A Paralegal's Guide to Pleadings, Motions, Discovery Requests and Briefs

hi my name is Heather Neal I am a partner with the law firm of Renault Cook Drury Meszaros in Phoenix Arizona my specialty is med mal medical malpractice defense I've been with the firm for about ten years and prior to that I did a little bit of plaintiffs work so today we're going to talk to you or at least I'm going to start talking to you about civil pleadings and motions so let's go ahead and start so first we're going to start out with kind of an overview of process and procedures with respect to drafting civil pleadings the first thing that you want to consider when you are drafting a pleading is whether or not you're in federal or state court because that's going to depend on what kind of rules of procedure you're going to consider obviously if you're in state court the civil procedures of your particular state are going to apply and be your guide when you are sitting down to draft that pleading if you are in federal court obviously the federal civil rules of procedure are going to control and today when we talk about these different rules and pleadings emotions etc I'm going to be referring to the Federal Rules of Civil Procedure for a couple of reasons number one I practice in the state of Arizona so I tend to focus on most of my litigations in state court I don't want to focus on one particular state which mine would be Arizona so I'm going to try to refer to Federal Rules of Civil Procedure and the other reason I do that is because most of the states have adopted some form of the Federal Rules of Civil Procedure with respect to their own state rules so it's kind of a nice guideline to to look at when we're talking about a national standard the other thing that I think a lot of people don't consider when they are drafting a pleading or the local rules there are local rules for both state courts and federal courts which you will find nowadays you can find them online you can go to a Westlaw or LexisNexis what-have-you you can also just go on and google rulz you can probably find it for free but a lot of the local rules will tell you specific requirements that you need to follow with respect to that particular local jurisdiction so don't overlook those whether or not you're in state court or you're in federal court you also want to consider other applicable rules and statutes and what I mean by that is when you identify your cause of action there is going to be some kind of basis for that cause of action whether it be a statute a rule and if you are considering that you need to look at the specific statutes to see what requirements may be there when you are sitting down to draft that pleading and what I like to use since I do medical malpractice I'll use a med mal statute for instance in Arizona there's a medical malpractice statute that specifically states what the requirements are to file a medical malpractice claim what you have to prove so for instance if I'm going to sit down and draft a complaint which we'll talk about here in a little bit I want to make sure that I know what that statute specifically says and what I have to prove in order to make sure that all of that information is in my complaint because if I don't do that then it could potentially be dismissed via a dispositive motion which we'll also talk about in a little bit another thing to consider our regulations and again I will use a medical malpractice reference if there's a regulation for instance a physician physicians are regulated by regulations in the state of Arizona as many other states are I want to make sure that if there's a particular regulation that I'm arguing was not met that that information is in my complaint or vice-versa if I'm filing my answer I want to look at that regulation to see if the requirements were met so that I know what to put in my answer so those are the kinds of things that when you are sitting down and identifying your cause of action these are the kinds of things that you want to look at before you file your pleading again read the statutes and the regulations to determine whether or not there might be additional requirements that may apply the one thing I think a lot of people also overlooked are the comments when you read the rules and some statutes even regulations once you read through it they're often they're comments that go along with that and that can really be a nugget of really good information to give you some background about maybe why the rule was enacted what the purpose was and that is something else that you can add to your pleading or motion if that's what you're drafting to bolster your position so don't overlook those comments because sometimes you can find some really good stuff in there so let's talk about pleading standards and what I mean by pleading standards is what do I need to do to make sure that it complies with the rules again you want to consider your applicable standards depending on what pleading you're drafting are you looking at a rule are you looking at a statute are you looking at a regulation that's going to depend on what standard you're going to use the one rule that is very important is rule 11 and rule 11 has to do with signing pleadings motions and other papers and representations to the court and what I mean by representations to the court is that everything that you file everything that you submit to the court or tribunal you may see that term used in some of the rules is a representation to the court and ethically everything that you represent to the court should be based on a good faith basis and Jim's going to talk more about the ethics portion here in a little bit but I want wanted to bring up rule 11 initially because that should be the first thing that you think of before filing your pleading so if you are in a plainness firm and you are going to file a complaint the first thing that you should think of before you file that pleading is do I have a good faith basis to file this complaint have I done my due diligence to find out whether or not indeed a cause of action may exist the rule 11 basically says that everything you submit to the court to the tribunal must be in good faith and if it's not there can be sanctions involved and I haven't put the entire language of rule 11 here in the PowerPoint but the one section that I think is very important to remember and I've quoted it here it says the court may impose an appropriate sanction on any attorney law firm or party that violated the rule and I think that's very important to remember because not only does it affect the attorney it can affect a paralegal it can affect somebody else in the law firm anybody that may have