Complaints control everything in your case: the court where you bring the action, who the parties are, what the issues are, who has what burden of proof, what discovery is permissible, what remedies are available, and what defenses you are likely to confront. Drafting properly is the sine qua non for achieving your client’s objectives in litigation. Here are 10 tips for properly drafting a federal court complaint.
1. Gather Relevant Facts and Research Applicable Law
Before drafting your complaint, you must know the relevant facts and applicable law.
Gather relevant facts. Before meeting with your client to learn relevant information, review key documents, such as the contract at issue, so that you will be informed.
At your client meeting, use your familiarity with the key documents, as well as professionalism and careful listening, to establish rapport with your client. To encourage your client to be forthright with you, explain that everything said at your meeting is confidential, within the attorney-client privilege, cautioning the client against inadvertent waiver of that privilege by, for example, talking with friends about your conversations.
Explain that you need to know both positive and negative information about the case and why (briefly summarize the litigation process). Give your client the opportunity to tell the story. Take notes but be attentive. Interrupt, but not unduly, whenever you need more detailed information. Be supportive, even if your client has made an error in judgment or, worse, an error giving rise to the dispute. But if something doesn’t ring true, call your client on it by conducting what is essentially a cross-examination on the questionable “facts.”
In a commercial case, get a good sense of the bigger picture of your client’s business so that you understand the context in which the relevant transaction occurred. Find out what business considerations should be factored in when determining your strategy, including your client’s objectives.
Your client will likely provide you with information beyond what is useful—and not provide you with information that you require. Ask follow-up questions to get the information you need to draft your complaint, and obtain additional client documents as necessary. This is an opportune time to find out if any insurance coverage may apply and to instruct your client about preserving relevant documents in all formats, including electronically stored information (ESI), in compliance with the litigation-hold requirement, to avoid potentially Draconian sanctions. For a chilling cautionary tale about such sanctions, see Kristine L. Roberts, Qualcomm Fined for “Monumental” E-Discovery Violations—Possible Sanctions Against Counsel Remain Pending, Litig. News Online (May 2008), http://apps.americanbar.org/litigation/litigationnews/2008/may/0508_article_qualcomm.html.
Make sure that there is no procedural impediment to commencing a legal action. Have the parties entered into an arbitration agreement depriving the court of jurisdiction over the subject matter of the dispute? Have they agreed to any conditions precedent that must be satisfied before bringing a court action, such as mandatory mediation? Does any automatic bankruptcy stay apply with regard to any proposed defendant?
Research applicable law. Based on the facts that you have gleaned, research legal theories and remedies for your complaint. Read cases of interest, and research statutes and regulations that may apply. In addition, read treatises on relevant subjects. If judges in your jurisdiction rely on the American Law Institute’s Restatements of the Law, read applicable sections and the comments, illustrations, and reporter’s notes in the text. Find law review articles and American Law Reports annotations for in-depth analyses of specific issues. If your firm has a brief bank and complaint form bank, take advantage of them. Think creatively, outside the box; brainstorm with colleagues.
2. Decide Which Plaintiffs and Defendants to Choose
Choose plaintiffs strategically. Each plaintiff must be the real party in interest and have the capacity to sue; each must have standing, i.e., a personal, direct legal interest in the outcome of the case. A minor or incompetent person may sue by a representative, such as a guardian, conservator, or other fiduciary. Specific rules apply to interpleader actions, class actions, and derivative actions. If you have a choice of plaintiffs, such as when you decide on a named plaintiff in a class action, select someone who has a compelling story to tell, who will do well at deposition and trial, and with whom you can work effectively.
Choose defendants strategically. Sometimes, the choice of defendants is obvious. But consider the following: Can you pierce the corporate veil? What about suing an individual who engaged in tortious conduct for a principal, as well as the principal? Have you joined all necessary parties? In the corporate context, is the action properly direct or derivative? If you seek interpleader or declaratory relief, have you included all interested and affected parties as defendants? For entities, do you know the proper legal name and not just the “d/b/a” so you don’t sue a nonexistent defendant? Do you have personal jurisdiction over all proposed defendants?
