When you finally get to trial, your ultimate goal is to prove your client’s version of the case is the correct one. This turns, of course, not just on the facts and law but also on the pleadings filed in the case.
Clients want their stories told compellingly. Judges develop first impressions—good or bad—based on the clarity with which parties state their positions. Adversaries scour them looking for fatal oversights, some that merit immediate dismissal and others that remain dormant until opportunities to correct them pass.
Effective pleadings require much more than shaping either the alleged facts to prevailing legal principles, or the legal principles to the alleged facts. Most, if not all, procedural rules require a clear statement of facts warranting the relief sought.
In Pleading Your Case, Janet S. Kole seeks to identify “issues arising in the context of pleadings so that you know what you have to think about when crafting a complaint or a response to a complaint.” For the most part, she accomplishes her goal. Pleading Your Case identifies complex issues that arise at the beginning of litigation. It includes practice pointers for how to address them as part of a persuasive pleading.
Many young lawyers tasked with drafting a complaint may not know either where to begin, or which critical, preliminary questions to ask a client or witnesses. (See page 56, “Sometimes Clients Lie.”) From the very first chapter, appropriately titled “Before You Begin,” Pleading Your Case provides a primer on what lawyers should do before making the first keystrokes of a pleading. For example:
- Who acted against your client? (What parties should I sue?)
- What did they do? (What harm did your client suffer, and are there theories of recovery for that harm? What are my remedies?)
- Where did it happen? (Where is jurisdiction and where is venue proper?)
- When did it happen? (Is there a statute of limitations problem?)
- Why did the defendant act the way he did? (Are there defenses?)
Stylistically, the book has the look and feel of a handy pocket guide. It includes convenient and thorough checklists that provide a backstop for those looking to ensure the sufficiency of a pleading.
Visually, key concepts—for example, “Remedies,” “What Are Your Defenses,” and “Please Judge, May I Have Attorneys’ Fees?”—are set off in boxes. This adds to the “quick reference” feel of the book, and will likely prove of particular moment to younger lawyers.
“Before You Begin” also highlights some critical issues that may not frequently arise in everyday practice. For example, some statutes or causes of action require pre-suit steps before you can file a complaint or a response.
For instance, although many lawyers may not often file for recovery under the federal Resource Conservation and Recovery Act, filing without giving notice to the proper individuals and entities (including, but not limited to, the President of the United States) can be fatal to a client’s claim. This is a good caution.
While providing invaluable guidance on constructing complete and thorough pleadings, Pleading Your Case comes up short on the mechanics of crafting what the author refers to as “wet” or “juicy” pleadings. The author does make the important point that stilted legalese detracts from the “brief novel” that a pleading should provide the Court, the other side, and (where there is interest) the public. She also reminds readers about the value of storytelling. Devoting further discussion to the manner in which they can craft, support, and convey those stories—or better yet—adding a checklist of tips to create “wet” pleadings would improve the book.
That aside, the book is a helpful addition to one’s reference library regardless of the reader’s years of practice. It should prove an especially useful tool for the young litigator.
Brian A. Zemil is an associate editor for Litigation News.
Copyright © 2011, American Bar Association. All rights reserved. This information or any portion thereof may not be copied or disseminated in any form or by any means or downloaded or stored in an electronic database or retrieval system without the express written consent of the American Bar Association. The views expressed in this article are those of the author(s) and do not necessarily reflect the positions or policies of the American Bar Association, the Section of Litigation, this committee, or the employer(s) of the author(s).