had part in contributing to this non good-faith basis so to speak the other thing that I think is really important to remember is it could also apply to a party a party defendant a party plaintiff and what I mean by that is if you know that your client has provided you with inaccurate information yet you use that information and you file a pleading not only could you be in trouble but your client could be in trouble and when I talk about sanctions it could be a monetary sanction it could be a sanction that involves getting depleting struck so there are a lot of different sanctions that can go with violation of this rule so it's a very important rule to consider not only for the from the sanctions standpoint but also from ethical standpoint you know you could have your attorney could have a bar complaint against them so there are a lot of different things that go along with this so long story short if you are on the plaintiff side make sure you do your due diligence in filing that pleading filing that complaint and on the other hand if you're filing an answer or you're responding to the complaint make sure that you have the appropriate information to whether or not deny the allegations or set forth additional allegations in your answer alright let's talk some more about pleading standards another rule that you should consider before sitting down and filing drafting that complaint filing the pleading is rule 8 of the Federal Rules of Civil Procedure and this just talks really about the general rules of a pleading one of the things that you should remember and this actually goes not only for pleading but I think most motions as well which we'll talk about in a little bit but there are three things that are pleading must contain and this is summarized in rule 8 of the Federal Rules of Civil Procedure number one it must contain a short and plain statement of the grounds for the court's jurisdiction unless that court already has jurisdiction so essentially what that means is when you are drafting I'll just take a complaint for example and in your materials there are some examples of different pleadings which I will probably refer to in these next couple of slides I think it'll be a good reference for you in going through some of this so you might want to have those out handy because I'll probably be flipping back and forth so with respect to the first the short and plain statement one of the good references I think in the materials is the complaint there should be a complaint in here and I think a really good example of the court's jurisdiction is on page one of that sample complaint so if you want to just flip to that I'll give you a few minutes here a few seconds to do that on the first page of your sample complaint you will see there are numbered paragraphs 1 2 3 4 the first and let me kind of give you a little bit of background of what this involves so you know what you're looking at here the names have been redacted as you can see so it's a little bit difficult to read but it'll give you the flavor of what I'm talking about this particular complaint had to do with a breach of contract action so it's a collections action it involved the plaintiff was a nursing home they filed a complaint against a former resident for a balance an outstanding balance for the services that were rendered to that particular resident so if you look at the first couple of paragraphs the first one identifies that the plaintiff is an Arizona Corporation the second is that the defendant is a resident of Maricopa County number three it just simply states that jurisdiction is proper and number four that venue is proper so those are short and plain statements to identify to the court that yes this Court has jurisdiction so that's a good example of the jurisdiction requirement the next thing that a pleading should contain is a short and plain statement of the claim showing that the Pleader is entitled to relief and what I mean by that is what number one and we'll talk about this in a little bit you should eliminate wordiness in your pleadings you want to make sure that everything is short and plain and concise so that the judge or whoever is looking at the pleading or the motion understands what you are setting forth and what you're asking for so again if we go to the complaint on page three of your sample complaint there's a good example of this so if you want to go to page three you're going to have to provide some background and this goes for all pleadings in motion so that whoever's reading your pleading or motion understands where you're coming from so you're going to have to have some background so if you look at some of these paragraphs between maybe six and eighteen of the complaint that's really background information so that the judge understands exactly where you're coming from what your position is but if you look at paragraph 19 it reads defendant has unreasonably refused to perform their obligations as detailed above and is in breach of the aforementioned contract that is a short and plain statement of the claim in other words defendant breached the contract so that is a short and concise statement of what the claim is in this case so that's a good example of the second requirement finally the third requirement that a pleading must have is a demand for the relief sought which may include relief in the alternative or different types of relief so going back to your sample complaint it's the very last paragraph on page 3 and it starts with where for plaintiff demands judgment by this court in its favor and against defendant in X amount so that's your prayer for relief you're telling the court what you want and you want to make sure that that's concise because the court doesn't have a lot of time to read all of these motions and pleadings so they want to go right to the meat and they want to know what you want so make sure that that's very clear and concise and here in this sample complaint is specifically sets forth forth the amount that they're seeking and what kind of relief they're seeking alternative relief is something where you can ask for one thing but in the alternative you can ask for another so for instance you can ask for the relief that you want from the court but if you think that maybe the courts not going to buy it you can then put an alternative request relief in there so in other words hey court this is what I want but if you're not willing to give it to me I want this relief instead so you can plead in the alternative and that and that's what that means the next rule to consider when you are pleading or preparing pleading is pleading special matters and special matters has to do with very particular causes of