3. Analyze Jurisdictional Issues
You need to allege and establish both subject matter jurisdiction and personal jurisdiction. Other than admiralty jurisdiction, federal courts have (1) federal question jurisdiction if a cause of action arises under federal law and is sufficiently central to your claim; (2) diversity jurisdiction if there is complete diversity (no plaintiff is a citizen of the state of any defendant, with limited statutory exceptions), and the amount in controversy is at least $75,000; and (3) supplemental jurisdiction for claims that are so related to a case properly before the court that they form part of the same case or controversy under Article III of the U.S. Constitution based on a common nucleus of operative facts, with certain limitations set forth in 28 U.S.C. § 1367(b), (c), and (d).
Personal jurisdiction is the power of the court over the parties in the case. For a court to exercise power over a party, the party must have certain minimum contacts with the forum in which the court sits. Determine whether you have a basis to assert personal jurisdiction over the individuals and entities that you are considering as defendants. Take advantage of long-arm jurisdiction statutes to include out-of-state defendants, mindful that, to pass constitutional muster, you must allege and establish sufficient minimum contacts among the defendant, the forum, and your claims to comport with traditional notions of fair play and substantial justice.
Determine whether you have an option to bring the action in state or federal court. In addition, determine whether venue lies in more than one location. If so, make a strategic decision as to where to bring the action based on applicable law, convenience (you don’t want to encounter a forum non conveniensmotion), and court backlog.
4. Consider Causes of Action and Burden of Proof
Research statutory as well as common law causes of action. Consider all possible causes of action, but be strategic in deciding which you allege to avoid diluting your strong causes of action and getting mired in pleading practice, such as motions to dismiss, addressed toward weak ones. Obtain your client’s informed consent, preferably in writing, for any causes of action you could have brought but decided not to include. Also obtain your client’s informed consent, preferably in writing, before filing your complaint.
Allege facts sufficient to support each element of each cause of action. Each fact that you allege should support the theme of your case. Plead certain allegations with the required particularity, such as counts for fraud, mistake, and items of special damage. If you raise a constitutional challenge, comply with Federal Rule of Civil Procedure 5.1.
Don’t plead more than you need to. You assume the burden of proving each fact you allege. Keep in mind the more rigorous clear and convincing proof standard applicable to certain causes of action, such as intentional torts. As Abraham Lincoln cautioned, “[i]n law it is good policy to never plead what you need not, lest you oblige yourself to prove what you can not.” Letter from Abraham Lincoln to Usher F. Linder (Feb. 20, 1848), in Don E. Fehrenbacher, Lincoln: Speeches and Writings 1832–1858, at 177 (1989). However, you should also keep in mind that the burden shifts for certain causes of action, such as breach of fiduciary duty.
5. Use a Proper Format
The caption must comply with Federal Rule of Civil Procedure 10(a).
For the text, first, identify the parties, including facts sufficient to establish jurisdiction. Second, state the jurisdictional basis for your action, such as diversity or federal question jurisdiction. Third, set forth the facts applicable to all of your causes of action. Fourth, set forth each cause of action in a separate count. Fifth, list your requested relief. If you demand a jury trial, include it in your complaint even though you have another opportunity to do so no later than 14 days after the last pleading directed to the issue is served.
State your claims in numbered paragraphs, each limited as far as practicable to a single set of circumstances. You can incorporate by reference other allegations in the complaint.
You can also attach exhibits to complaints.
6. Comply with Drafting Rules and the Plausibility Requirement
Your complaint must be a short, plain statement of jurisdictional grounds, your
claims, and your demand for relief. Each allegation must be simple, concise, and direct. If parties have lengthy names, first identify those and then refer to them in a shorthand fashion in a way that is intelligible. Write in plain English. Heed Mark Twain’s advice by using “plain, simple language, short words, and brief sentences. . . . [D]on’t let fluff and flowers and verbosity creep in.” Writing, TwainQuotes.com, http://www.twainquotes.com/Writing.html (last visited Dec. 16, 2016).
Allege facts to satisfy the plausibility requirement of U.S. Supreme Court cases Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), Ashcroft v. Iqbal, 556 U.S. 662 (2009), and their progeny. You must allege sufficient facts, accepted as true, to state a claim to relief that is plausible on its face. A claim has facial plausibility when you plead factual content that allows the court to draw the reasonable inference that the defendant is liable for the misconduct you allege. Mere conclusory allegations will not suffice.
