chapter 8 pleadings civ lit 2nd

Civil Litigation:Process and Procedures

Chapter EightPleadings

Civil Litigation: Process and Procedures Goldman/Hughes

© 2009 Pearson Education, Upper Saddle River, NJ 07458.

All Rights Reserved.2

Pleadings Documents filed

With a court To commence Or respond to a lawsuit

Must conform to State or federal Rules of Civil

Procedure Local court rules Judges’ information sheets




Rules of Civil Procedure Insure that trials are conducted fairly

& produce a just result Federal, state & local Address:

Pleading, discovery & trial procedures Filing deadlines Document format




Statute of Limitations Time frame within a party must bring

a suit Fundamental fairness can extend the

time to begin with the discovery (knew or should have known) of the injury, rather than the date the injury was received.

May be extended for minors




Commencing a Suit Depending on the jurisdiction, an

action commences with a Complaint Writ of Summons Summons Petition Notice to Plead Cover or Case Designation sheet




Notice Pleading Federal & some state courts Must give notice of the event & the

claims arising from that event (short & plain statement)

The basis for the claim & damages will be more thoroughly identified during discovery




Fact Pleading Must state

Material fact on which the cause of action or defense is based

Averments of fraud or mistake Time, place & items of special damage Conditions precedent Jurisdiction

Must attach documents that form the basis of the claim




Notice v. Fact Pleading Notice pleading requires that enough

information be included to give the defendant notice of the events & claims against him

Fact pleading requires that all relevant facts & claims be included in the complaint




The Summons A federal summons can be

downloaded, copied & prepared It advises the defendant

Of the lawsuit The time within which a response must

be filed What will happen if there is no response How to obtain a lawyer




Summons Preparation Completed by the legal team The clerk of court adds the filing

information Case number Judge assigned

The return of service form is on the back

The summons & complaint are served, and the return of service is completed




Civil Cover Sheet Summary page used by data entry

personnel Names & addresses of the parties Counsel contact information Types of claims asserted Basis of jurisdiction Class action or related claims?




Drafting the Complaint Caption

Identity of the parties Jurisdiction & venue of the court Document title Docket Number provided by Clerk

Numbered paragraphs One fact per paragraph is ideal, but

difficult




Jurisdictional Claim Identify parties & situations enough

to establish personal jurisdiction Describe claim to establish subject

matter jurisdiction Jurisdictional limits on amount in

controversy vary Courts may be limited in the types of

claims they can hear (juvenile, probate)




Elements of the Cause of Action Each cause of action appears as a

separate count Each count need not plead elements

individually in a notice pleading jurisdiction

Each count must contain all the necessary elements in fact pleadings




Counts Counts will describe each separate

cause of action Complaints divided into counts for

clarity Case, if heard by court, will be

decided for each count




Damage Allegation Must claim harm

Personal physical injury Property damage Monetary losses

Out-of-pocket expenses Lost wages Loss of earning capacity




Prayer for Relief “Wherefore” clause Related to damages Asks the court for relief, based upon

the alleged harm“Wherefore the plaintiff demands judgment

against the defendant in a sum exceeding $75,000 plus interest, costs, attorney’s fees, and such other relief as the court deems reasonable.”




Unliquidated damages

Unliquidated damages are not calculable by mathematical calculation (pain and suffering)

In situations with unliquidated damages, some court rules will not permit including a specific amount (example: $12,000,000) in request




Signatures Attorney certification

Familiar with facts & claims Based on bona fide basis in law No improper purpose Facts have been investigated Believes the information to be true &

accurate Can be sanctioned for frivolous claims




Verification Client signature

Subject to perjury Client asserts the truthfulness of the

claims Not required in all jurisdictions




Filing Fees Must be paid with filing Vary by jurisdictions May be possible to file & pay online Indigent parties may seek waiver (in

forma pauperis) After-hours filing may be possible in

some jurisdictions




Electronic Filing Rules vary by jurisdiction Must submit materials in format

specified Word WordPerfect PDF, etc.

Both parties should consent to electronic filing where it is an option




Service of Process Insures due process: notice of the suit, an

opportunity to be heard Generally, service is performed by

An adult (frequently the sheriff) Not a party At recipient’s place of business or residence To an adult

Service is confirmed by affidavit Right to service can be waived




Calculating deadlines For a federal deadline of 20 days:

S M T W T F S

served

Begin count

2 3 4

5 6 7 8 9 10 11

12 13 14 15 16 17 18

19 Holiday

Due date




Amend or Supplement the Complaint New information after filing Correct or add material Before a responsive pleading, no

permission required After a responsive pleading, only

upon a motion granted by the court