action that require a heightened pleading standard so I have and these probably aren't all of them but if you look at rule 9 it will set forth all the different ones I think I have most of them on here for you so I want to go through them and talk to you about them just briefly to give you a flavor of what might consist of a pleading a special matter so the first one is pleading fraud or mistake the requirement under rule 9 states that you have to state your allegations with particularity probably the most common pleading or cause of action for fraud or mistake that I see in my practice is fraudulently inducing someone to enter into a contract or if somebody entered into a contract by mistake or didn't understand one of the terms that would be a really good example of a cause of action for fraud or mistake if you have something like that you have to state the allegations with particularity and it also depends on whether or not your state is a fact pleading state or a notice pleading state which we'll talk about in a little bit but regardless if you have that cause of action make sure that you state your allegations with particularity in your complaint the next one is conditions precedent and basically what that means is if you are alleging something had to happen before something else that's a condition precedent and it's a little confusing so I think a good example would be if you have a contractor come to your house and you say okay contractor I want you to fix my roof and if you do that I will agree to pay for the repairs that would be a condition precedent the roofer has to fix it per your terms before he gets paid that would be a condition precedent in rule 9 it states that you can state generally if you are pleading that allegation but if you're denying it then you have to deny it with specificity so for instance if the contractor sued me for an unpaid amount I would if I denied that I would have to deny it with specificity so for instance I might say well yeah he did the work but he didn't do a good job he used the wrong materials and he didn't come when he said he was going to come that would be denying it in with specificity so that's just kind of a crude example of what that means official document or act you can state generally that the document was a legally binding document or that the act was legally performed you don't have to allege that with specificity for instance if you are you know alleging that a contract was legally binding you can probably do that or if you are saying that something was notarized maybe a document was notarized that would be an act that was legally performed you don't have to state with specificity on those kinds of things judgment you can state generally without showing jurisdiction to render the judgment and I think a really good example of this would be if you are trying to enforce a judgment a foreign judgment from another state and we do that quite often in our state you can stay in the application that the judgment was legally binding or that it was enforceable if from another state you don't have to show that that state had jurisdiction to actually enter the judgment so I think that's probably a good example of that one time and place if it's a material fact then you need to state it with specificity and the one thing that comes to my mind in time and place I used to do some plaintiffs work in Myrtle Beach which is a very big tourist attraction we'd have tourists come in and get into motor vehicle accidents all the especially in the summer and so we would file complaints if it's a material fact which usually is in a motor vehicle accident you need to state the time in place when it happened where it happened so that's probably a good example of that and then finally special damages this is going to be very state specific depending on what kind of you know cause of action you have some causes of action will have special damages that attach to it if you do then you need to state those with specificity okay let's talk about formatting requirements rule 10 I think is a very good rule to look at when you are considering formatting requirements because it talks about the form of the pleading and again this is federal rules so make sure that you check your states with specific formatting requirements that they may have but in general every pleading must have a caption with the courts name the title the file number and a rule 7 8 designation and what I mean by rule 7 8 designation is there are only certain pleadings that are allowed to be filed in a complaint and answer counterclaim cross-claim 7a and rule 7a will designate that so when you have your title in your caption you want to put up there what it is is that a complaint is it an answer cross claim etc and again I think if you have your materials in front of you we have an answer that we've included in here and if you flip to the answer you can see it's I think a good example of what's required under Rule 10 if you look at the very first page of that answer you can see in the Superior Court of the state of Arizona in and for the County of Maricopa that's the court that we're filing in you see the cause number there on the right-hand side you see what the pleading is its answer to plaintiffs complaint and you've got the parties there on the left side even though they're black there there so that would be a good example of what the caption is supposed to look like and again check your state with any particular requirements that they may have another requirement under Rule 10 is that there must be paragraphs in separate statements for each allegation or each answer that you are pleading every party must state claims or defenses in numbered paragraphs and not only is that a requirement but it makes it easier to follow along because if you are answering a complaint you want to make sure that your answers correspond with the paragraphs of the complaint so it just it makes it easier it makes it a better read and easier read adoption by reference this is used quite often if you especially if you have a very lengthy answer or even in a complaint but adoption by reference is basically a statement in a pleading that may be adopted by reference elsewhere in the same pleading and there's a good example of this it's kind of hard to describe without seeing an example of it and in your materials I have included a sample counterclaim and and don't worry we're going to talk about what all of these different pleadings are but as I go through this I think it's helpful to give you some examples of these things but if you look on page four of your counterclaim the sample counterclaim there is a reference to that if you go to page four