  At best, it is a meaningless number that draws attention to your case as something you deemed "serious" enough to put a large number on.  More likely, however, the number sounds outrageous, you are playing a role in proliferating the inaccurate view of an out-of-control legal system, and you may have made an otherwise meritorious case sound frivolous.  

<< Causes of Action || "Pleadings" Table of Contents" ||

Tuesday, November 23, 2010

Products Liability Case Discussed in NY Law Journal

Almost two and a half years ago, back in June 2008, I wrote a post about the de facto merger doctrine.  (Prior post here).  At the time, I was working on products liability case where the issue came up.  The case was hotly litigated.  Not only had the company gone through several incarnations since the manufacture, there were also issues of third-party alterations, warnings, and everything you could think of in a defective product case.  This Spring, the motions for summary judgment were litigated, and the Court found factual issues precluding summary judgment and permitted the case to go to trial.  You can read the decision, here.  Tonight, I'm reading through blog posts, and I come across an article on, from the New York Law Journal, discussing the case! The article is by Steven F. Napolitano and Peter Luneau, entitled "Determining Successor Liability."