pleading

In law as practiced in countries that follow the English models, a pleading is a formal written statement filed with a court by parties in a civil action, other than a motion. By stating what claims and defenses are at issue, pleadings establish the issues to be decided by the court.

Pleading in England and Wales is covered by the Civil Procedure Rules (CPR).

Pleading in United States federal courts is covered by the Federal Rules of Civil Procedure.

Pleading in the courts of the individual states is covered by the rules of civil procedure either promulgated by the respective state Supreme Courts, or by statute by the respective legislatures.

Examples of pleadings

In the United States, a complaint is the first pleading filed by a plaintiff which initiates a lawsuit. A complaint sets forth the relevant allegations of fact that give rise to one or more legal causes of action along with a prayer for relief and sometimes a statement of damages claimed (an ad quod damnum clause). In some situations, a complaint is called a petition, in which case the party filing it is called the petitioner and the other party is the respondent. In equity, sometimes called chancery, the initial pleading may be called either a petition or a bill of complaint in chancery.

In England and Wales, the first pleading is a Claim Form, issued under either Part 7 or Part 8 of the Civil Procedure Rules, which sets out the nature of the action and the relief sought, and may give brief particulars of the claim. The Claimant also has the option, under Practice Direction 7A.61 to serve Particulars of Claim (a document setting out the allegations which found the cause of action) within 14 days of issue of the Claim Form.

When used in civil proceedings in England and Wales, the term "complaint" refers to the mechanism by which civil proceedings are instituted in the magistrates' court ^[1] and may be either written or oral.

A demurrer is a pleading filed by a defendant which objects to the legal sufficiency of a complaint. At common law, the demurrer was the only pleading which in itself required an immediate ruling on its content from the court, and which was capable of immediately disposing of a case, with the inevitable result that demurrer practice came to resemble motion practice. Many common law jurisdictions therefore went to a narrower understanding of pleadings as framing the issues in a case but not being motions in and of themselves, and replaced the demurrer with the motion to dismiss for failure to state a cause of action or the application to strike out particulars of claim.

An answer is a pleading filed by a defendant which admits or denies the specific allegations set forth in a complaint and constitutes a general appearance by a defendant. In England and Wales, the equivalent pleading is called a Defence ^[2].

A defendant may also file a cross-complaint or third-party complaint as well to bring other parties into a case by the process of impleader.

A defendant may file a counter-claim to raise a cause of action to defend, reduce or set off the claim of the plaintiff.

Systems of pleading

Common law pleading

Common law pleading was the system of civil procedure used in England, which early on developed a strong emphasis on the form of action rather than the cause of action (as a result of the Provisions of Oxford, which severely limited the evolution of the common law writ system). The emphasis was on procedure over substance.

Even worse, law and equity evolved as separate judicial systems, each with its own procedures and remedies. Because the list of types of claims eligible for consideration was capped early during the development of the English legal system, claims that might have been acceptable to the courts' evolving sense of justice often did not match up perfectly with any of the established forms of action. Lawyers had to engage in great ingenuity to shoehorn their clients' claims into existing forms of action.

Code pleading

Code pleading was first introduced in 1850 in New York and in 1872 in California, and eventually spread to 22 other states. Code pleading sought to abolish the distinction between law and equity.^[3] It unified civil procedure for all types of actions as much as possible. The focus shifted from pleading the right form of action (that is, the right procedure) to pleading the right cause of action (that is, a substantive right to be enforced by the law). Under code pleading, the required elements of each action are supposed to be set out in carefully codified statutes.

Code pleading required the pleading of "ultimate facts." This means that to plead a cause of action, the pleader has to plead each element and also allege specific facts which, if proven with evidence at trial, would constitute proof of that element. Failure to provide such detail could lead to dismissal of the case if the defendant successfully demurred to the complaint on the basis that it merely stated "legal conclusions" or "evidentiary facts."

Code pleading was criticized because many lawyers felt that it was too difficult to fully research all the facts needed to bring a complaint before one had even initiated the action, and thus meritorious plaintiffs could not bring their complaints in time before the statute of limitations expired. Code pleading has also been criticized as promoting "hypertechnical reading of legal papers".^[4]

Notice pleading

Notice pleading is the dominant form of pleading used in the United States today. In 1938, the Federal Rules of Civil Procedure were adopted to govern civil procedure in United States federal courts. One goal of the Federal Rules of Civil Procedure was to relax the strict rules of code pleading. However, each state also has its own rules of civil procedure, which may require different or stricter rules in state court.

Fact pleading

Louisiana, a state that derives its legal tradition from the Spanish and French (as opposed to English common law), employs a system of fact pleading wherein it is only necessary to plead the facts that give rise to a cause of action. It is not necessary even for the petitioner to identify the cause of action being pleaded. Mere conclusory allegations such as "the defendant was negligent" are not, by themselves, sufficient to sustain a cause of action.

Other states are also fact-pleading jurisdictions. Illinois, for example, requires that a complaint "must assert a legally recognized cause of action and it must plead facts which bring the particular case within that cause of action."^[5]

Alternative pleading

In alternative pleading, legal fiction is employed to permit a party to argue two mutually exclusive possibilities, for example, submitting an injury complaint alleging that the harm to the plaintiff caused by the defendant was so outrageous that it must have either been intended as a malicious attack or, if not, must have been due to gross negligence.

See also

• motion (legal)
• motion for leave
• prima facie
• general denial
• negative pregnant
• further and better particulars

References

1. ^ s.51 Magistrates Court Act 1980
2. ^ Civil Procedure Rules, 15.2
3. ^ e.g., Hurwitz v. Hurwitz, 78 U.S. App. D.C. 66, 136 F.2d 796, 799 (1943)
4. ^ United States v. Uni Oil, Inc., 710 F.2d 1078, 1080-81 n.1 (5th Cir. 1983)
5. ^ Teter v. Clemens, 112 Ill. 2d 252 (1986)

External links

• Federal Rules of Civil Procedure