Miscellaneous Rules

A Note on Electronic Case Management Software: There is now a burgeoning industry dedicated to providing software to help lawyers synthesize this knowledge. This software can help lawyers who are solo or in small firms compete with the vastly superior resources of larger firms. For example, you can begin listing facts from the case in the software, and eventually you will be able to sort through the facts to identify every witness and document proving the fact true or false. This helps exponentially when preparing a case for summary judgment or trial. At the same time, meticulously organized lawyers can track all of this information using their own forms and systems. The key is meticulous organization.

D. Drafting the Complaint and Answer

Despite all of the pre-litigation steps that the plaintiff’s attorney has gone through, the case assessment or investigation is not complete until the end of the case. The first practical use of the investigation comes when it is time to draft the complaint, or for the defense, filing the answer or motion to dismiss.

1. The Complaint

When a lawyer drafts a complaint, the goal is to use the knowledge learned during the investigation to set forth their theory of the case. The complaint serves both legal and strategic goals. No case is filed until a complaint is filed within the proper jurisdiction and served on the defendants. At the same time, even drafting the complaint without filing it can sharpen the plaintiff’s view of the case, and in some instances, even convince the defendant to settle before litigation.

2. Strategic Purpose of the Complaint: Who is the Audience?

A complaint is asked to speak to several different audiences:

The Defendant is the primary audience. Federal Rule 8 says that the complaint must give notice to the defendant of the claims being asserted. In addition to notifying the defendant formally, consider how the complaint will impact other individuals associated with the defendant, particularly those who are named in the complaint. For example, if the case involves employment discrimination, the complaint will identify the actions of the plaintiff’s managers and coworkers.

The court and the court clerks are another audience. The complaint will need to hit upon all jurisdictional requirements, yet also be readable and appealing to the court. Overly dry complaints should be avoided, but so should complaints that include hyperbole, exaggeration, and insults.

The complaint will also speak to the expectations and experiences of the plaintiff. The lawyer should always have the client review and sign off on every statement contained in the complaint.

The media and public have access to the litigation, but there are very few instances when it makes strategic sense to play to the press.

3. Drafting Tips:

The list of drafting tips could easily be a hundred pages long. However, a complaint will be highly effective if it serves two functions well: defining the controversy and being persuasive.

A complaint must define the controversy, parties, and relief sought in the proceedings. A lawyer should use discretion by including only that which is necessary, and omitting extraneous information.

At the same time, a complaint should not be a rote recitation of facts and dates. Although the complaint is to be read objectively, it is an opportunity to frame the case in the most persuasive way possible. The complaint should emphasize the strengths of the plaintiff’s claims.

4. Mechanics of the Complaint

Lawyers must do the following for every complaint:

1) Check the federal, state and local rules for requirements for filing a complaint.

2) Properly allege subject matter jurisdiction, personal jurisdiction, and venue, citing appropriate statutes and cases supporting your claims. The aim to show the court it should hear the complaint. For example, a federal court has jurisdiction if the claims are between citizens of different states and involve damages of more than $75,000, or if the complaint alleges claims arising under the Constitution or under federal laws. The complaint should state how the case satisfies these conditions.

3) Draft a statement of factual allegations.

4) Make each legal claim a separate count. For example, if the claims include discrimination, breach of contract, and intentional infliction of emotional distress, each count will be numbered, and each with its own heading. At the start of each section, for each claim, start with a sentence that you “incorporate by reference all prior factual allegations herein.”

5) Plead facts with particularity if the claim requires it, as in a fraud claim.

6) Offer expert support in the complaint if required by law. Medical malpractice claims, for example, often require an affidavit from a medical expert alleging that the conduct fell below the appropriate standard of care. Rely on the research from the pre-investigation phase to ensure you are informed about what your claims require in the appropriate jurisdiction.

