Pleadings

Pleadings

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Pleadings. Pleadings are the formal
documents filed in a lawsuit that inform parties of their claims and defenses
that they have, that they’re claiming to have against each other. Now, there are a
few, couple concepts that we need to talk about first. The first one is “due process
of law.” We have this notion that it’s it’s not really fair to to sue someone
without telling them why you’re suing them. Another way to say that is that’s
one aspect of due process of law. Due process of law is fairness.
It’s the proceedings that have to be followed before someone can be denied
life, liberty, or property. Due process of law concept applies in both civil and
criminal matters, in all areas of American jurisprudence. And so
pleadings are a very, very important part of that, because it’s through the
pleadings that we notify the other side of our particular claim or defense.
“Joinder of parties.” This is the notion that in a lawsuit, we try to include
as many as is practical, as many claims and as many parties in the same lawsuit,
so that we can dispose of those claims, numerous claims, at the same time just to
be more efficient and avoid waste and duplication. Joinder of parties. What types of pleadings do we have? First
of all we have what’s known as in, depending on your jurisdiction, the
“petition” or “complaint.” In many states and under the Federal Rules the pleading
that’s filed by the by the plaintiff is called the “complaint.” In some states like
Texas state courts, it’s called the “petition.” It’s filed by the plaintiff, and
I’m using the “pi” sign here to indicate plaintiff. That’s lawyer shorthand language.
The “answer” is another pleading. The answer is filed by the defendant
indicated by the “delta” sign. And the defendant files the answer to contest
the claim against them that’s been stated by the plaintiff. “Counterclaim.” The
the defendant may say, “Well, I have a claim against you, plaintiff.” And so it’s
in this counterclaim that the defendant states its claim against the plaintiff.
“Third party petition.” The defendant may say, “You know, this this whole thing is
really someone else’s fault that’s not in the lawsuit. It’s a third party that
caused this accident or that should be held liable.” So that, so a third party
action is filed through a third party petition or complaint, where the defendant
can bring someone that they say is liable, bring that person into the
lawsuit. Cross claim. Two parties on the on the same side of the lawsuit may have
a claim against each other. If you’ve got two defendants that have been sued by
the plaintiff, one defendant may turn around and sue the co-defendant and
say, “No it’s really your fault.” That is a cross claim. Then we have
something called an “intervention,” and that’s where there’s a third party on
the outside of the lawsuit, that we’re going to call the “intervenor.” That
intervenor wants in on the lawsuit to protect a particular right or interest
that they happen to have. So that would be an intervention. Then we have
something that’s you don’t see a whole lot, but it’s out there it’s called an
“interpleader,” and here the the plaintiff or the person that’s
filing this interpleader, this type of action, is saying, “I’m potentially
responsible to multiple people and they’re mutually exclusive. I’m either
liable to “A” or I’m liable to “B”. I don’t know which one. I don’t want to pay off “A”
and be liable to “B”, so I’m going to file an interpleader and and we’ll have a
lawsuit to figure out to whom I am I am liable.” Don’t see that a whole lot but
it’s out there. So, what does this mess look like if everybody is suing
everybody else? Now, not all lawsuits are going to be this complicated.
Most lawsuits are going to be limited right here to the plaintiff suing one
defendant, maybe a second defendant. And so I’ve noted this original
claim in blue with the complaint or depending on your your jurisdiction the
petition being filed by plaintiff against a defendant 1 and in this
scenario, this is defendant 2. But defendant one here says, “Wait a minute,
I’ve got,” let’s say this is an auto accident and so plaintiff files against
the commercial truck driver that that they say caused the accident, and the
company he was driving for. And then the driver says, “Wait a minute, you, plaintiff,
you caused the accident, and I’m injured. “So I’m going to counter-sue you for my
injuries.” Meanwhile the the owner of the truck, the
trucking company they may say to their driver, or former driver, let’s say they
fire him, and they say, “You really caused the accident you were drunk while you
were driving. We’re filing a lawsuit to recover the damages to our vehicle.” You
know you can make up all kinds of scenarios, but I’m just giving you one. As
all these people are filing their claims against each other, notice that the
person against whom the claim has been filed is filing an answer back. Plaintiff
files against defendants one and two, they both
file an answer. Defendant one files a counterclaim, it’s assumed that
plaintiff is going to contest that, so you generally don’t see an answer going
back, but you may, depending on your jurisdiction. The cross claim, there may
be an answer coming back here to deny that. Defendant says, “Wait a minute. The
accident was really caused by the mechanic who didn’t properly fix
the brakes. So we’re going to sue the mechanic over here,” bring in this third
party through a third party complaint. “Well the third party, once they’re served
they’re going to file an answer and go back. You may or may not have someone on
the outside that’s maybe another motorist that was injured or someone
that was injured in the accident. They say, “Hey I want in on this too,” and they
