You need to initiate a legal action on behalf of one of your firm’s clients. Of course your overall objective is to put the opponent on notice. But whether the action involves personal injury, breach of contract, wrongful death, or any other issue, your work needs careful forethought. What resources can you consult? What factors do you need to consider?
Specific pleading content and format requirements may vary by jurisdiction. For details, you can consult the Federal Rules of Civil Procedure, treatises, and other helpful online resources (see examples under Consulting Authoritative Resources below).
To help you get started, here are some guidelines:
Know the Issues and Facts Up Front
When you conduct as much informal discovery as possible before filing suit, your client’s position can be stronger. You may be able to obtain records and information from parties other than the potential defendant or its agents by making a written request. In some cases you may need a written authorization from the client waiving any privilege or privacy objections. If you need medical records, be sure to comply with Health Insurance Portability and Accountability Act (HIPAA) privacy standards.
If you cannot document facts critical to the complaint informally, your firm should consider filing a writ of summons and taking formal discovery for that purpose.
Identify the Parties
Your pleading will need to clearly identify the parties involved. How can you avoid missing or misidentifying anyone? Carefully review your materials and make the following determinations.
Who is the plaintiff? As a general rule, an action must be brought by and in the name of the real party in interest―an individual who can discharge a given right, obligation, or liability and control an action brought to enforce it. Exceptions may apply. For example, a statute or ordinance may designate a specific person who must sue. In some cases, third-party beneficiaries and subrogees may be able to sue in the name of the contracting party who created the interest being enforced.
Against whom is the plaintiff taking action or filing suit? Persons or entities that can properly be sued are specified under the rules of civil procedure and jurisdictional law. Jurisdictions may have special rules regarding who may sue and be sued in actions by or against a minor, an incompetent, a state or commonwealth, a political subdivision, a partnership, an unincorporated association, or a corporation—or in wrongful death actions or class actions.
You may already have received a list of persons and entities for this action from the attorney who gave you the assignment. In addition, your discovery materials may help identify involved parties.
For clarity in your pleading, you should identify each party by name, the capacity or businesses in which the individual is engaged, and current or last-known residential addresses or places of businesses. You can use business and public records’ resources on the LexisNexis® services at www.lexis.com to help verify party information.
Determine the Content and Format of Your Pleading
The substance of the complaint depends on the specific facts and elements of the plaintiff's cause of action. How much information should you include? Most rules today require only a short statement of the case to put the defendant on notice regarding the issues of the case and what the plaintiff is seeking to prove.
Include each claim against each party in a separate count. It is not necessary to repeat each factual allegation in each count; you can incorporate prior facts by reference.
If your case involves fraud, you must provide all details of the alleged fraud. Claims under the Racketeer Influenced and Corrupt Organization Act (RICO) must expressly provide information on the predicate acts necessary to invoke a RICO claim.
Be sure to use an appropriate form and complete the captions as required by applicable law. In many cases, the law permits you to abbreviate captions in subsequent pleadings.
Consulting Authoritative Resources
Need to know more? Here are some helpful resources available on the LexisNexis services. (Some resources may involve additional charges, depending on your subscription.)
Bender’s Federal Practice Forms®
This comprehensive set of civil and criminal forms complies with recent amendments to controlling procedural rules and with the standards of practice in federal courts generally.
Moore’s Manual: Federal Practice and Procedures
This convenient abridgment of the master treatise on federal practice discusses the Federal Rules of Civil Procedure, Federal Rules of Evidence, Federal Rules of Appellate Procedure, and the Rules of the Supreme Court.
Bender’s Forms of DiscoveryTreatise (Volumes 11-16)
This litigation guide offers in-depth discussion and practice materials for discovery methods including: Federal Rules of Civil Procedure 26 through 33, Federal Rules of Civil Procedure Rule 34, an expanded digest of Items Sought under FRCP 34 and 45(d), FRCP 35 and 36, FRCP 37 and 45(d), criminal discovery, and an in-depth discussion of discovery in complex litigation.
The LexisNexis® Editorially Selected Briefs, Pleadings & Motions Collection
This collection can help you review how similar litigation developed, study how other legal professionals have framed arguments on your topic, and find template models for your own filings. These resources are easy to access via the LexisNexis services at www.lexis.com or via LexisNexis® Total Litigator at www.totallitigator.com.