if you look at paragraph number 25 it says that Thomas who is the defendant in the case Rhea ledges and adopts all of the matters contained in the foregoing paragraphs of this answer and one of the nice things and why we do that is that way we don't have to reiterate everything that we just said in the last three or four pages we have now adopted that by reference so everything going forward is now included so it's just kind of a nice shortcut way to make sure that everything is incorporated you want to make sure and I keep pounding this but I want to make sure that you understand that the local rules also have additional requirements about formatting so make sure that you check those because it will probably give you things like font sizes margin requirements spacing all of those different things that the judges in that particular jurisdiction will want I have seen pleadings Believe It or Not rejected because the formatting requirements were not followed so make sure because that's the last thing you want to do is spend all this time drafting a pleading getting it filed and then having it be rejected for some formatting requirement a lot of new computer programs now actually have a feature where you can take those requirements and plug them in so it's kind of nice every time you go to your pleading format it's all going to be ready for you so you don't have to worry oh gosh what's that margin sighs again so I would look into that if you don't have it already at your firm or at your office all right so complaint dismissal for insufficient pleading so now we are talking about we're going to get into a little bit of motion practice here even though we're so in the pleading phase of our presentation but what you want to look at when you are considering a dismissal for insufficient pleading is rule 12 rule 12 is the rule that you're going to look at for except for a motion for summary judgment dispositive motion so a motion to dismiss rule 12 is going to be your rule that you want to look under now there are a lot of different bases upon which you could file a motion to dismiss for insufficient pleadings this could include things like failure to plead with specificity so just like we talked about when you have the special causes of action where you have to plead with specificity if you don't do that a motion to dismiss could potentially get rid of that get rid of that complaint or that cause of action a failure to state a claim that's probably the most common motion to dismiss that is filed well we'll talk about that a little bit failure to establish jurisdiction just like we talked about earlier when we looked in that complaint and we looked at the paragraphs that established jurisdiction if jurisdiction is not established or it's not proper that can be a basis for a motion to dismiss failure to show why a party is entitled to relief as we discussed earlier that was one of those requirements that the pleadings are required to have is why the party is entitled to relief what's the prayer for relief if that's not contained in the pleading it could be dismissed via a motion to dismiss or again failure to request relief just like we talked about so rule 12 B 6 probably the most common rule or the common basis upon which to file a motion to dismiss failure to state a claim upon which relief can be granted that sounds very menacing and very confusing but basically if there is not sufficient evidence or allegations in the pleading upon which whatever claim you're trying to prove if there's not enough in there then it can be dismissed via 12 B 6 motion and sometimes you'll hear that instead of a motion to dismiss you might hear a 12 B 6 motion that they're the same thing we're going to talk about this later but a motion to dismiss should not be confused with a motion for summary judgment they are two different motions even though they have the same purpose to get rid of the claim in a motion to dismiss it is based purely on legal standards and legal information whereas a motion for summary judgment considers the facts and we'll talk about that later but before we go forward I don't want you to confuse the two there are two separate things rule 12 II talks about a motion for a more definite statement this I think I don't see it very often I see it more in commercial litigation as I do in medical malpractice but basically what that means is if you get a complaint and you're sitting down to draft the answer and there's it's not clear or there's not enough information and you're thinking I can't possibly answer this because there's not enough information for me here to file my answer you can file a motion for a more definite statement and ask the court to enforce the plaintiff or whoever is filing the claim to make that statement more definite so you have enough information to actually answer it in the alternative sometimes I've seen it done where somebody will file a motion for a more definite statement and in the alternative a motion to dismiss so if plaintiff or whoever signing a claim if you cannot make it more definite then there's not enough information here so it must be dismissed so I've seen it in the alternative and then 12 F rule 12 F motion to strike you can use the motion to strike in a lot of different instances but in this particular instance what we're talking about with respect to pleadings typically is if there's improper allegations in the complaint I have seen it where you somebody has filed a motion to strike those improper allegations I have seen a motion to strike an entire pleading because it doesn't conform with the requirements there going to be a lot of different reasons why you file a motion to strike but the one thing to consider and I would keep this in mind if you get a complaint and there are improper allegations and when I say that I mean technically in a complaint you are supposed to allege the causes of action as opposed to just reiterating information and a good example of this would be like medical records so medical malpractice complaint if the plaintiff has just literally taken medical records and thrown information into a complaint that just reiterates information in medical record and doesn't actually allege anything those are improper statements and they really shouldn't be contained in a complaint so oftentimes I will file a motion to strike that information and why do I do that it probably doesn't matter in the short term but it could matter in the long term because everything that you file with the court is now a part of the record it is part of the official record so let's just say that there's some dispute about something that's in the medical record if I didn't file my