A Cynic's Guide to Civil Litigation; Chapter 6 - Starting Your Case

If you are like most lawyers, you probably jump around the Table of Contents of any book so you can get to the interesting part, or the part you need, and to just “get on with it”. I am not offended. I wouldn’t know how you abuse this book anyway, unless you email me, which is not a bad idea. But I digress.

This is the part of the book that will tell you how to initiate, start, a civil case in court. This is an important step. We have already touched on this when I gave you the counterclaim example in Chapter 1. Here we will be getting into the steps you should take in putting together a complaint. A complaint starts your civil case. It is often called the “initiating” pleading.

Basics

You can file a complaint and ask for, “demand”, money, or equitable relief, or both.

Money means compensation. Before you go all “hog wild” on the money part, recognize that unless a statute speaks to money as punishment, remember the treble damages example I gave you. or allows some other reason to get money, money is intended to make you whole, not to make you rich. Some jurisdictions do not allow you to ask for an amount you think you are entitled to in the complaint. Do not go all crazy and demand a billion dollars for pain and suffering. It will severely damage your credibility.

“Equity” is asking the court to do something. Say you sue a company because they broke a contract. You may want the court or jury to order the company to fulfill the contract. This is called “specific performance”. You also may ask the judge or jury to order the defendant to pay you damages or compensation because you couldn’t fulfill your contracts with customers because the defendant didn’t send you the parts you needed to make your thingamajigs. In this example your complaint is for compensation and equitable relief.

If you are filing a complaint, you are the plaintiff/petitioner. You have the burden to prove your case and to “prosecute” your claims. “Prosecute” means you are required to keep your case on track. If there are things that must or should be done to move the case along, you are required to do them, especially if it is a court order.

War Story

This is a sad but short war story. My dad had defended a gentleman who was charged with murder one, first degree murder, in the death of a young man who our client believed had taken his mistress.

It was a brutal murder in cold blood committed at his mistress’s apartment with a knife.

The client was found guilty and given a life sentence.

The defense included insanity because the client, for over a year, had been attending a psychiatrist weekly for bi-polar disorder and severe depression, with a focused obsession on his mistress. He had never been prescribed any medication, despite his confessed violent feelings toward anyone he believed had designs on his gorgeous mistress. (Not gorgeous!)

After our client was convicted, the family of the victim approached and asked if we would be agreeable to take them on as a client against the psychiatrist who had “treated” our client.

We declined. There was too much of a conflict and even though it might appear to be a sensible case, our failure at the defense signaled little likelihood a civil case would succeed.

The appellate decision was interesting. There is an automatic appeal of murder one convictions in Massachusetts.

The Court wrote that perhaps it was time to revisit the burden in an insanity defense. This was in deference to experienced trial counsel’s argument that the prosecutor should have the burden to establish sanity once defense counsel has interposed the insanity defense, instead of requiring the burden remain on the defendant to prove insanity.

It has not changed.

There are, basically, three parts of a civil case. There are three things you need to prove, usually by a “preponderance of the evidence”, - liability, proximate cause, and damages.

Liability essentially means to prove the defendant did or did not do the things you are claiming happened or do not happen.

Proximate causation means that the things that were done are so connected to the harm that was caused that in the eyes of the law the defendant can be held responsible for the harm.

Damages mean the amount of money you claim the defendant should pay.

Think of it as a connection - A – liability, to B – proximate cause, to C – damages.

Guess what happens if you fail to prove one? You lose, or in the case of failing to prove just damages, but everything else – you get nothing, you lose.

“Preponderance of the evidence” means 51%, which is great because it is just 51%. If a jury believes the defendant is at least 51% at fault you win. Some states allow your award to be reduced by the percentage a jury finds you contributed to the damages. If you are 40% at fault, you may win your case but the $100.00 you won is reduced to $60.00.