For complaint forms, read form books and search online legal research services’ databases providing such forms—but don’t blithely copy without thinking! You have the right to amend your complaint once within 21 days of serving it; thereafter, you can do so only with opposing party’s consent or the court’s leave. Under certain circumstances, you can even amend your complaint during and after trial. Federal Rule of Civil Procedure 15(c) governs whether such amendments relate back.
7. Consider All Available Types of Relief
If you allege more than one count, specify the count(s) pursuant to which you seek each form of relief. You can seek relief in the alternative, as well as different types of relief. Consider all available remedies—monetary, punitive, statutory, and equitable. Equitable remedies include, among other things, injunctions, specific performance, an accounting, rescission, declaratory judgment, and imposition of a constructive trust. At the end of your demand for relief, include a catchall, such as “such other and further relief as is just at law or in equity.” If you have a common law or statutory basis to recover legal fees for one or more but not all counts, keep time records accordingly so that you can readily allocate recoverable time.
8. Decide When (and If) to Commence Your Action
As soon as you learn sufficient facts and have analyzed potential causes of action, determine when the statute of limitations will run as to each. Keep in mind that such statutes toll under certain circumstances, such as when the parties have a tolling agreement, the automatic bankruptcy stay applied during the relevant period, a defendant fraudulently concealed a cause of action or could not have been served during the relevant period, or there is a basis for equitable tolling. Determining when an action is brought in the statute of limitations analysis depends on whether jurisdiction is based on diversity or federal question.
If the running of a statute of limitations is not imminent, consider seeking to resolve the matter by other means because litigation is expensive and disruptive for your client, your client may face counterclaims, and the outcome of litigation is always uncertain. Upon commencement of an action in federal court, your client will incur considerable up-front legal fees as you comply with the requirements of Federal Rules of Civil Procedure 16, 26(a), and 26(f), in addition to legal fees for you to do everything required to draft the complaint. Heed the advice of Abraham Lincoln: “Discourage litigation. Persuade your neighbors to compromise whenever you can. Point out to them how the nominal winner is often a real loser: in fees, expenses and waste of time. As a peacemaker the lawyer has a superior opportunity. . . . There will still be business enough.” Abraham Lincoln’s Notes for a Law Lecture, Abraham Lincoln Online, http://www.abrahamlincolnonline.org/lincoln/speeches/lawlect.htm (last visited Dec. 16, 2016).
9. Apply These Tips to Counterclaims, Cross-Claims, and Third-Party Claims
These tips apply to counterclaims, cross-claims, and third-party claims, all of which are essentially complaints that a defendant files against other parties. Certain counterclaims are compulsory (see Federal Rule of Civil Procedure 13(a)); others are permissive (Federal Rule of Civil Procedure 13(b)). Rule 13(g) governs cross-claims, and Rule 14 governs third-party claims.
Avoid making judicial admissions when filing these types of claims by alleging without admitting, e.g., “If the widgets were defective as plaintiff alleges, the cause of all alleged defects was the negligence of defendant Widgetmaster, and no alleged defects were caused by [INSERT CLIENT’S NAME].” Also avoid obfuscations—such as “Third Party Defendant agreed to indemnify Third Party Plaintiff for all claims Plaintiff asserted against Third Party Plaintiff”—by referring to parties by name.
10. Comply with Ethical Requirements
By signing the complaint, you represent to the court that you are not presenting it for any improper purposes; all of your claims are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law; and your factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery (“on information and belief” allegations). See Federal Rule of Civil Procedure 11(b).
Keywords: litigation, young lawyer, federal court complaints, drafting, tips, relevant facts, relief, jurisdictional issues, plaintiffs, defendants, burden of proof, causes of action
Stewart Edelstein, who taught clinical courses at Yale Law School for 20 years during his 40-year career as a trial lawyer, is the author, most recently, of How to Succeed As a Trial Lawyer: All the Essentials, Including What You Didn’t Learn in Law School (ABA 2d ed. forthcoming Jan. 2017). This article is the first in his “10 Tips” series.