7) Plead litigation prerequisites if the claim requires it, like employment discrimination cases under Title VII, which must first be filed with the EEOC or state agency with a right to sue letter prior to filing in court.

8) Request the relief the plaintiff is seeking, like money damages, an injunction, attorneys’ fees, and court costs. If the plaintiff seeks punitive damages, the complaint must make specific factual allegations, like a culpable state of mind.

9) Ask for a jury trial. Remember, both parties can waive a jury trial at a later date, but not pleading jury trial could lock you in to a bench trial.

4. The Answer

Drafting an answer often seems like a deceptively easy task to a young lawyer. On the face of an answer, it may appear that the defendant’s answer simply needs to deny all of the allegations and raise boilerplate affirmative defenses. In reality, most of the work which goes into the Answer happens off the page. Here are the proper steps to drafting an Answer.

First, calculate and calendar the deadline to file the answer. Federal Rule of Civil Procedure 12(a)(1)(A) requires service of an answer "within 20 days after being served with the summons and complaint. . ." This gives a lawyer no time to waste. If the lawyer has not already done so, they should contact the client and request their file on the matter and any other related documents. The information you obtain in this initial meeting will dictate your entire plan of action in preparing the answer.

Determine if the action can or should be removed to federal court. Review 28 U.S.C. §§1331, 1332 and Federal Rule of Civil Procedure 81(c) for applicable removal statutes/rules.

Evaluate whether you should file an early motion to dismiss. Review Federal Rule of Civil Procedure 12(b) for the defenses you can assert in a motion to dismiss. Those defenses include:

(1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a party under Rule 19.

Evaluate the complaint to determine if it meets particularity standards. For example, if the complaint contains a fraud count, Federal Rules of Civil Procedure 9(b) and 12(b)(6) may permit you to file a motion to dismiss for failure to plead fraud with particularity as to that count.

Evaluate whether it makes sense to file a motion for a more definite statement or motion to

strike. See Federal Rules of Civil Procedure 12(e) and (f) for the pleading standards.

Evaluate whether the venue is proper. Federal Rule of Civil Procedure 12(b)(3) allows a motion to dismiss for improper venue.

A motion to transfer can only follow an Answer. See 28 U.S.C. § 1404. If you plan on filing a motion to transfer venue based upon forum non conveniens, raise that ground as an affirmative defense in your answer.

You must file an Answer if you are not filing a motion to dismiss, a motion to strike or a motion for a more definite statement.

6. Types of Denials:

Admit or deny each material allegation in the complaint. See Federal Rule of Civil Procedure 8(b) There are three types of denials.

● An unqualified denial is proper if the allegation is contested in its entirety such as "defendant denies the allegations contained in paragraph 1 of the complaint."

● If the client contests only a portion of a particular allegation, admit that part which is true and deny the remainder of the allegation. For example, "defendant admits that venue is

proper but denies the remainder of the allegations contained in paragraph 2 of the complaint."

● If the client lacks information sufficient to either admit or deny a particular allegation,

Rule 8(b) permits you to respond accordingly, and that response "has the effect of a denial." An example of this form of denial is "defendant lacks knowledge or information sufficient to form a belief as to the truth of the allegations contained in paragraph 3 of the complaint."

● Research and raise all potential affirmative defenses. Federal Rules of Civil Procedure 8(c) and 12 require you to raise all potentially applicable affirmative defenses in the

Answer. Good practice dictates that you carefully research the claims made in the complaint and determine which affirmative defenses may apply. Do not just rely on the list of affirmative defenses contained in Rule 8(c) and list all of them. An affirmative defense is any allegation upon which the defendant, rather than the plaintiff, bears the ultimate burden of proof. In many jurisdictions, an affirmative defense is waived if not asserted in the answer.

● Determine whether a counterclaim, cross-claim and/or a third-party complaint is proper.

Review Federal Rules of Civil Procedure 13 and 14. If the claim is a compulsory counterclaim, it must generally be filed at the time you file a responsive pleading.