Before you begin

The complaint is an important step. It is the "initiating" pleading. A judge may allow you to amend your complaint after you have filed, some rules give the judge the power to let you amend or modify, but, most likely, where you live, the judge will have “discretion” to deny your request. You do not want to risk the judge denying your request to fix something. Plus, it is more work. We do not like “more” work. We like “less” work.

Do your work once not twice. Take the time to decide what claims you want to make or can make against the defendant. These are the torts we spoke of earlier, or the contract claims or the special claims, like claims under the consumer protection statutes in your state.

Here are some general tort claims you might want to look up:

1. Negligence.

2. Gross negligence.

3. Intentional infliction of emotional distress

4. Negligent infliction of emotional distress.

5. Defamation (slander – speaking, or libel – writing)

6. Property damage.

7. Assault.

8. Battery.

9. Arson.

10. Theft/Larceny.

11. Computer hacking.

12. Wiretap.

13. Identity theft.

14. Medical equipment failure.

15. Medical malpractice.

Here are some contract type claims:

1. Breach.

2. Unjust enrichment.

3. Consumer protection.

4. Specific performance.

5. Breach of Warranty (There are different kinds)

6. Breach of Good Faith and Fair Dealing.

As you can imagine there are quite a few claims. I cannot anticipate your claims because I do not know how you were harmed. But with just a little bit of effort online you can figure it out. That lawyer you know may be a good source.

You will want to learn the format for your complaint. This is important. Some states require you use their forms. Some states require you use their form for your first page. Other states may have forms that need to be filed with your complaint such as cover sheets, or forms that identify the types of damages you are claiming. Some statutes require you give the defendant notice before you include a claim in your complaint. That could be another form.

I suggest you give the court a call. The clerk should be eager to help you get it right. It will be less work for them. Do not be offended if they are not the friendliest bunch. They have a tough and thankless job. Don’t forget to thank them!

The Complaint

I have already alluded to the format of your complaint. (Great word “alluded”. How dull do you have to be to love words? Lawyers can be a dull bunch.)

Generally, some things need to be in every civil complaint. A complaint is designed to give Johnny Doe “notice” of your claim or claims. You will hear this quite often because “notice” is the bedrock of the law. If you don’t have notice, you cannot properly defend against the claims. It is “due process”. Another term you will hear often. Essential.

Typically, the rules in your state guide you. The reported cases in your state define the rules. Broadly stated, the standard for a complaint is a “short, plain, and concise statement of your claims”. You do not need to write a book. You do have to identify your claims sufficiently. It can be tricky. And, even if you do everything correctly, expect opposing counsel to attack your complaint. This is usually done by a Motion to Dismiss. A sample complaint is included in the appendix.

So, let’s think this through.

You may want to go online and find out how to “caption” your complaint. As I said, some states require you use their forms, some states prefer you caption your complaint precisely, and others don’t care. It is all about uniformity and “notice”. Either way, follow what you learn online or in your telephone call to the clerk. It is important that you get it right. For instance, in some states if you want a jury, you must caption your complaint with a “Demand for Jury Trial”. In some states you can “waive”, (not wave ), the jury after you have demanded a jury and have your case heard only by a judge, but if you want a jury, you can’t get one if you do not “Demand for Jury Trial”. There are many different “stylings” you may need to be aware of. So do your thing and find out so you don’t screw up.

You may, if allowed, want to include a little introduction in your complaint. I do this because I think the Court would like to know what the case is about right up front. (Of course, I risk the judge setting aside the complaint because they are just not interested, but…)

A sample introduction may go something like this:

“Introduction

This is a complaint for Equitable Relief, Declaratory Judgment, and Compensatory Damages for breach of a joint venture agreement, defamation, interference with advantageous contractual relationships, theft of money, and harm caused by the defendant.”

You can be as simple or elaborate as you like in your introduction but be careful to cite facts in your complaint that support your introduction, otherwise, it is misleading.

The next section may be where you identify who you are and who the defendant is.

This is usually title as the “Parties”.