may move to intervene. And then of course in response to that whoever
they’re suing is going to be filing an answer, probably a denial of some sort,
back to them. So it can be very complicated, but rarely is. Parts of a
petition, or a pleading. The top of a pleading, papers that are going to be
filed in court, that includes discovery matters, but certainly for pleadings, the
top of it is what we call the “caption.” And the caption will have several components
to it. The first is going to be the “style.” The style of the case that that
announces or labels the parties, “John Smith versus Bill Jones.” Or if it’s a
probate matter, “In the Estate of John Smith.” Something like that. So that’s going to
be the style of the case. It’s also going to have the “docket number,” sometimes
called the “cause number” or the “case number.” But that’s going to be listed,
after it’s been filed of course, because it will be the court clerk that assigns
a docket number to it. So as we prepare these in the law office obviously we
don’t know what the docket number is going to be and we just leave that blank.
And same thing for the court. We generally don’t know what
court it’s going to be filed in unless you’re in a very in a small or rural
area where there’s really only going to be one court where you’re going to be
filing. But the court designation is also going to be in that caption. Then we have
a “body” of the the complaint. And here is where the “cause of action,” the reason for
the lawsuit, the basis for the lawsuit, is explained. And it’s going to include
several, that body is going to include several components. And many
jurisdictions, particularly federal court, and many state courts, will require the
the court’s jurisdiction or the basis for the court’s jurisdiction to be set
out in the pleading: why you’re filing the lawsuit at that, in that particular
court or that type of court. The claim is to be stated in plain language. No fancy
“legalese” is allowed. And some judges have their own local rules that even make
that more simpler and more to the point. Relief sought. Do you want money damages?
What kind of money damages? Compensatory? Exemplary? What do you want? You want an
injunction? That will be set out in the body. And we have two types of pleading
here. We either give enough we give all the facts that are needed to prove our
case, and that’s called “fact pleading,” or we we simply plead or give notice of
sufficient facts so that the opposing party knows what we’re talking about.
Most jurisdictions follow “notice pleading.” It’s much shorter. And then the
last thing in the pleading is frequently called the “prayer” or the request for
relief, demand for judgment. In the many jurisdictions it may commence with the
word “wherefore, plaintiff requests” such-and-such.
Okay and that’s going to be the last paragraph of the pleading. A word about the parties. The parties, we
know, as we’ve said already, the plaintiff brings the lawsuit. The defendant is the
person that is being sued for the alleged wrongdoing. That’s the obvious stuff. But
let’s talk a little bit further here, because the plaintiff has to be a party
in real, a real party in interest. They have to have a right under the law to
sue. They have to have what we call “standing to sue.” That means they either
have suffered, or will suffer a real or direct injury over the alleged
wrongdoing. And then the parties have to have capacity. They cannot be an
incapacitated person that’s filing or defending the lawsuit. If if someone is
incapacitated or suffering under in some some sort of incapacity but whether it
be because of lack of age or lack of mental capacity, that person has to be
represented either by a court-appointed guardian, or what we call a “next friend,”
someone who has stepped up and said I will represent you, and which of course
the actions of the next friend will be, particularly any any settlements, will be
subject to court scrutiny since that person has not really been appointed as
a guardian as such. And then we’ll have attachments that are frequently attached
to the pleading. You may see a “verification.” The verification is a brief
affidavit that states that the facts stated in the in the pleading are true
and correct. Whether that pleading is a petition,
complaint, answer, a counterclaim, if you need a verification under the law that’s,
that is frequently found there. “Exhibits.” It may be useful for the party filing
the the pleading to attach a copy of the contract or the copy of the deed, if
that’s what is the subject of the litigation, or maybe
it’s a promissory note that hasn’t been paid. So it’s not unusual to see
attachments such as those included in the pleading. “Certificate of service.” The
party or the the party’s lawyer is going to sign a very brief statement that says
“This is to certify that the foregoing (whatever pleading it was) was
transmitted to, delivered to, sent to, all counsel of record, or all parties, or
something to that effect, certifying that yeah we sent this to everybody. Everybody is getting this.
Proposed TRO or injunction. If a party is seeking a TRO, then it’s quite normal
to attach the proposed TRO, a temporary restraining order, or the proposed
injunction, to the petition or complaint as case may be. And then of
course what may be called the “show cause order” or a “notice of hearing,” an order
from the court or the clerk or a notice from the clerk, or maybe even just from
the lawyer, saying “A hearing will be held on this”, or if it’s a show cause order, an
order by the judge saying, “You are ordered to appear and show cause why the
court shouldn’t do, take certain actions,” particularly see that sort
thing with regard to a TRO. And that’s a view of what pleadings are all about.

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