The rules of pleading often vary between jurisdictions. For example, under Rule 8(a) of the Federal Rules of Civil Procedure, pleadings in federal court need only contain a “short and plain statement of the claim showing that the pleader is entitled to relief.” While the decisions in Ashcroft v. Iqbal, 556 U.S. 662 (2009), and Bell Atlantic Co. v. Twombly, 550 U.S. 544 (2007), alter the texture of this standard, many states follow the notice pleading standard applied in federal court (often without consideration of Iqbal and Twombly). On the other hand, other jurisdictions require that pleadings include the factual basis demonstrating entitlement to relief. For example, Illinois law provides that a complaint is subject to dismissal if it does not allege sufficient facts to state a cause of action. See Winfrey v. Chicago Park Dist., 274 Ill. App. 3d 939, 942–43, 654 N.E.2d 508, 512 (1st Dist. 1995).
Further, while it is generally a good practice to attach operative documents, e.g., contracts, to a pleading, it is not generally required in federal and many state courts. Illinois, however, requires that the operative document be attached to the pleading where a claim or a defense is based on a written instrument. See 735 Ill. Comp. Stat. § 5/2-606. California requires that the pleading specify whether the contract is written, oral, or implied. See, e.g., Cal. Civ. Proc. Code § 430.10(g). Similarly, local rules in many jurisdictions require that the pleading being responded to be copied into the party’s answer thereto. Although this practice is often viewed as preferable for purposes of understanding disputed matters, local custom in some jurisdictions generally frowns upon such a practice. In short, it is essential that counsel become familiar with local practice as early as the pleading stage. Often, the best start for doing so is consulting with more senior lawyers or local counsel. The failure to abide by pleading requirements obviously can lead to the dismissal of your client’s complaint or defenses thereto.
The scope of discovery in most American jurisdictions is fairly, if not extremely, broad. For example, Rules 26 and 30 allow a party to take the deposition of “any person, including a party” “regarding any nonprivileged matter that is relevant to any party’s claim or defense.” Fed. R. Civ. P. 26(b) & 30. Many states provide a similar scope for depositions. There are, however, certain exceptions. For example, Arizona generally provides that, in the absence of a stipulation of the parties or a court order, parties may only take the depositions of parties, expert witnesses, and document custodians. See Ariz. R. Civ. P. 30(a). An attempt to depose another person in Arizona may likely be met with a motion to quash or for a protective order, thereby increasing the costs of litigation.
In addition, each jurisdiction has its own rules with respect to certain limits on the amount of discovery that may be had in litigation. For example, Rules 30 and 33 of the Federal Rules of Civil Procedure, respectively, generally limit the number of depositions that may be taken by any party to 10 and the number of interrogatories that may be propounded to 25. Idaho provides different guidelines for discovery, including a presumptive limit on the number of depositions and allowing a party to propound 40 interrogatories. See, e.g., Idaho R. Civ. P. 30(a), 33(a)(3). While distinct subparts of interrogatories generally count toward these numerical limits, see, e.g., Fed. R. Civ. P. 33(a)(1), several jurisdictions provided standard interrogatories that include subparts that do not count against such limits, e.g.,Arizona. Each jurisdiction has its own rules with respect to discovery that must be adhered to during the fact-development stage.
Lawyers are obviously fully capable of reading and understanding local rules. Indeed, it is absolutely necessary for counsel to refer to local rules with respect to page limits, deadlines, font size, etc., to adequately present their client’s position to the court. Failing to take into account these procedural matters may result in dismissal of your client’s claims or defenses, or result in increased litigation costs.
Those well versed in local practice and custom are often a font of knowledge with respect to these items. In short, local counsel is not simply a mechanism for pro hac vice admission and filing; they generally possess a wealth of knowledge helpful to a smooth litigation process. Similarly, more experienced lawyers who have practiced before certain courts and participated in various legal mechanics should be consulted to protect your client’s interests. Lawyers should use all their tools, including the tools possessed by more seasoned and local counsel.
Justin L. Heather, YAC content manager, is with the Quinlan Law Firm LLC in Chicago, Illinois.