1. Civil Litigation:
Process and Procedures
Chapter Eight
Pleadings

2. Pleadings
 Documents filed
 With a court
 To commence
 Or respond to a lawsuit
 Must conform to
 State or federal Rules of Civil Procedure
 Local court rules
 Judges’ information sheets
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
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3. Rules of Civil Procedure
 Insure that trials are conducted fairly &
produce a just result
 Federal, state & local
 Address:
 Pleading, discovery & trial procedures
 Filing deadlines
 Document format
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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4. Statute of Limitations
 Time frame within a party must bring a
suit
 Fundamental fairness can extend the time
to begin with the discovery (knew or
should have known) of the injury, rather
than the date the injury was received.
 May be extended for minors
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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5. Commencing a Suit
 Depending on the jurisdiction, an action
commences with a
 Complaint
 Writ of Summons
 Summons
 Petition
 Notice to Plead
 Cover or Case Designation sheet
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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6. Notice Pleading
 Federal & some state courts
 Must give notice of the event & the claims
arising from that event (short & plain
statement)
 The basis for the claim & damages will be
more thoroughly identified during
discovery
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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7. Fact Pleading
 Must state
 Material fact on which the cause of action or
defense is based
 Averments of fraud or mistake
 Time, place & items of special damage
 Conditions precedent
 Jurisdiction
 Must attach documents that form the basis
of the claim
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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8. Notice v. Fact Pleading
 Notice pleading requires that enough
information be included to give the
defendant notice of the events & claims
against him
 Fact pleading requires that all relevant
facts & claims be included in the
complaint
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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9. The Summons
 A federal summons can be downloaded,
copied & prepared
 It advises the defendant
 Of the lawsuit
 The time within which a response must be
filed
 What will happen if there is no response
 How to obtain a lawyer
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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10. Summons Preparation
 Completed by the legal team
 The clerk of court adds the filing information
 Case number
 Judge assigned
 The return of service form is on the back
 The summons & complaint are served, and
the return of service is completed
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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11. Civil Cover Sheet
 Summary page used by data entry
personnel
 Names & addresses of the parties
 Counsel contact information
 Types of claims asserted
 Basis of jurisdiction
 Class action or related claims?
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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12. Drafting the Complaint
 Caption
 Identity of the parties
 Jurisdiction & venue of the court
 Document title
 Docket Number provided by Clerk
 Numbered paragraphs
 One fact per paragraph is ideal, but difficult
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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13. Jurisdictional Claim
 Identify parties & situations enough to
establish personal jurisdiction
 Describe claim to establish subject matter
jurisdiction
 Jurisdictional limits on amount in controversy
vary
 Courts may be limited in the types of claims
they can hear (juvenile, probate)
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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14. Elements of
the Cause of Action
 Each cause of action appears as a
separate count
 Each count need not plead elements
individually in a notice pleading
jurisdiction
 Each count must contain all the necessary
elements in fact pleadings
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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15. Counts
 Counts will describe each separate cause
of action
 Complaints divided into counts for clarity
 Case, if heard by court, will be decided for
each count
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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16. Damage Allegation
 Must claim harm
 Personal physical injury
 Property damage
 Monetary losses
 Out-of-pocket expenses
 Lost wages
 Loss of earning capacity
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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17. Prayer for Relief
 “Wherefore” clause
 Related to damages
 Asks the court for relief, based upon the
alleged harm
“Wherefore the plaintiff demands judgment against
the defendant in a sum exceeding $75,000 plus
interest, costs, attorney’s fees, and such other relief
as the court deems reasonable.”
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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18. Unliquidated damages
 Unliquidated damages are not calculable
by mathematical calculation (pain and
suffering)
 In situations with unliquidated damages,
some court rules will not permit including
a specific amount (example: $12,000,000)
in request
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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19. Signatures
 Attorney certification
 Familiar with facts & claims
 Based on bona fide basis in law
 No improper purpose
 Facts have been investigated
 Believes the information to be true & accurate
 Can be sanctioned for frivolous claims
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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20. Verification
 Client signature
 Subject to perjury
 Client asserts the truthfulness of the claims
 Not required in all jurisdictions
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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21. Filing Fees
 Must be paid with filing
 Vary by jurisdictions
 May be possible to file & pay online
 Indigent parties may seek waiver (in
forma pauperis)
 After-hours filing may be possible in some
jurisdictions
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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22. Electronic Filing
 Rules vary by jurisdiction
 Must submit materials in format specified
 Word
 WordPerfect
 PDF, etc.
 Both parties should consent to electronic
filing where it is an option
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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23. Service of Process
 Insures due process: notice of the suit, an
opportunity to be heard
 Generally, service is performed by
 An adult (frequently the sheriff)
 Not a party
 At recipient’s place of business or residence
 To an adult
 Service is confirmed by affidavit
 Right to service can be waived
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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24. Calculating deadlines
 For a federal deadline of 20 days:
S M T W T F S
served Begin 2 3 4
count
5 6 7 8 9 10 11
12 13 14 15 16 17 18
19 Holiday Due
date
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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25. Amend or
Supplement the Complaint
 New information after filing
 Correct or add material
 Before a responsive pleading, no
permission required
 After a responsive pleading, only upon a
motion granted by the court
Civil Litigation: Process and Procedures © 2009 Pearson Education, Upper Saddle River, NJ 07458.
All Rights Reserved.
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