As a lawyer that focuses exclusively on appeals and substantive motions, I have read hundreds of complaints in state and federal courts. And I have seen quite a few mistakes that—in hindsight—were fatal to a client’s claim or theory of the case. The mistakes can be categorized into a few broad categories, but in this post I want to discuss the biggest one: saying too little or too much in your complaint.
Saying too little means you are vulnerable to dismissal in a pre-answer motion; saying too much unnecessarily gives your hand away and muddies the point you are making in your complaint, which is the opening shot in your litigation (too many attorneys dismiss the crucial step of crafting a careful complaint).
What to do? I once heard a pithy piece of advice from a seasoned litigator regarding complaints: be hidden clearly.
What does it mean? Plead every fact that is necessary to state your claim clearly and survive a pre-answer motion to dismiss. But keep the evidence that proves your pleadings close to your chest. Share the facts but not the supporting evidence.
This method works because most jurisdictions—New York and federal courts especially—follow a “notice pleading” standard for complaints, which requires you to put your adversary on notice of the claim you are asserting against them through simple statements of facts. You are not required to attach evidence to your complaint to prove the facts. That part comes later, in discovery, after which your evidence will be tested in a motion for summary judgment. At the pleading stage, you only have to state the facts you intend to prove (be careful with this and only plead facts you are able to prove or you expect to be able to prove after discovery, otherwise your credibility will be attacked).
If you only have to state the facts underlying your claim, why would anyone submit evidence with their complaint? Lawyers sometimes think they are getting an advantage or speeding the process along. That might be true in some cases, like when you think you might be able to push a settlement after filing a complaint.
In most cases though, the best course is to just state the facts clearly and keep the evidence hidden for now.
What facts should you state? Well, that depends on the claim/cause of action you are asserting and the theory of your case. I will cover this topic in a later post because I regularly see huge errors in this area as well.
Need to save your client’s claim from a motion to dismiss? Contact me for my help. I can also help you draft a motion to dismiss if your adversary’s complaint is lacking required pleadings.
