The practitioner should draft pleadings to preserve and advance the client's claims or defenses in accordance with the requirements of court rules and applicable law.
Generally, both affirmative and responsive pleadings should be filed only after the practitioner has completed sufficient factual investigation and legal research to determine the factual basis for the legal theory on which the client's position rests and the most effective legal arguments to advance the theory. In certain circumstances, however, it is not possible to make those determinations until factual information is obtained through formal discovery that cannot take place until pleadings are filed. In other circumstances, immediate action may be necessary to protect the client's health or safety or to safeguard important rights. In such situations, pleadings should be prepared and filed based on available facts and preliminary research. If necessary, the pleadings can be amended or supplemented when new facts come to light as a result of discovery or further research.
In certain circumstances, specific elements of the pleadings are required by court rules or applicable law. Other elements should be considered for their strategic and tactical impact on the case. Among other things, the following should be addressed:
- The practitioner should file all required forms and pleadings on a timely basis.
- The practitioner should determine the level of specificity necessary in the pleadings based on tactical considerations and court rules and applicable statutory provisions.
- Under applicable law, facts alleged in a pleading ordinarily are deemed established as against that party. Leave of court may be required to allow a party to contest what they have alleged or admitted.
- When representing a defendant, the practitioner should raise all appropriate affirmative defenses or compulsory counterclaims that might otherwise be waived.
- The practitioner should ensure that the pleadings adequately reflect the litigation strategy that has been developed for the case.
At a minimum, pleadings should clearly set forth all necessary elements that are required by applicable law. They should be formatted in compliance with pertinent court rules and should be filed in a timely manner, taking into account statutes of limitations and required response times. Pleadings should never include frivolous claims.