Key Takeaway: The failure to deny a specific allegation is considered an admission, so be sure to respond to each allegation of a complaint, including WHEREFORE and unnumbered paragraphs. It is good practice to include a sentence stating, in substance, "defendant denies each and every material allegation not heretofore controverted and demands strict proof thereof."

E. Avoiding Rule 11 Sanctions

Federal Rule of Civil Procedure 11 provides that a district court may sanction attorneys or parties who submit pleadings for an improper purpose or that contain frivolous arguments or arguments

that have no evidentiary support. The Rule is designed to ensure that claims brought in the federal courts have merit and are not brought for an improper purpose. To accomplish these goals, the Rule imposes upon an attorney or litigant a duty to make a reasonable examination of the merits of and motives behind a claim before signing a paper and filing it with the court. Rule 11 imposes mandatory sanctions for failure to comply with this duty.

As you can see, this brings us full circle. We began this section discussing the importance of presuit investigation and research, and now we see how Rule 11 will come back to haunt lawyers if they do not do their due diligence.

At the same time, some lawyers use Rule 11 as a weapon to harass plaintiff’s lawyers, in some ways turning the original purpose of Rule 11 on its head. To examine this a little closer, consider how this played out in the Woburn Toxic Trial.

Case Spotlight: Woburn Toxic Trial

In 1981, Anne Anderson’s son was diagnosed with leukemia. Anderson began investigating whether there was something in the water that caused the epidemic. For 20 years, over two dozen people who lived in the small town of Woburn, Massachusetts had been afflicted with the disease. Eventually, Anderson hired a lawyer, organized other citizens of the town, and filed a lawsuit against two companies for dumping chemicals in the water. The resulting court case became famous when the plaintiff’s lawyer, Jan Jan Schlichtmann, wrote a book about the ordeal. The book, A Civil Action, was later made into a movie starring John Travolta. The book remains a classic example of how a civil trial plays out in the justice system.

In the late 1970s, civil engineers discovered that local wells G and H were contaminated with several suspected carcinogens, including trichloroethylene (T-C-E). The wells were subsequently shut down. Woburn had a long history of industrial activity, including a number of tanneries. Two major corporations, W.R. Grace Co. and Beatrice Foods, owned factories and plants in the

area.

The citizens first consulted Joe Mulligan, a Boston lawyer, who agreed to represent the citizens in a lawsuit against anyone responsible for the contamination of the local wells. In early 1981, the Center for Disease Control issued a report on the Woburn cancer cluster that showed the cancer rate was at least seven times higher than normal, but did not definitively connect the well contamination with the leukemia cases. The plaintiffs had signed a contingency fee agreement, which meant that the law firm would food the bill for the litigation. It did not take long to realize that the litigation would be expensive and time-consuming. Mulligan assigned a young lawyer, Schlichtmann, to take on the case. The Woburn case had been neglected at the firm, and one of the senior attorneys warned him that the Woburn case was “a black hole.”

As the statute of limitations on the case approached, Schlichtmann teamed up with a non-profit firm in Washington, DC, that was looking for an environmental case to pursue. He turned the case over to the firm but stayed on as local counsel. They filed a complaint eight days before the statute of limitations ran in May 1982, claiming that Beatrice Foods and the W.R. Grace Company were responsible for contaminating the wells and thereby causing the leukemia cluster in Woburn. Grace owned a manufacturing plant north of Woburn. Beatrice Foods owned the Riley Tannery in the same area.

Beatrice Foods hired Jerome Facher, an experienced trial lawyer. William Cheeseman represented Grace. Cheeseman was a specialist in pre-trial strategy rather than trials. He took the lead on the pleading phase of the case. Rather than filing an Answer, Cheeseman used Rule 11 to try to kill the case right away. The motion charged Schlichtmann with filing a frivolous and unfounded lawsuit, and other suspect ethical behavior such as soliciting clients. The judge, Walter Jay Skinner, held a hearing on the motion. Schlichtmann refused to submit to crossexamination by Cheeseman on the theory that doing so would violate his obligations to his clients. The hearing was conducted by Judge Skinner based on submitted questions by Cheeseman, and the Rule 11 motion was denied.

