Friday, January 6, 2012

4L: What to do when . . . You Write Your First Complaint

Welcome back folks!  Have you ever heard the saying, "The first [one] to plead his cause [seems] right, Until his neighbor comes and examines him"?  It's a proverb from about 700 B. C.  It still seems pretty relevant today too huh?

This proverb will be our guidance for drafting our first (and every other) complaint.  While we're drafting the intricate details of our complaint, remember that when your friendly "neighbor" of a lawyer comes and examines you, your petition may not seem as right as you'd like.  With that in mind, we can use two tools in our drafting approach.  I will focus on Missouri in some parts of the approach, but generally, this approach can be used for federal complaints. 

Some of this will be VERY elementary, so if you don't care about this move on down to "Drafting the Claims." For the neophytes, here are some considerations for drafting:

Caption - I'm not very good with Microsoft Word, so I don't know how to create two separate panels in which to type while keeping the ")" from moving all over the place. Frankly, it takes too much time for me to return the close parens back to the center.

At at the beginning of my short career, I was working with a brilliant 32 year solo-practitioner, Larry Bratvold, and looking over his pleadings.  I noticed that he did not have close parens, but a straight line right down the middle of the caption.  He simply inserted a line from the shapes box and doesn't have to mess with the ")".  When his caption is longer, he stretches the line.  If it is shorter, he shrinks it.  Now I do that too, and it has saved me time AND frustration.

Title - If you're having trouble thinking of a title for the complaint, determine what you're asking. Some attorney's use things like Plaintiff's Complaint Asserting Defendant's Products Liability. Why not just say: "Complaint for Products Liability", or "Complaint Seeking Injunction"? Just say what your doing, don't make it too hard.

Introduction - I'm sure you're probably freaking out because you don't know how to word your opening sentence for the pleading.  To be honest, it doesn't matter as much as you think it does, but I'll give you an example that you can cut and paste from here:

COMES NOW, [insert Plaintiff's name(s)], Plaintiff(s), by and through his/her/their attorney, [insert your name], and for their Complaint [insert your complaint title here] allege(s), aver(s), and state(s) the following:

Remember that ONE person allegeS, averS, and stateS and many people allege, aver, and state!

Complaint Headings - Depending on your jurisdiction, you may want to set out separate headings that outline the parties, jurisdiction, background facts, or procedural history.  These should be centered and underlined.  I recommend using these headings






Body - For each sentence or thought, use a separate number:

                1.       Defendant is a foreign for-profit Delaware corporation doing business in Jackson County at 1234 Main Street, Kansas City, MO 64106.  Defendant's registered agent may be found at: Bilbo Baggins, 15 Bag End, Shire, Middle Earth.  Defendant is an employer as defined by 29 U.S.C. 630(b) and has employed Plaintiff at all times relevant to this action.
                2.        Defendant hired Plaintiff on ______.
. . . and so on.

Signature Block - When you're submitting any thing to the court you should sign off with "Respectfully Submitted."  Check your jurisdiction for the information needed in the signature block, but Missouri requires: "[C]urrent mailing addresses, telephone numbers, facsimile numbers, electronic addresses, and Missouri bar numbers, if any." Rule 43.01(c). 

Now that we got some nuts and bolts out of the way.

Drafting the Claims - The other stuff is kinda important to make you feel warm and fuzzy inside when you submit the complaint.  The following stuff is of utmost importance to make sure you win the case, or at least don't get dismissed.  Drafting the claims is not as hard as you may think (or as hard as everyone seems to make it).  Just make sure you plead the elements of your claim.  That's it! No really, that's it.

Missouri is a fact pleading state.  This means that we must plead enough facts to substantiate our claim.  If your jurisdiction is not a fact pleading forum, consider doing it anyway.  The reason? Because you're reading what I'm writing and I recommend it.  No, seriously, pleading the facts gives you a method to actually plead the elements of your claims. 

1. Jury Instructions - Missouri has the Missouri Approved Jury Instructions (MAI) that should guide a Missouri attorney's complaint drafting (in Missouri we call them "Petitions."  Aren't we special?).  Rich McLeod, a very experienced attorney, who happens to be the Missouri Supreme Court  Reporter for the Committee that writes the MAI, recommends allowing the MAI to guide not only jury instructions drafting but also petition drafting.

If you know you're going to be using that verdict director for the jury, then you already know the elements you must plead.  For a negligence case, you know you have to satisfy "Duty, Breach, Causation, Damages."  So use factually based sentences that satisfy the claim.  For instance:

      1.     Defendant owns a retail business open to the public between the hours of 10 a. m. and 9 p. m.  (business owner's duty to make safe is now implied because of the fact).

     2.     Defendant failed to make safe the icy parking lot after the ice storm on Jan. 4. (breach is implied because the storm made the Defendant aware of the danger, failed to make it safe, and Plaintiff was harmed).

     3.     Plaintiff was walking on Defendant's premises during business hours to shop.  Plaintiff slipped and broke his neck, collarbone, pinky finger, big-toe, shoulder-meat, and buttocks. (causation implied from plaintiff falling on unsafe icy conditions).

     4.     Plaintiff suffered eleventy million dollars ($11,000,000.00) of medical bills from the fall on Defendant's premises.

2. CaseLaw - This is almost identical to the above tool, but this comes from the caselaw.  Research the elements of your claim and determine what the courts look for in your case.  If you have an employment discrimination case, the elements come from McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973).  The prima facie case for discrimination is 1) the plaintiff/employee was in a protected class, 2) the plaintiff/employee suffered an adverse employment action, and 3) discrimination is likely the reason for the adverse action. 

So break down your petition with facts that support each element.  1) Employee is a woman, 2) the employee was fired on Oct 21, 1909, 3) employee was told women are not good workers, especially when pregnant. 

Why go through this painstaking process?  Because you will get a motion for dismissal based on a Failure to State a Claim Upon Which Relief Can Be Granted (12(b)(5).  When this is submitted, the judge can see that your pleading claims the elements perfectly,  and thus relief CAN be granted. 

And because you will inevitably get a summary judgment motion.  And even though you can't use your pleadings to rebuff the summary judgement motion, you can use affidavits that reiterate the elements you pled, based on the facts that the affidavit must contain.

Remember, don't make this harder than it has to be.  But also remember, to make it as professional as it should be.  And don't forget to remember that a good pleading is only as good as the claims pled.  Lastly, make sure you also remember a good pleading will still seem right when a neighbor comes and examines it.   

1 comment:

  1. Thanks for the plug, Jonathan. I'm actually the former Reporter for the MAI committee.
    As for captions, here's an even easier way - use a 2 column, 1 row table, with a border on the left side of the right cell. Easy, and it will expand as the cells get bigger as you add more parties to the left cell.