Here it is important to identify the parties, which state they live in, and to give an address. If the defendant owns a company or works for a company that caused you harm, you can identify that as well. The court is looking for a way to contact you and the defendant[s] during the case. Some courts notify the defendant of the case, others rely on you to serve the complaint and other papers on the defendant, get proof of that service, and file that proof with the Court. But, in any event, courts want to know how to find people involved in a civil action.

Here is an example of how you would identify “Parties”:

“2. The defendant, John Doe, is a citizen of the state of Arizona and is a resident of Tucson with a last known address of 2120 East Cactus Road, Tucson, Arizona 00000. He is the principle and owner of the defendant company XYZ, Inc.

3. The defendant XYZ, Inc. is a company duly organized under the laws of the State of Arizona with a principal place of business at 2122 East Cactus Road, Tucson, Arizona 00000 and is owned and operated by the defendant John Doe.”

The next section might be the facts. (“Just the facts, mam, just the facts. A line from “Dragnet”. If you recognize this, you are old and antiquated too.) The facts mean the facts. This is not a place where you argue your case, although you can “spin” the facts as you see them. But, as a matter of fact, the facts should be the facts, nothing more. What do I mean? Thought you would never ask. Here is an example of good and bad.

Good

“12. As the plaintiff approached the intersection, the defendant was approaching a red stop signal to the plaintiff’s left.

13. The defendant failed to stop at the red signal light, proceeded through the intersection at a high rate of speed, and struck the plaintiff’s vehicle at the intersection.”

Bad

“12. When I got to the intersection, I know the defendant had a red light because my light was green, and they don’t give both drivers a green light because it will cause an accident which is what happened when the defendant went through the red light because he wasn’t paying attention.” (Sounds like this person is a little wound up!)

You can see by the example; the first set of facts are straightforward and do not make any argument or explain how you came to the “fact”. It is just a fact.

The second “fact” is a rambling mush of argument and reasoning.

You run the risk of trapping yourself with the rambling mush. You could be challenged on what you have argued in your complaint. You may not want opposing counsel pointing out you described a fact one way in your complaint and later described it differently. Sooo…..just the facts, mam, just the facts.

I prefer to include a section on jurisdiction and venue even if it is obvious. (Chapter 3 explains jurisdiction and venue) I believe it is good practice. As far as placement, well, you can put a section on jurisdiction and venue anywhere in the complaint as long as it is before “claims”. Your claims will not be successful if you have the wrong court. You will get kicked out because the Court does not have the authority to hear your case. It makes sense to put the jurisdiction and venue section before the claims section.

You do not need to be too sophisticated, too complex when you describe jurisdiction and venue unless a defendant or the defendants are out-of-state. If the defendants are out-of-state, your best move might be to call that lawyer you know, or to leave this section out. If the defendants are out-of-state you will have to deal with an argument that the Court does not have authority over them at some point. If you leave this section out, you give yourself greater flexibility if that time comes. Check with the clerk on the best move.

Here is an example of a Jurisdiction and Venue section of a complaint:

“Jurisdiction and Venue

13. This Court has specific personal jurisdiction over the defendant because he caused tortious injury to plaintiff in this state and the defendant lives in this state.

14. This Court has subject matter jurisdiction because the injury occurred in Boston.

15. Venue is deemed proper in the Court in the county in which cause of action arose, or where any party to the action resides.”

You get the drift. Let the court know in your complaint you are in the right court.

You must include a section where you make claims against the defendant(s). Without this section, you do not have a complaint because you are not putting anyone on “notice” you are blaming the defendant(s). This is the section where you list the “torts” the defendant(s) committed against you, or the contract claims, and where you demand satisfaction.

I had a case where the plaintiff represented himself, pro se. The complaint was a mess. That would have been tolerable if he had hit some proper sections. He did not. No claims at all. He was an arrogant, disrespectful, and condescending man who truly believed he was smarter than everyone. He was severely narcissistic as well.

His response to a challenge was to laugh. I called him to ask if he would amend his complaint to add claims. I offered to send him a sample complaint. He laughed at me and told me I was an idiot. I filed a motion to dismiss.