motion to strike that at the very beginning of the case it is now in the record and if I go and file a motion or I argue that that's not accurate or consistent then very likely if I'm the plaintiff's attorney I'm going to come back and say well she had no problem with it when I filed the complaint in the first place and so now you've got inconsistent theories so you know you have to think about things even though it might be a short-term issue you have to think about the big pick sure and you have to think about what the long-term effects could be down the road so just keep that in mind and that really goes for for anything any kind of discovery which I think Jim's going to talk about later any other pleadings that you might file with the court make sure that your positions are consistent because if they're not they're going to come back and get thrown in your face more than likely later down the line okay so let's talk about the differences between some different pleadings the complaint the demurrer answer cross complaint and counterclaim so to make it easy a complaint initiates the action and I have included as we've talked about before here today I've included a sample complaint in the materials for you to take a look at and I think we already talked about what it was but just to give you some background again it was a breach of contract complaint that was filed a collection that action essentially so I won't go through we don't have time to go through all of these pleadings but take a good look at it I think it's a very simple a sample complaint that gives you a good guideline of what needs to be included now this is a very simple claim it contains one claim you can have complaints that contain many causes of action I've seen some that contain up to twelve causes of action so you know that that's just a very simple complaint for you to look at but obviously it can be more involved if you have a very complex case a demurrer is not commonly used in a lot of states the one state that I have seen it still prevalent is state of California essentially a demurrer is kind of an older version of a motion to dismiss and it's only used in very in only certain jurisdictions essentially what a demurrer is basically what you are saying to the court that okay I've got the plaintiffs complaint and I'm going to assume that even if the facts are all true as alleged in the complaint there is still no legal basis for this lawsuit and we shouldn't have to proceed court so before we even file an answer we want you to take a look at the sufficiency of the plaintiffs complaint that's essentially what a demurrer is a lot of states have now gone away from the Jim Muir and now they just go to a 12 B 6 the motion to dismiss I have included a copy and I will I will come clean I actually got this off the internet because we don't do juniors in Arizona this is the demurrer that I have included in your materials is a copy from the Superior Court of California County of Los Angeles and it's actually a pretty lengthy one but if you look through it you will see a lot of similarities to a motion to dismiss it's just a little bit different and again I don't think a lot of jurisdictions use the demurrer anymore but the sample in your materials what least give you a good idea of what it consists of an answer is a responsive pleading to a complaint or claim and the one thing that you have to keep in mind is sometimes you may not want to file an answer right away as we talked about earlier if there are jurisdiction issues if there are other bases upon which you can file a motion to dismiss the complaint or other issues and obviously want to consult with your attorney about this but you may not want to file an answer right away or you could waive a jurisdiction you could waive your jurisdiction defense so a good example of this would be let's just say that the complaint is filed and there's a lack of subject matter jurisdiction or personal jurisdiction before I file my answer I may want to try to file a motion to dismiss and argue that the court doesn't have jurisdiction and then say something to the effect of without waiving our jurisdiction defense you know I'm filing this motion to dismiss or you know potentially change jurisdiction or venue or what-have-you but in any event make sure that before you file your answer there aren't any basis to file a motion to dismiss first the other thing to keep in mind when you are filing your answer is affirmative defenses and what I mean by that there are certain defenses that you must include in your initial response of pleading or they are waived forever and what I typically do is you know two years down the road you may think of a defense or there might be evidence that comes forth to suggest that an affirmative defense should apply so what what I typically do you know when you're filing your answer you may not know what's going to happen two years down the road so what I typically do is include all of my affirmative defenses in my answer just to make sure because I don't want any of those to be waived and there is a list of affirmative defenses actually if you look at the answer in your packet materials here there's a good example of what I mean by that and it's at the very last couple of pages this answer just so you know was a medical malpractice action and the plaintiffs were husband and wife we represented an acute rehab facility and this the med mal action was the allegation at least was an overdose of a particular medication so that gives you some background but if you look at the last couple of pages it will include our affirmative defenses and on page five and six specifically so paragraph ten is a great example basically what I say is any additional affirmative defenses that are set forth in rule eight or twelve so in instance you know I'm basically saying I'm reserving my right to argue any affirmative defenses down the line if I have to sometimes the plaintiff's attorney will come back and say hey you can't just stick everything in there you need to make it more specific but I haven't really dealt with that issue in a long time so what I would suggest is include every affirmative defenses that you can imagine because you don't want to waive those a cross-complaint and in lost boy was head I don't know why I had a problem with this between cross complaint and counter complaint but I think I've come up with something how to remember this a cross-complaint initiates the cause of action against a co-defendant and so I think to differentiate the difference between a cross-complaint and a counterclaim I think about playing tennis like a doubles match a cross-complaint is the player across from