Before a legal dispute can be presented to a judge or jury, the parameters of the dispute must be defined. The opposing side must be informed of the basis for the lawsuit and be allowed the opportunity to contest the allegations. Once the issues are defined, either or both parties may wish to ask the judge to resolve certain issues short of trial. Near the end of the pretrial phase of the litigation, the judge will require the parties to file statements of their respective positions on a variety of issues. The documents filed with the court in the course of litigation are collectively known as pleadings. Paralegals are often used extensively in the preparation of pleadings.
All civil litigation is started by a complaint. In some forms of civil litigation, the complaint is called a
The complaint must identify the parties to the lawsuit. The party starting the lawsuit is known as the
The names of the plaintiff and defendant are listed in the
The complaint is always accompanied by a summons. The
The Jurisdictional Allegations
Each complaint must include a statement of the facts that give the court jurisdiction over the dispute. A court cannot decide a dispute if it does not have jurisdiction. A typical statement of jurisdiction identifies the facts that establish the jurisdiction of the court, such as the residence of the parties, the location of the accident, or the consequences of a breach of contract. A statement of jurisdiction may also reference the statute that gives the court jurisdiction over the dispute. If the complaint is filed in federal court, it must also contain a statement that the dispute concerns an amount of money over the minimum jurisdictional limit.
Drafting a complaint requires a thorough understanding of the facts and how those facts relate to the legal claim. It is not necessary to include every fact in the complaint, but the complaint must contain enough facts to prove every required element of each claim.
The Basis for the Complaint
The purpose of the complaint is to notify the defendant of the claim. The complaint must identify the claim with sufficient detail so the defendant can prepare a response. If the plaintiff was injured in an accident, the complaint should state when and where the accident occurred. It should describe the conduct of the defendant that the plaintiff believes was negligent and it should identify the harm suffered by the plaintiff.
The statement of the basis for a complaint is called stating a
The complaint may describe more than one cause of action. It must state at least one cause of action against each named defendant. Multiple causes of action against a defendant are allowed as long as each meets the necessary jurisdictional requirements and has an adequate factual basis.
The requirements for what must be included in a pleading vary from jurisdiction to jurisdiction and from claim to claim. The minimal elements of parties, event, location, breach of duty of reasonable care, causation, and damages may suffice for an automobile accident claim. Considerably more detail is required for an employment discharge claim. Refer to similar pleadings in other cases to get a sense of the minimum requirements for pleading each kind of claim.
The Request for Relief
The plaintiff must
The plaintiff usually requests relief in the form of money damages. The amount of money specified in the complaint must only be a good faith estimate of what the lawyer thinks a jury will award the plaintiff. The jury is not bound by the amount stated in the request for relief. A jury can award a greater or lesser amount based on the evidence presented to it.
A plaintiff can also request nonmonetary relief in some situations. Nonmonetary forms of relief are known as
The Jury Trial Demand
Civil lawsuits can be decided either by a judge or a jury. Many states guarantee the right to a jury trial in most civil lawsuits. These states also allow the parties to waive their rights to have the case heard by a jury. Local statutes or procedural rules sometimes require the parties to specify whether the case is to be decided by a judge or a jury. In these states, a demand for a jury trial must appear in the complaint. The demand for a jury trial should appear prominently in the complaint — as a separate allegation at the beginning of the complaint, as a part of the request for relief, or in a separate statement in the caption or at the end of the complaint.
The lawyer for the plaintiff must sign the complaint. All states and the federal courts have rules of court governing the effect of the lawyer's signature. By signing the complaint, the lawyer certifies that the facts in the complaint are true to the best of the lawyer's knowledge and that existing law supports the allegations of the complaint. The court has the authority to punish the lawyer if a factual allegation proves to be untrue or an allegation is contrary to existing law.
The defendant's response to the complaint is called the answer. The summons calls for the answer to be served within a specific time from the service of the complaint. This time is usually thirty days, but that can vary from court to court and from claim to claim. If the defendant does not answer the complaint, a judgment of default can be entered. This is a real judgment for the relief requested in the complaint.
When a judgment of default is entered, the defendant is not given any opportunity to respond to the statements of the plaintiff. When a defendant files an answer to the complaint, it will be in a form similar to the complaint. That is, it will have a caption with the same information as the complaint, a body containing the response to the allegations of the complaint, a request for relief, a signature, and a demand for jury trial. Each of these components serves a purpose identical to the purpose served in the complaint.
The defendant's lawyer is often at a disadvantage when preparing an answer. The plaintiff's lawyer may have taken weeks or months to investigate the claim before preparing the complaint, but the defendant's lawyer only has twenty days. It is common to grant extensions of time to answer a complaint, but beware of the pitfalls of such an agreement. Certain matters may only be raised within a limited time from the service of the complaint, or they are waived.
The answer must respond to each cause of action stated by the plaintiff. The defendant may contest the facts of the allegation by denying knowledge of the accident. The defendant can deny liability for the conduct as when claiming that the collision was caused by another person. The defendant can contest the extent of the injury suffered by the plaintiff. The defendant can even contest the application of the law to the defendant's conduct.
When the defendant claims there is a legal reason the plaintiff's claim is improper, this is called an
If the defendant has a cause of action against the plaintiff, it can be asserted in the answer. This type of pleading is called a
Motions are used to resolve the dispute between the parties without the need for a trial. A motion asks the trial judge to apply established principles of law to the cause of action stated by the plaintiff.
The form of most motions is prescribed by court rule. While each motion addresses a different procedural matter, they have several common elements.
Notice of Motion
The notice of motion is simply the notice that the court will hear arguments on the issue raised in the motion. The motion is prepared after consulting with the court clerk about the availability of the judge. It specifies the date, time, and location of the hearing. The motion specifies the nature of the relief requested. In many courts, reference to the applicable court rule is required. Finally, the notice of motion must be signed.
Some court rules allow the notice of motion and the motion for summary judgement to be combined. Others insist that they be separate documents. In either type of jurisdiction, parties commonly serve notices that specify “a date and time to be determined.” These notices are placeholders, since the timelines for opposing motions are usually calculated backward from the hearing date, instead of forward from the service date.
Memorandum of Law
Each motion must be supported by legal argument. The memorandum of law states the legal basis for the motion and provides the court with specific authority supporting the position of the moving party. Most memoranda of law follow a traditional format of Introduction, Statement of Facts, Statement of the Legal Issues, Argument, and Conclusion. The structure of the memorandum of law is usually defined by court rule. If there is no applicable court rule, the paralegal should review other motions filed and received by the law firm to determine if the structure of the memorandum of law is dictated by tradition.
Affidavits and Exhibits
Dispositive motions often rely on information that is not contained in the complaint. The moving party may want the judge to consider additional facts. The facts may be documents, deposition testimony, documents from previous litigation, or any other form of demonstrative evidence not contained in the complaint. These materials are made a part of the motion when they are attached as exhibits. Again, court rules govern what kinds of exhibits are allowed.
In certain cases, the motion might rely on observations or affirmations of fact by the client or another witness. If those factual matters are not contained in a document that can be used as an exhibit, an exhibit must be created. The typical method is to create an affidavit containing the necessary facts that is sworn to before a notary public. The sworn statements in the affidavit are entitled to the same consideration as any other fact.
All motions require a decision from the judge. The judge communicates the decision to the parties in the form of an order. The court rules governing motions usually require the moving party to prepare a proposed order that reflects the relief the party is requesting.