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" ||

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 law.com, from the New York Law Journal, discussing the case! The article is by Steven F. Napolitano and Peter Luneau, entitled "Determining Successor Liability."

Personal Injury Attorney - Car Accident Appeal Decided by Second Circuit

I recently briefed and argued an appeal in the Second Circuit - the Federal appellate court - related to New York State's serious injury threshold. The District Court dismissed my client's car accident lawsuit on summary judgment (i.e., decided the case on papers without a trial).  The issue on appeal was whether there were triable questions of fact as to whether the plaintiff met New York's "serious injury" threshold.

Nearly all states have enacted a no-fault laws requiring that everyone maintain minimum car insurance, with both drivers' insurances guaranteeing that medical bills for anyone injured in an accident are paid (up to a certain limit).  Even where neither driver is insured, the statute creates a state-operates fund which effectively insures otherwise uninsured drivers up to $25,000.  

The trade-off for guaranteeing medical treatment and ensuring a responsible payor is that people cannot recover for their pain, suffering and emotional distress unless they are "seriously" injured, which is defined as death, a fracture, a significant limitation, a consequential limitation, or being unable to perform usual and customary activities for at least 90 of the first 180 days after the accident.  So-called "soft tissue" injuries are not enough for a lawsuit unless they fit into the  "significant limitation," "consequential limitation" or 90/180 categories. (NY Insurance Law 5102).  

In Luo v. Mikel, the plaintiff suffered a torn meniscus, had corrective surgery, and regularly attended physical therapy for three months.  Although the lower court dismissed the case, on appeal the Second Circuit reversed and found that there was a question of fact as to serious injury.  (You can read the decision at the Second Circuit website and Findlaw, and read coverage at the NY Daily Record).