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Importance of Pleadings
I have written about this previously, and I'm going to borrow what I wrote and place it below, then make any comments I may have after all these years:
My Prior Article, published at Article Entitled "Drafting of Civil Complaint: The Highest Leverage Obtainable in a Lawsuit" is set forth in its entirety immediately below:
Drafting of Civil Complaint: the Highest Leverage Obtainable in a Lawsuit
- Type of Case for Which Principle is Applicable - The virtual law firm principle that "the drafting of a civil complaint is the highest leverage obtainable in a civil lawsuit" does not apply to each and every civil lawsuit. It applies to difficult civil lawsuits in which the rights of the respective parties are anything but clear. Thus, if a bank is suing a customer for non-payment of a loan, the lawsuit is not one where the principle would ordinarily apply. However, in a situation, for example, where a priest is suing his church for a "divorce", the outcome of the case will be quite dependent on the quality and inventiveness of the complaint. For such a complaint as filed in the New York Supreme Court, where a priest is suing his church for a divorce, see Priest Divorce.
- Economic Analysis - The drafting of the "Priest Divorce" complaint took about 10 hours or $2,500 in effort, assuming an hourly rate of $250 (2012 rate). Novel suits often are seeking large sums of money, and involve substantial litigation effort after the complaint has been drafted, filed and served on the defendants. It would not be uncommon in a typical novel civil lawsuit for a complaint created in 10 hours to result in 100 to 1,000 hours of total work by the plaintiff's lawyer. This translates into leverage of 10 to 100 times the amount of time spent in drafting the complaint, or that the $2,500 complaint is going to result in $20,000 to $200,000 in work for the plaintiff's lawyer (and more work for the plaintiff himself/herself, increasing the leverage).
- Suggested Course of Action This foregoing analysis cries out, I think, for a rethinking of the way that a novel lawsuit is commenced and conducted. It seems clear that the pleadings should be drafted by a lawyer who has experience and skill in the preparation of what I'll call inventive pleadings, a term which refers to the ability to call upon appropriate legal doctrines even when they are not obvious to most persons, as distinct from knowingly conjuring up non-existent facts to support an action which does not exist under any legal theory if the true facts were pleaded.
- Another Example of Inventive Pleadings - A plaintiff (to be) claimed that someone had improperly found $1 billion in lost gold treasure by obtaining a copy of sidescan sonar data from the institution which had made its research vessel available for the lost-treasure search. Among 12 claims (all of which were upheld by the federal district court) was a claim for copyright infringement. The sonar printouts were filed with the U.S. Copyright Office as a treasure map, and the copying and transmittal of such data was alleged as a copyright infringement.
- Rights Aren't Enforceable in Absence of Appropriate Articulation Lawyers and others cannot know all the rights they or others have because the amount of law is too vast and complex. When a prospective client tells a busy lawyer a tale of woe outside of the lawyer's field of interest or his/her experience, the lawyer may not be able to see the rights involved (assuming there are identifiable rights) for many reasons, such as the belief that the case is too complicated (for the lawyer), a failure to get to the heart of the problem which would point out the rights involved; desire to get rid of the prospective client as soon as possible and turn to other, pressing business; belief that the prospective client cannot pay the legal fee which the lawyer would require (since most lawyers don't work on a contingent-fee basis for any or certain categories of cases), and various other possible reasons which generally may not be articulated to the prospective client.
- Proposed Solution for Lawyers and Clients - It is being suggested (by attorney Carl E. Person, creator of the LawMall) that lawyers and prospective clients who are considering the commencement of a lawsuit involving the need for inventive pleadings refer the matter out to a lawyer who can prepare the complaint for review and change by the forwarding attorney and/or client. The expenditure of say $2,500 at this stage should have its statistical rewards later in the case, by giving the attorney and client a stronger chance of having the case be heard instead of dismissed. With the possibility of putting in $20,000 to $200,000 in legal work in the case, it would seem shortsighted not to spend $2,500 to protect such a large forthcoming investment.