The Judge was very patient when he laughed at my argument and interrupted. When the Judge explained he would have his turn and not to interrupt, he responded with a refusal to listen to any more of my lies. The Court gave him 30 days to amend the Complaint to add claims. He told the Judge he would “appeal” that order

After 30 days I called him. He told me to “f ck off” over the phone. The Court ruled on my motion. The case was dismissed. I learned later he had written a profanity laced letter to the Judge and was fined $500.00. I never heard from him again.

This is an extreme example. It does illustrate the need to include some basic sections in your complaint to comply with “Due Process”. You do not have to be a jerk to get your case dismissed. You can be an angel but fail to give notice by failing to include “claims” in your complaint. The result, angel, or jerk, is the same.

Generally, and once again your state may differ, you title a section “claims:” and subsections under that heading called “Counts”. Here is an example:

“Claims

Count I

Breach of Contract

1. The Plaintiff incorporates all allegations in this Complaint as if more fully set forth herein.

2. The Defendant agreed to the terms and conditions of the contract he executed with the Plaintiff.

3. The Plaintiff fulfilled its obligations under the contract signed by the Defendant.

4. The Defendant had a duty to abide with the terms and conditions of payment to the Plaintiff.

5. The Defendant has breached the terms and conditions of the contract aforementioned, has refuse to otherwise perform under the terms and conditions of the contract.

6. As a direct and proximate result of the aforementioned acts, conduct, and omissions of the Defendant the Plaintiff has been and continues to be damaged.

WHEREFORE, the Plaintiff demands judgment against the Defendant for the value of the contract, expenses paid, costs, fees, punitive damages, and attorney fees and all other amounts this Court deems fair and equitable.”

This “count” makes a “claim” against the defendant for breach of contract. This is a contract case. I would include other counts such as “unjust enrichment”, but I would only add a tort, like “negligence” if the defendant did something negligent aside from the breach but based on the same set of facts. A breach is intentional. I do not know how a breach could be a negligent act. One is an intelligent act, or an intentional act, the other claim, negligence, is a stupid act. If he had come into my office to announce he was breaking our deal, pushed my desk knocking a lamp into my arm causing a burn, I might consider a count in negligence for knocking over the lamp.

I want you to notice a few things about the language in the “count” I have used as an example.

The first paragraph is used to adopt all the paragraphs in your complaint. Once again, this is good practice to avoid opposing counsel challenging your count because it does not state facts only the parts, elements, of the claim. For each count you add, you start off with this type of paragraph. You then describe the elements. A breach of contract must state the elements; “a duty owed”, a “breach of duty owed”, and “harm”.

The second thing I want you to notice is the paragraph that has the phrase “direct and proximate result”. It might be said differently in your state, but it is a matter of legal notice. This language is used to put the defendant on notice you are saying the acts that are in the count are proximately connected to the harm or damages. Remember I explained the three things you must prove to win? The second was “proximate cause”. This is the paragraph you include to make the claim of proximate cause.

Finally, notice the paragraph that starts with “WHEREFORE”. That is just fancy language that is customary in my state, but this paragraph is your statement of the third prong of proof – damages. In my state, we are prohibited from making a statement about how much we want from the defendant in dollars. This is called the “ad damnum” – using that Latin. We are prohibited from stating an ad damnum. Where you are it may be different. In federal court there is no prohibition. But you need to make the claim that the defendant should be forced to pay you money or do some other thing, in your complaint.

