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GPSolo Magazine

GPSolo January/February 2024: Trial Skills and Advocacy

A Litigator’s Checklist for Well-Pleaded Complaints and Defenses

Henry Hamilton III


  • The author presents a trial counsel’s checklist for well-pleaded complaints and common defenses.
  • Quite simply, you cannot zealously protect your client’s rights or defend your client’s position without mastering civil procedure.
  • Checklists ensure you meet the minimum requirements for a cause of action, but they also force you to think through issues more carefully and thoroughly.
A Litigator’s Checklist for Well-Pleaded Complaints and Defenses
Gabriel Cristea via Getty Images

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The theme for this issue is “Trial Skills and Advocacy,” which presents a golden opportunity to discuss one of my favorite subjects: civil procedure. Ask any civil procedure professor, and she will tell you that civil procedure is the most important class you will ever take. Well, after more than 30 years of trial practice and judicial service, I agree.

Even transactional lawyers increasingly need to find their way around the rules or at least be able to talk intelligently about the rules. Transactions go wrong. And, yes, you may see the inside of a courtroom. Moreover, you need some basic knowledge to explain to your client the importance of the “choice of venue,” “choice of forum,” and a whole slew of other procedural clauses that make their way into contracts. You may have to counsel your client on the real-life complications if these procedural clauses are invalidated.

For trial lawyers, civil procedure is the sine qua non of your practice. Quite simply, you cannot zealously protect your client’s rights or defend your client’s position without mastering civil procedure. Without civil procedure, substantive rights/defenses are not enforceable.

My best piece of advice for trial attorneys just starting out is to put together a cheat sheet or checklist for well-pleaded complaints and common defenses.

The complaint/petition begins the entire process. The complaint is the tool by which a plaintiff sets forth a cause of action and claim for relief against one or more defendants. A well-pleaded complaint showcases trial counsel’s competency.

From the defense perspective, the complaint represents the first opportunity to escape liability. A poorly pleaded complaint creates opportunities for defense counsel to seek dismissal of the complaint early on.

I like cheat sheets and checklists because they ensure you meet the minimum requirements for a cause of action, but they also force you to think through issues more carefully and thoroughly. Like most everyone else, lawyers are hesitant to call a project complete until every box is checked.

So, what goes into the checklist?

Plaintiff’s Complaint Checklist

  • Research. Before you draft a complaint, review the applicable federal, state, and local rules. Courts have inherent common-law power to adopt rules for the management of cases. Understand the rules. Does the court require a particular font? What about margins and type size? Are there page limitations? Do the rules prescribe standard forms of pleading? If you are not familiar with local rules, consider associating with local counsel. Additionally, research the applicable federal/state/local codes and ordinances. Do not assume you know the pleading requirements or the statute of limitations. The Rules of Civil Procedures and the applicable codes are full of nuances. Check and recheck.
  • Statute of limitations. The statute of limitations sets forth the time within which a claim must be asserted in court. Read the applicable code sections. Is the complaint within the appropriate statute of limitations for the subject matter of the dispute? Verify, verify, verify, and verify early, preferably during intake or shortly thereafter.
  • Caption. Know the rules and get the caption correct. The rules will identify what information is required to be in the caption. If you get the caption incorrect, it is just an invitation for defense counsel to more closely scrutinize the rest of your complaint.
  • Parties. Get the parties right. Who is your client? Is your client the real party in interest? Who are the defendants? Are the defendant(s) properly named? Have you included all indispensable parties?
  • Jurisdiction. A court has the power to decide a case only if it has subject matter jurisdiction over the controversy and personal jurisdiction over the parties. Does subject matter jurisdiction exist, and is the basis for subject matter jurisdiction stated? Does the court have personal jurisdiction over the defendant(s)? Is the basis for personal jurisdiction stated in the complaint?
  • Venue. Jurisdiction relates to the power to adjudicate, whereas venue is a determination of where that power should be exercised. Venue is statutory. Is venue proper in the captioned court? Is the basis for venue stated in the complaint?
  • Cause of action. Has each claim been stated in numbered paragraphs? Have you pleaded all the elements of the cause of action? Check and recheck. Is each averment in the complaint simple, concise, and direct? Is each claim stated in a separate count? Does the complaint inadvertently disclose any protected information?
  • Claim for relief. Does the complaint contain a short and plain statement showing that your client is entitled to relief and make a demand for judgment for the type of relief sought? Do the rules require a pleading to set forth a specific amount of money damages, or is it sufficient to state whether the amount of damages meets applicable jurisdictional requirements?
  • Jury demand. Is the action at law, equity, or both? Do you have to declare whether the action is at law or equity? Have you requested a jury demand? The right to a jury trial is subject to waiver.
  • Signature. Is the complaint properly signed? Does the jurisdiction require the complaint to be verified?
  • Original notice or summons. Have you completed the original notice, summons, or anything else the jurisdiction requires to accompany the complaint?
  • Service. How will service be accomplished? Have the appropriate parties been served?

Defense Checklist

Defense counsel should also create a cheat sheet or checklist.

  • Parties. Is the complaining party the real party in interest? Is your client properly identified? Have parties been properly joined?
  • Service. Was your client properly and timely served?
  • Jurisdiction. Does jurisdiction exist over the subject matter and over your client? Does personal jurisdiction exist? Does your client have sufficient minimum contacts with the forum state?
  • Venue. Is venue proper? Is venue inconvenient for your client or witnesses?
  • Cause of action. Does the complaint assert a claim for which relief may be granted? Is the cause of action properly pleaded? Is notice pleading sufficient, or does the specific cause of action require some form of special or heightened pleading? Have claims been properly joined? Is there a basis for motion for judgment on the pleadings, motion to strike, or motion for a more specific statement? When must these motions be brought?
  • Affirmative defenses. Counsel should keep a checklist of potential affirmative defenses, including the defenses of accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, duress, estoppel, failure of consideration, fraud, illegality, immunity, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, and waiver. Affirmative defenses may be waived if not properly asserted.
  • Jury demand. Has a proper jury demand been made?

These are a few general ideas that might go into trial counsel’s checklist. Create a checklist that will better assist you in your practice or specialty. You might even create a checklist for different phases of litigation.

The greatest value of membership in the American Bar Association GPSolo Division is access to our network of 25,000 talented and experienced members nationwide who are willing to share tips. What would you advise a new lawyer to put on his or her checklist? We are interested. Please send suggestions to [email protected].

Happy New Year, and may 2024 be everything you desire it to be and then some.