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KEY TAKEAWAYS - SECTION I

1. There are six steps in a pre-litigation investigation: Initial fact investigation; initial legal investigation; determination of case’s value; identification of strategic factors; organization of research and information; and evaluation of the case and discussion with the client.

2. A lawyer drafting a complaint must review all federal and local rules carefully.

The complaint must properly allege subject matter jurisdiction, personal jurisdiction, and venue, or else it may be dismissed.

3. Each legal claim must be a separate count in the complaint. Lawyers must also plead any special facts related to the cause of action, such as fraud, and must be aware of any special matters, like medical malpractice, requiring additional submissions of prove at the complaint stage.

4. If a cause of action requires exhaustion of administrative remedies, the complaint must state that the plaintiff properly notified the other party through the appropriate state or federal agency, and received a right to sue letter.

5. The failure to deny specific allegations in an Answer is considered an admission.

As a result, lawyers should never simply include a blanket denial. Instead the lawyer should admit, deny, or deny without sufficient information each and every allegation in the complaint.

6. According to Rule 12(b), there are seven defenses you can assert in a motion to dismiss. Those defenses include: (1) lack of subject matter jurisdiction, (2) lack of personal jurisdiction, (3) improper venue, (4) insufficiency of process, (5) insufficiency of service of process, (6) failure to state a claim upon which relief can be granted, and (7) failure to join a party under Rule 19.

7. The defendant only has 20 days from the day after being served with the summons and complaint to file an answer. See Fed. R. Civ. P. 12(a)(1)(A).

8. Lawyers should not guarantee outcomes when speaking to their clients. It is important to be forthright with clients about the strengths and weaknesses of the

case.

9. Both federal and state rules leave room for judges to have control over certain court procedures. A judge’s standing orders enumerate procedure in that judge’s courtroom.

10. Pre-litigation investigation includes evaluating a judge’s orders and patterns, the opposing counsel’s strategies and experiences, and the other party’s litigation history.

QUIZ

1. Name five of the 11 areas covered by the Federal Rules of Evidence?

Answer: Judicial Notice, Hearsay, Witnesses, Relevance, and Authentication.

2. When drafting a Complaint, who are the four “audiences” to keep in mind?

Answer: The defendants, the client, the court, and the public/press.

3. True or False: The failure to deny a specific allegation of the complaint is an admission.

Answer: True.

4. What are the three types of denials in an Answer?

Answer: An unqualified or uncontested denial. A partial denial. And a denial for insufficient information.

5. What are the three rules of general applicability which govern federal civil cases?

Answer: Rules of general applicability include the Rules of Civil Procedure, Rules of Evidence, and Rules of Appellate Procedure.

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II. DISCOVERY

A. Philosophy Underpinning Discovery

Discovery is the centerpiece of civil litigation in this country. No area of law sees more activity in terms of rule-making within the federal rules. The purpose of the civil discovery rules is for the playing field to be leveled, since both sides then have access to equal information and the sources for their opponent’s case. This avoids trial by surprise. Ultimately the goal of the justice system is for the court to reach the proper decision.

The summary judgment process, which is the lifeblood of modern civil litigation, depends on a robust discovery process in order to work. The summary judgment process is meant to determine if there is a triable issue, or if the case could be resolved without a trial. Summary judgment motions and responses are based on identifying facts which are learned in discovery. Although there are valid criticisms of summary judgment, it is a tool used to avoid going through the expense of trial if there is no reason to go to trial.

There are also downsides to relying so heavily on discovery. Discovery in the American judicial system is very labor intensive, costly, and takes a long time.