- Why Would Attorneys Limit Themselves to Preparing Inventive Pleadings? - Why would an attorney be willing to draft inventive pleadings and not want the whole case? Let me give you the answer with a question. Why would an artist like to sketch the outline of his next painting more than filling in the colors once the painting is envisioned in his mind and sketch? The answer is that preparing an inventive complaint is a lot more fun than preparing such a case for trial or trying the case. Also, I have a much higher value to a case in drafting the complaint than in any other aspect, from the standpoint of hours spent. Of course, when a lawyer spends 1,000 hours on a case, there will be moments of great insight when a case might be won or lost on an insight taking only a few second to recognize and appreciate. But the amount of time spent (1,000 hours) to be at this period of a few seconds means that the lawyer is spending the vast amount of his time with an under-utilization of his skills, and perhaps the client is paying too much money for (or really can't afford) those few seconds of insight.
- Availability of Attorney Carl E. Person to Prepare Inventive Pleadings - Attorney Carl E. Person (founder and developer of LawMall) is willing to (try to) prepare inventive pleadings for a negotiated fee. To discuss the fee, just e-mail a letter to email@example.com. or telephone 212-307-4444, or fax to 212-307-0247. Your communication will be privileged, of course. Consultation will be at no charge unless and until an agreement is reached. Lawyers are invited to use the services of Carl E. Person to prepare inventive pleadings in furtherance of the virtual law firm concept, which is, loosely, a lawyer who puts together for a given matter only the human resources which are needed for that one case, which reduces overhead and other costs of handling the legal matter. To see a copy of the c.v. (resume) of Carl E. Person, click on Carl E. Person C.V.
- Availability of Other Attorneys to Prepare Inventive Pleadings - LawMall affords attorneys the opportunity to let prospective clients know about their respective practices, and any attorney who feels that he/she is able to prepare inventive pleadings should so advertise this skill or interest by use of the term "inventive pleadings" in their part of LawMall. Once this is done, they will be given a hypertext link below, to enable LawMall users to click to their home-page advertisement.
- Caution - Lawyers and prospective clients are cautioned in various respects concerning inventive pleadings. No lawyer should create a case where none exists, and for a lawyer to do so would be unethical and probably illegal under certain circumstances. Lawyers may claim they can prepare inventive pleadings (as the term has been defined above) but may not be as able to as they think. Even the author of this LawMall home page (Carl E. Person) has his share of losses, which he will tell you about, as well as his share of wins, which he will also tell you about, as well as cases which are still in progress (and the outcome is not yet known). It is up to you, the lawyer and prospective client to ask enough questions to become satisfied that the lawyer who would prepare your inventive pleadings is up to the task, which admittedly is sometimes difficult to determine. Good luck. I do think the effort to split off the work of pleading preparation is very valuable, and perhaps should be used in the legal field in similar fashion to the second opinion which doctors and patients look for with difficult medical problems in the medical field.
My comments on the above article: I wrote the above article about 10-15 years ago, and haven't made any changes. I still believe that pleadings are the most important part of a plaintiff's case (when the case involves major litigation), and "inventive pleadings" are part of the process of careful pleading preparation.
I find that in major litigation a great emphasis is placed upon pleadings and if pleadings can survive various motions to dismiss, the case reaches an important milestone for litigation, because the next step is getting into lengthy, costly discovery to prove the allegations, discovery that ordinarily reveals secrets that the opposing party doesn't want revealed. Although the discovery is generally produced under agreements for keeping the information secret, the information leaks out in a variety of ways, including by presentation at trial and upon appeal. Settlement is a useful tool to stop the disclosure of these secrets, often the secrets upon which the corporate fortunes depend. For example, various major corporations are operating at a multi-billion dollar deficit, because they are getting charged illegally low prices in violation of the nation's antitrust laws. Discovery will show this allegation to be correct. What would you do to prevent the secret from being revealed? Would you pay 1/10th of the injury you caused to the plaintiff to settle the case or would you risk losing your multi-billion-dollar company?
Defendants are not required to be as artful with their pleadings (unless counterclaims are involved), but they have to be complete, to take into account various defenses that might be applicable, and allege them all, including the time-honored defense "Plaintiff fails to state a claim upon which any relief may be granted".