While the job of a motion is to persuade a judge to rule in your favor on a single issue, the purpose of writing a pleading is to make allegations of fact clear to both the court and the opposing party.
The first thing most parties see in a lawsuit is a pleading in the form of a complaint. Other pleadings include the answer, affirmative defenses, and counterclaim. You use pleadings such as these to assert your claim or defense.
Pleadings are, in fact, the bricks that lay the foundation of evidence. They detail the facts upon which a claim or defense rests. You’ll spend much of your time in discovery collecting evidence to support or oppose the allegations or defenses in one or more pleadings. So writing a pleading is one of those big things in litigation that you need to get right.
Below are some tips for writing effective pleadings.
Know Your Audience
Though your judge will eventually see your claims or defenses, your first audience for a pleading is your opponent, who must ferret out your allegations and respond to them with allegations and defenses of their own. So, focus on making your allegations or defenses rock solid. Give your opponent or his attorney something to whine about with your pleading.
Know Elements and How to Plead Them
Have you ever wondered why your case was dismissed or your affirmative defenses were struck? It could be that you didn’t allege or support all the elements of your claim or defense. Elements are the things required to prove your claim, counterclaim, or affirmative defense.
Here’s an example. Let’s say you have an injury claim based on negligence, and the elements of negligence are (1) a duty, (2) a breach of duty, (3) an injury, and (4) causation. In your complaint, you’ll allege that the defendant, as a homeowner, owed you a duty of reasonable care. He breached that duty by letting people dance on his roof, which caused a rock to fall off and pop you on the head, causing your injury.
Those are the allegations or facts in the complaint, and they match up perfectly to the elements you must prove. Allegations that match up with the elements of a claim are unlikely to be dismissed on the grounds of failure to state a claim.
The same is true for counterclaims and defenses. Every single affirmative defense you assert needs to allege facts that match up with the elements for that affirmative defense. If they don’t, you risk having them struck.
Refine Your Point
A long-winded pleading is likely to lack a discernible point, and you don’t want your purpose to get lost in a maze of fancy words. So know your point and get to it quickly. The quicker you connect the dots, the more authentic your document will be.
Once you’ve set out your allegations and matched them up to the elements of a claim or defense, stop. No matter how skinny the document looks, shut it down. Leave the body of your document alone.
To ensure your pleading doesn’t contain information that isn’t absolutely necessary, go through your document a few times and remove unnecessary words and allegations.
Give it a Meaningful Structure
There are two components to “structure” in a pleading. One is the look of the document. Your pleading should have the look of other case documents and should adhere to statutory guidelines.
The other component of structure is the actual laying down of words in the proper order. When writing a pleading, you want to make the flow logical. A chronological retelling of the falling rock scenario in the previous section, for instance, is better than a willy nilly telling with extra loops.
The structure of the documents you write have an impact on the way a judge perceives you. Proper structure is perceived as credible, so before you start writing a pleading, determine what should be included and which points should precede others.
Simplicity over Complexity
When writing a pleading, stay away from jargon and complicated technical words, especially those you don’t know the real meaning of. Rather than giving your allegations weight, they weigh them down and jeopardize your credibility.
The best way to write a powerful pleading is by expressing a complex subject in simple terms, a talent successful lawyers possess. Use simple and clear language that is appropriate for the point you’re trying to make.
Use Appropriate Headings
The use of headings is often a confusing decision when you’re writing. Here’s a great rule of thumb, if using headings is likely to help the judge understand your claims or defenses, use them. If they help you gain ownership of the case or highlight the important parts of the case, go for it. Conversely, if they add nothing to your pleading and seem forced, leave them out.
Be Clear in Your Prayer for Relief
A well-written pleading has a clear prayer for relief. The prayer for relief is the section of the document that asks for what you want from the court. It’s set out as either the “Prayer for Relief” or the “Wherefore…” clause.
In the prayer for relief, you’ll describe what you want the court to do as a result of the case. In a personal injury case, you may ask for medical expenses, emotional distress, pain and suffering and so on.
If a judge can’t understand precisely what they should do at the end of a case, they may make you clarify, causing a big delay, or give you less than what you asked for. Worse, they may get creative. Creativity can go in many directions. Don’t let the judge get creative!
Review the Pleading
After you’ve written a pleading, put it aside for a day or two before reviewing it thoroughly and proofreading it. Check for any typos and unintended spelling errors and things like double negatives and inappropriate punctuation. Make sure you haven’t overstated anything, and all the quotes used in the document are correct.
Chances are the judge will read your pleading fairly quickly, so make sure it’s an effortless read.
Format the Pleading Properly
Follow any statutory guidelines on formatting. If there are none, take cues from standard documents in your jurisdiction. The court clerk’s office may have some examples, or you may have already received documents from the attorneys in your case. Use them as general guidelines for formatting your own pleading.
Check the margins, word spacing, paragraph spacing, headings and other general formatting customs. A well-formatted pleading will show the judge that you didn’t race its preparation.
Again, the purpose of writing a pleading is to make your allegations of fact clear. Following these writing tips, will help you make those points more effectively.