Drafting a Complaint - ABA YLD 101 Practice Series

By Suzanne M. Lewis, Esq.

You have been asked to meet with a client and determine whether he or she has a case. You are also asked that if a viable case exists, to prepare a complaint seeking redress for your new client's damages and/or injuries. This is not as daunting a task as it would appear. Consider some of the following in completing your assignment.

  • Interview the client.
    Obtain all available facts from the client and any available third persons with knowledge of the issue or incident that will form the basis of the complaint.
  • Make a preliminary determination of available causes of action.
    Know and understand all elements necessary to the cause of action for two reasons - first, to ensure that you have facts that meet the requisite elements, and second, to ensure that you survive a motion to dismiss for failure to state a claim.
  • Also determine the statutory basis, if any, for your client's standing to bring the cause of action.
    Your client may feel aggrieved by another person's actions; however, he or she may not be in a position to seek redress for perceived or actual injury as a result of such actions. It is far better to determine this prior to filing a complaint than to expend time preparing a complaint only to be dismissed for lack of standing.
  • Determine the statute of limitations for each available cause of action.
    If the limitations periods have expired, or will expire soon, this will affect the time that you have to draft the complaint and which claims are included.
  • Make a preliminary determination of the persons and/or entities against whom you are able to make a claim under the causes of action considered.
    Consider including agents, principals, partners, joint venturers and the like. Also, consider whether you should include any unidentified "Doe" defendants.
  • Make a determination of the jurisdiction where you need to bring the action.
    This may be a state or a federal court, or varying jurisdictions within a particular state. Make sure that you have a clear basis for bringing a case in a particular venue. Beware of "forum shopping," which is disfavored by many courts.
  • Know if your jurisdiction is a "notice pleading" jurisdiction.
    This will make a big difference in the specificity with which you frame the allegations contained within the complaint . See, e.g., Fed. R. Civ. P. 8 (Federal courts generally require only notice pleading unless pleading items listed in Fed. R. Civ. P. 9).
  • Start the complaint by identifying the parties against whom you are bringing the action.
    This typically includes a statement of the party's name, and the county and state of their domicile for an individual or principal place of business for entities.
  • Set forth the basis for the court's jurisdiction.
    This can include subject-matter jurisdiction, personal jurisdiction, and venue allegations, depending on the court in which the action is being brought. For example, unless a federal question is involved, there is a monetary requisite in federal courts that must be met in order to bring an action in a federal court . See, e.g., 28 U.S.C. §§ 1331, 1332. Make sure that you are aware of these particular jurisdictional requisites for the court in which you are proceeding.
  • Set forth the facts common to all counts, or causes of action, to be made.
    This part of the complaint presents your client's "story" in pleading format.
  • Set forth each cause of action separately.
    For example, a cause of action for breach of contract against Mr. Smith should state the elements in numbered paragraphs under the heading "First Cause of Action - Breach of Contract against Mr. Smith." By incorporating the common facts by reference and then alleging the elements of each claim, you can easily check to assure you have alleged all elements of a claim, and determine whether additional facts specific to that claim need to be alleged in conjunction with the elements. If proceeding against more than one defendant, set forth the causes of action against each defendant separately as well. Doing so prevents ambiguity about which claim is brought against whom. For example, a second cause of action for negligence against Mr. Smith and Acme, Inc. would be headed "Second Cause of Action - Negligence Against Mr. Smith and Acme, Inc."
  • Set forth the relief sought at the conclusion of each count.
    Be sure to be familiar with your state's requirements regarding the pleading requirements for specific relief sought. For example, certain states require pleading of wanton and willful behavior when punitive damages are sought. Or, if injunctive relief is sought, certain states require that the party seeking the injunction allege that there is no adequate remedy at law.
  • Consider the possible need to attach any contracts or relevant documents to the pleading, if any.
    Determine your jurisdiction's requirements in contract actions. For example, in Virginia, you will be subject to a Motion Craving Oyer in the absence of identification of the contract upon which you are basing your complaint. A similar procedure in California state court is called "a demurrer." Sometimes the inclusion of exhibits that are not necessarily required can be helpful to facilitate an early settlement offer or to assist the court in understanding the case.
  • Understand verified versus unverified complaints.
    A verified complaint is one signed under the penalty of perjury by the plaintiff. Some jurisdictions require that complaints for certain types of claims be made by verified complaint. Typically, if a complaint is signed under oath, the answer must be made under oath.
  • End your complaint with a "Prayer for Relief."
    This is typically a statement listing all of the various forms of relief sought by the plaintiff. Remember to include a request for costs as a prevailing party and consider whether you have a legal basis to request reasonable attorneys' fees as part of those costs.

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About the Author

Suzanne M. Lewis, Esq. is a litigation associate specializing in insurance defense in Washington, D.C. She is the immediate past Chair of the Young Lawyers' Section of the Maryland State Bar Association..

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