you so it would be my my partner playing doubles a counterclaim initiates a cause of action against the opposing party so my counterpart on the other side of the net would be a counterclaim that's I just came up with that how to remember it and I've never forgotten it so hopefully that will help you but counterclaim just remember counterclaim is opposite and cross-claim is cross from you so if you have a cross claim against your co-defendant a good example would be and I think we have one in here a cross-complaint and actually I think the cross complaint a cross claim that we have in here has to do with indemnification if I if I'm remembering correctly right so in the example for the for the cross claim here we that one of the defendants filed a cross claim against a co-defendant for indemnification and we'll go through this a little bit later but that's a good example of what a cross claim would be a counterclaim is and I think we also have a copy of a counterclaim in here an example we do counterclaims I see and I don't see a lot of it in medical malpractice actions but where I see counterclaims most often or like in commercial litigation so if you have a if a plaintiff files a breach of contract claim against defendant the defendant may file a counterclaim for a breach of contract that's probably the most common counterclaim I see the example of the counterclaim that we have in this case has to do with well actually there was a counterclaim for breach of contract plus some other things tortious interference of a contractual relationship consumer fraud and some other things so that's a good example of what a counterclaim would look like the one thing about counterclaims and I won't get into it too much there are two types of counterclaims permissive and compulsory compulsory means that the counterclaim is arising from the same set of or the same transaction or occurrence that gives rise to the initial claim so a good example of a compulsory counterclaim would be the one we just talked about if somebody files a breach of contract action against defendant and then defendant files counterclaim for a breach of contract out of the same contract that would be arising out of the same transaction or occurrence a permissive counterclaim would be it arises from an event that is unrelated to the matter that gives rise to the initial complaint so permissive counterclaims sometimes you need to get the court's permission to file that counterclaim and a good example of a permissive counterclaim would be if I was the homeowner somebody came and was walking up to my door and slipped on a roller skate that was still outside and fell and broke their leg but the man who broke his leg owed me money and so he Sue's me for negligence then I sue him for the unpaid balance on this money that he owes me so that's not really rising out of the initial occurrence it's something completely different it's completely unrelated to him falling on the roller skate outside of my house so that would be an example of a permissive counterclaim the one thing to remember too about counterclaims the counterclaim is only going to be valid if it's possible to make that same claim by initiating a lawsuit so for instance if I do a counterclaim but the statute of limitations has run on my counterclaim it's not going to be valid because it wouldn't be valid if I filed it to initiate a cause of action it would be it would violate the statute of limitations so just because there might be a counterclaim look at the other requirements because it may not be valid all right drafting the pleating first you want to consider who the parties involved you may have the plaintiff the defendant you can have Co plaintiffs co-defendants personal representative statutory beneficiaries which can be tricky we'll talk about that a guardian ad litem or conservator those are just examples of who parties may be statutory beneficiaries one thing to keep in mind if you are filing a claim on behalf of a decedent you have to have a personal representative of that estate who can file things they have to have capacity to actually represent the estate so you need a PR appointed if there are statutory beneficiaries you need to look into that and what I mean by that is the decedent may have a spouse children people who are entitled per statute to receive benefits if there's money obtained from the judgment you want to do your due diligence to identify any potential statutory beneficiaries and make sure that they want to be part of that claim if they don't want to be part of that claim you have to get that in writing but make sure that you do that because if you don't you could potentially miss a claim for statutory beneficiary and they could come back against you or your firm or your attorney later saying hey where's my money I wasn't included in this lawsuit so make sure that you would identify statutory beneficiaries find them notify them of the claim and make sure that they want to be part or don't want to be part of the claim a guardian I'm conservator they're kind of the same things but not exactly a conservator typically is appointed by the court and manages and protects the financial affairs of somebody who is incapacitated a guardian or guardian ad litem has legal authority to care both for the personal care of the person and their property so those are both appointed by the court they both have to have hearings to be appointed by the court but those could be potential parties to a lawsuit the one thing to consider when you are considering parties especially defendants if you are naming a bunch of defendants in a case is whether or not it will affect your jurisdiction you know if you're in state court and you're naming a bunch of defendants especially out of state defendants you know you might get that removed to federal court so if you want to go to federal court make sure you're you know considering who you're naming as a defendant so there are just a lot of other additional issues you want to consider when you're determining who you're going to make a party to the lawsuit again a Content language all pleadings are going to require those short and plain statements of the claim or defense and the statement of the relief sought the fact pleading this is what we talked about earlier or I referenced earlier check your particular state because I don't have all of the different states who do fact pleading vs. notice pleading but there are differences and there are different requirements for each state if you are a fact pleading state that's a more strict requirement and basically what that means is that you're pleading must include all the facts needed to back up all of your