February 17, 2021 Practice Points

The Perils of Shotgun Pleadings: The Case for the Focused over the Scattershot Approach

The advice of Winston Churchill is as instructive today as it was 80 years ago.

By Eoin Moynihan

A case from the 11th Circuit serves as a cautionary tale for any attorney with a meandering drafting style. In Jackson v. Bank of America, N.A., 898 F.3d 1348 (11th 2018), the court issued a scathing condemnation of the appellant’s conduct of his case against lenders who had foreclosed on his clients’ home, specifically taking issue with what it described as his shotgun pleading.

For readers who might be less familiar with the use of firearm-related analogies than the population falling within the 11th Circuit’s jurisdiction, a shotgun can be fired in the general direction of one’s target without a great deal of precision, as the shot will disperse over a wide area and at least one or two pellets are likely to reach their target. Naturally, such a strategy does not lend itself particularly well to the drafting of pleadings, where precision, conciseness, and brevity are more likely to find judicial favor and advance a litigant’s case. The alternative is simply to annoy judges and waste their time by requiring them to wade through voluminous, frivolous and/or incomprehensible arguments that lead nowhere—all sound and fury, signifying nothing.

Indeed, this was the gist of the court’s sentiments in dismissing the appellant’s appeal against the district court’s grant of the defendants’ motion to dismiss. The court pulled no punches in giving its opinion on the quality of the drafting:

The amended complaint is an incomprehensible shotgun pleading. It employs a multitude of claims and incorporates by reference all of its factual allegations into each claim, making it nearly impossible for Defendants and the Court to determine with any certainty which factual allegations give rise to which claims for relief. . . . At twenty-eight pages long and having incorporated all 123 paragraphs of allegations into all sixteen counts, it is neither "short" nor "plain." . . . Absent the dismissal of the amended complaint, the Defendants, in framing their answer, would likely have responded in kind, with a multitude of affirmative defenses bunched together applying to each of the amended complaint's counts. Put colloquially: garbage in, garbage out. . . . Tolerating such behavior constitutes toleration of obstruction of justice. This is why we have condemned shotgun pleadings time and again, and this is why we have repeatedly held that a District Court retains authority to dismiss a shotgun pleading on that basis alone.

Yikes! What lessons can we learn from the offending attorney’s transgressions and this court’s judgment of them? Not much more than what a basic understanding of human nature might have imparted. It turns out that judges are people, and people do not like to spend hours trawling through a complaint fishing for a cognizable cause of action. On the contrary, they might be more inclined to punish them for wasting the court’s time by ordering them to personally pay double their opponent’s costs and expenses, including attorney fees, as was ordered by the court in this case.

A quick glance at Rule 8(a)(2) of the Federal Rules of Civil Procedure reveals the most important maxim to be observed when drafting a complaint—keep it short and plain. Ultimately, that is the main takeaway from this decision. At the risk of belaboring the firearm analogy, one should channel a bolt-action sniper rifle rather than a shotgun when drafting complaints—counts should be set out sparingly, deliberately, with careful consideration, and with surgical precision to ensure that each one hits its mark.

The advice of Winston Churchill to his War Cabinet in 1940 is as instructive in this regard today as it was 80 years ago:

To do our work, we all have to read a mass of papers. Nearly all of them are far too long. This wastes time, while energy has to be spent in looking for the essential points. I ask my colleagues and their staffs to see to it that their reports are shorter . . . the saving in time will be great, while the discipline of setting out the real points concisely will prove an aid to clearer thinking.

Hear! Hear! If anyone would like a copy of Churchill’s original typewritten memo, the author will send one to anyone who promises to frame it and hang it prominently in their office. Until then, take heed of Churchill’s advice and the 11th Circuit’s admonition: When drafting a pleading, eschew the shotgun and reach for the sniper rifle.

Eoin Moynihan is a managing associate with Global Legal Solutions Group in New York, New York.


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