How to make your pleadings awesome.
One of my clients (all my clients are other lawyers) recently emailed me with a draft of his client’s amended answer and asked me, “How do I make these awesome?”
In my work as an appellate attorney, I long ago stopped handling drafting or editing pleadings (e.g., complaints, answers, discovery demands and responses). But I have learned a few things about pleadings from the bird’s eye perspective I get when handling appeals and substantive motions because I see the entire case from the rear end, when pleadings have already landed, been digested, and led to various consequences (which process I see by reading what is called “the record”).
Based on what I’ve learned over twenty years, here is what I told my client about how to make their clients’ pleadings awesome:
1. Start from the ground up. Don’t even start to draft a pleading without an exhaustive interview of the client to determine the who, what, when, where, and why of the facts. Find out what documents or other evidence supports those facts. And read all the documents—the evidentiary key to your client’s case could be in there. I have seen so many cases lost at the pleading stage because an attorney didn’t bother to read all the relevant documents, which caused them to miss—and sometimes waive—the best argument.
2. Craft a theory of the case before drafting. This requires some research up front because—unlike in appeals where we get to argue for changes in the law—at the pleading stage you are bound by what the law says in statutes and interpreting case law.
Too many lawyers throw a legal doctrine into their pleadings without having any idea whether the facts support, contradict, or eliminate the doctrine—apparently hoping that if they throw enough words at the proverbial pleading wall, some of them will stick to a viable legal theory. But if you articulate a plausible theory before you start drafting, the pleadings will be much more robust and—as my client wished—awesome.
3. Organize the facts around your theory. Everyone knows that organizing arguments into a logical sequence is crucial in drafting an appeal or substantive motion brief. Here is what you need to understand: organization is essential at every stage of your client’s case, including the pleadings. Don’t throw in every fact just because you have it. Present the facts in a logical sequence that tracks the legal doctrines you are basing the case on.
4. Be precise. I can never understand why some lawyers don’t bother to proofread their client’s pleadings before filing them. I guess they think typos don’t matter because there is plenty of time after a pleading to correct the record. What some lawyers don’t understand, though, is that sloppy drafting makes it easier for your adversary to misstate your argument in a motion to dismiss. I am often called upon to rescue a case from dismissal where a court did not see a compelling claim because the complaint was poorly drafted. Save your client some money (and save yourself a headache) by drafting a pleading with care.
5. Be obscure, clearly. This is a famous quote by American writer and essayist EB White, who recommended that writing be both creative and clear. I follow this advice religiously in my appellate writing. It applies to pleadings as well. Pleadings are the opening salvo in a litigation battle that could last years. It’s worth the time to make it awesome.
Though I don’t handle drafting or editing pleadings anymore, if you are an attorney who needs your clients’ appeal or substantive motion to be awesome, contact me here to schedule a time to discuss the case.
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