allegations so in other words you have to be very specific and include all the facts in your initial pleading notice pleading is a more relaxed standard and in 1938 the Federal Rules of Civil Procedure adopted the notice pleading step requirements most states I believe are notice pleading jurisdictions I know there are a couple of states for sure I know aren't Louisiana and Illinois I know are still fact pleading states Arizona is a notice pleading state which basically means you just have to notify the defendant or the other party the general issues in the case the general allegations you don't have to get very specific you just have to put them on notice that hey I have a claim and this is generally is what it's about this is also going to determine whether or not you're a fact pleading state or notice pleading jurisdiction how much specificity you really need to get into when you're asserting a cause of action so check your state figure out if you are a fact pleading or notice pleading jurisdiction okay considering the facts proving the facts you want to assert all of the relevant facts that give rise to the cause of action depending on whether or not your notice or fact pleading is going to depend on the specificity and volume of what you include in your initial pleading the one thing that you can you can include in your initial pleadings supportive research and case law citations it's not required typically an initial pleading or responsive pleading however I have seen it done and sometimes it helps sometimes judges like that the one thing to consider though going back to that rule 11 rule make sure that you have that good-faith basis to file your pleadings so do your research look up the case law make sure you have a valid cause of action or grounds for a cause of action before you file it but you don't necessarily have to include it in your initial pleading I put in here authoritative research versus persuasive Authority so authoritative research basically or case law is case law that is set by your jurisdiction that's authoritative the lower courts have to follow that or require to follow that persuasive Authority may be cases from other states other jurisdictions that says hey this is how you know Illinois is doing it I think Arizona we should do it like Illinois that would be considered persuasive so in other words it might be persuasive to the judge but the judge doesn't necessarily have to follow that rule and again cite cases in your just jurisdiction as opposed to others because they're going to be stronger and I do have in here if you want to see examples of that refer to the the sample of the motion to dismiss that is contained in your materials you will see some good examples of that all right so let's talk about sufficiency of the complaint we touched on this a little bit earlier today about rule 12 your relief that you are going to be looking for to attack the sufficiency of the complaint will be contained in rule 12 so let's talk about the different ways you can attack the complaint number one is lack of subject matter jurisdiction subject matter jurisdiction essentially means does this court you have to ask yourself does this court have jurisdiction over this particular subject matter that I'm filing my complaint on or responding to a good example would be if you are dealing with a bankruptcy issue you obviously are not going to be filing something in state court that's the state court doesn't have that jurisdiction you're going to be going to the Bankruptcy Court that's a very crude example of subject matter jurisdiction but you have to consider what the subject matter is and what court you should be filing it in if you're in the wrong court and you're answering then you can potentially attack the sufficiency of the complaint and say court you don't have jurisdiction to hear this matter therefore it should be dismissed lack of personal jurisdiction is a little bit different so we're not talking about the subject matter we're talking about the parties whether or not the court has jurisdiction over that particular party or if it's corporation over that company I think a good example of this would be if a plaintiff filed a complaint against will just use a corporation against a corporation a company that doesn't do business in Arizona doesn't have a building in Arizona doesn't have any kind of contacts to Arizona if I was in that position and the plaintiff filed that and that company was my client I would office I would file a motion to dismiss saying that there's no personal jurisdiction that the Arizona courts don't have jurisdiction over that your company over that corporation because they're not considered a resident of Arizona and that's a whole nother you could probably take a whole course on subject matter jurisdiction and personal jurisdiction but these are just some crude examples of what they mean and things that you should consider in attacking the sufficiency of a complaint in proper venue this one I don't see very often because it's not really a strong motion to dismiss you can file a motion on improper venue which basically means I'll give you an example in Arizona we have about six seven different counties so if I don't know the motor vehicle accident happened in Pima County and the plaintiff filed the complaint in Maricopa County I could move for a change of venue or file a motion for improper venue saying you know this really isn't the right County it should be in Pima County so I'm filing the motion to dismiss more than likely it would just get moved if the court decided to grant it you know you will see especially with the Jodi arias trial there was a you know change that they want to do a change of venue you might hear that on the news a request for change of venue to a different County because of all the publicity so that would be a good example of changing venue of changing the different County and getting it out to a different venue where maybe the jury wouldn't be so prejudiced insufficient process we're going to talk about process I think in the next section but just to kind of give you a little taste of what that means is if the complaint or the claim is not proper properly served improper service process on the defendant that can be a way to attack the sufficiency of the complaint we'll talk and there are lots of things to talk about on that issue so we'll get into that a little bit here is your 12 B 6 standard failure to state a claim upon which relief can be granted and that will be ingrain that term will be in green in your head probably forever as long as you are involved in the practice of law but there's your 12 B 6 standard which we can talk about a little bit more detail later but basically again there's not enough evidence there's not enough allegations in the pleading legally to uphold the claim failure to join a necessary party this one I don't see very often but when I do it usually has to do with one of the examples I think is like if you have a product liability case and let's just say that I don't know the manufacturer or the distributor wasn't named as a defendant you can move then to have other necessary parties added to the action you might be able to join them later but check out your statute of limitations because there might be an issue on that so that's another way to attack a complaint is to say hey court not all the necessary parties are here they're not part of the action therefore it should be dismissed more than likely they're just going to add the other party but it's another way you can try to attack the complaint motion for more definite statement we did talk about that earlier motion to strike we talked about earlier motion to amend this really isn't a way to get rid of a claim or a complaint but it kind of goes hand-in-hand I think with motion for more definite statement if you file your motion for more definite statement an alternative relief could be a motion to amend so in other words you know okay court there's not enough information for me to answer here so first I need a more definite statement and/or if it's not clear they need to amend their motion there their complaint another example of that would be if you're on the plaintiff side and the time to amend your complaint has passed look at your state to see how what the time frame is but there's a time frame that you can amend it once as of right after that particular time frame you didn't have to file a motion with the court a good example of filing a motion to amend for a reason would be to add a particular claim let's say that you've done some additional research and there's other claim that you know you didn't really realize was out there and so you until you started doing some discovery or maybe another party that you didn't realize was out there until you started doing some other discovery so if you're a plaintiff and you want to add them to your complaint you would file a motion to amend with the court to get permission to do that okay and to kind of wrap up this section our last slide here drafting defensive pleadings demonstrating the plaintiffs faults we've kind of already touched on that on the last slide but I do want to talk about some specific things here and this has to do more with strategy than anything else the one thing I think the strongest thing that you want to hit on if you are trying to attack the plaintiffs faults are the sufficiency of the pleading is plaintiffs failure to follow substantive rules and when I say that this is really where your 12 B 6 comes in is you want to explain why the plaintiff has failed to assert enough information or allegations upon which the claim can be granted so basically you're saying to the court even taking into consideration let's just assume all the facts that are alleged and plaintiffs complaint are all true and we agree with all of them even giving them that there's still not enough information to set forth a prima facie case to proceed and when I say prima facie there's another handout in your packet called pleadings and motions and I describe kind of what a prima facie case is more in those materials but basically if they're let's just take the medical malpractice statute for instance in Arizona there are three basically three main requirements that you have to prove if there's not enough information in the complaint even assuming all the facts are true that they can prove those three different causes or parts of the cause of action then you should court dismiss the complaint the second I call it the fallback argument the second thing that you can argue is that they fail to follow the procedural rules this is kind of a weaker argument then the failure to follow substantive rules because substantive really has to do with the law I mean the legal theory itself procedural rules again have to do with well they didn't follow the proper formatting it's not the proper you know type of pleading that they've pled that's actually more substantive but you know the procedural things that we talked about earlier you can also argue that it should be dismissed for procedural issues however what I would do is I would argue both but I would highlight the substantive argument part of my motion because that's really going to be your stronger meat that's going to be the stronger part of your motion the one thing that you want to do always is if you are filing your motion to dismiss in the prayer for relief part make sure that you request that the complaint be dismissed with prejudice and I say that because if well for a couple reasons but number one if you get the complaint dismissed with prejudice that basically means that plaintiff you can no longer ever come back at me against my client my defendant with the same cause of action ever again it has now been dismissed with prejudice it's over it's done it can never happen again if it's dismiss without prejudice and sometimes courts will do this if they are giving the plaintiff kind of a second go at you know filing their claim or something for whatever reason that means that they can still pursue the claim they can refile they can still go after you but the one thing to consider is statute of limitations so let's just say that the court says okay we're going to dismiss your complaint plaintiff without prejudice we're going to give you another opportunity to go refil for whatever reason look at the statute of limitations and they're all going to be different for different causes of action in different states so make sure that you check your your rules on this but consider the status limitations if it has expired if they're over that statute of limitations and they try to refil you now have a very good chance of filing a motion to dismiss to get rid of it on a 12 B 6 grounds so there are many things to consider when you are filing your pleadings at the very beginning of the case but that is definitely one of them kind of one of the main rules to remember always request with prejudice when you're filing that motion to dismiss and consider the statute of limitations issues if they are going to refil so I think that takes us to the end of this first section

Channel: Renaud Cook Drury Mesaros, PA

Views: 154,216

Keywords: Motions, drafting motions, paralegal guide, discovery requests, briefs, civil pleadings

Id: klhBheJqgTE

Length: 59min 57sec (3597 seconds)

Published: Wed Aug 06 2014