The final section, if used in your state, is titled something like “Prayers for Relief”. Ok, if you are not sick of all this archaic language, I can guarantee you there is an endless supply in the law, so buckle up. All that “Prayers for Relief” means is that you are asking the court to give you relief from all the harm or damages you have suffered because of the defendant(s). Here is an example:

“Prayers for Relief

1. That this Court enter a judgement for the full amount of the value of the contract plus statutory interest.

2. That this Court enter a judgement for all outstanding costs and expenses owed to the Plaintiff.

3. That this Court enter a judgment for punitive damages, costs, disbursements, and attorney fees.

4. That this Court compel the Defendants to post a bond to assure payment of a judgment in the amount of Five Hundred Thousand ($500,000.00) Dollars”

These prayers set you up for any motions you may want to file with the complaint or after the complaint which I will speak to further in the next chapter. In some states, if you do not ask for specific relief in your complaint, you cannot ask for it later. In some states, if you do not ask for specific relief in your complaint, you cannot ask for it at any time. Once again, check out your state online. Look for complaints filed by others. This is a good place to start. Call the clerk and ask. If you look to the end of this book, the appendix, I have set out a bunch of questions you can ask the clerk when you call. Make sure you save the answers for reference.

You have reached that point in your civil action where you have your complaint written and you are ready to pull the trigger and begin.

A word or two about the advances of technology in the law and electronic filing.

EFile

Technology has caught up with the Courts. The federal court system instituted e-filing decades ago with PACER, Public Access to Court Electronic Records. Anyone can find cases on PACER, if you have the patience. Not everyone can file on PACER. You must register to be allowed to file. You must be a lawyer or a pro se litigant to register.

States have joined the federal government in turning electronic. Most states had instituted electronic dockets, or the list of events that happened or is expected to happen in a case. Anyone who had the name of a party and the name of the court where the cases were filed could access the electronic docket online and find out what is going on at any given time.

But most states had not started e-filing in any case until recently. COVID gave states the impetus to get online. Necessity is the mother of invention. COVID was the mother of them all. With courthouses shut down, it was critical that states provide access to the courts for filing and remote hearings via Zoom, Microsoft Teams, or other online meeting software platforms. Think this through. States had to allow remote hearings. You have a federal and state constitutional right to access to the courts to redress your grievances. The states cannot just shut the doors and end justice. You also have the right to prepare and present your case. This includes introducing documents or records. There had to be a way to produce records and documents for the Court’s review. With E-filing, a litigant can file a motion or pleading online with all the exhibits, documents and records needed to make a presentation and to complete a hearing.

I am not going to suggest that any E-filing system is simple, direct, or intuitive. I will suggest that the E-filing system in your state is probably clumsy, awkward, and in need of a hammer. That is the way it works. Bids go out to software companies. (Most likely software companies where some friend or distant family member of a politician has an interest), and millions are spent on designing and implementing an E-file software platform. The result is predictable. You will spend hours learning the systems and on your cell phone trying to get answers, before you e-file your first document, which will most likely be rejected.

I am 68 years old and like to think I am pretty tech fluent. Does not matter. When I first embarked on learning the state E-File system in Massachusetts, it took me at least 2 hours fumbling around to submit my first motion. That triggered a phone call from the clerk who explained they rejected the E-File because the envelope was separated. Envelope? “What envelope?”, I asked. I had filed electronically. Was I supposed to mail something to the court before I E-Filed? Nope. The clerk explained that each filing is called an “envelope” as if I had mailed the motion to the court. Wonderful. A whole new language. Yippeee! This is so much easier.

With my “envelope” rejected and with a human explanation of why I had failed, I went back to the platform online and did as I was directed, filing all my documents in one envelope with great trepidation. There did not appear to be any category that fit some of the documents I was filing.

Seconds later BB King was playing on my phone. (That is my ring tone). I had classified my pleadings and records correctly in my “envelope”, but I need to convert some of my filings into .pdf with Adobe Acrobat and file again. Remember when I told you to pull all your hair out now so you will not have to do it later? I am bald.

E-Filing is the natural evolution of technology applied to critical systems. It will become user-friendly. It is not user-friendly presently. Be prepared to struggle. The learning curve is high because of the poor design of the programs. It is shameful.

You can always mail in your submission or drive it down to the Court. It would be a good idea to get familiar with E-filing regardless. Punch your way through. In the long run, it adds quite a bit of flexibility to your case.

That being said, what if you open your mail and lo and behold you are being sued? What do you do? Let’s talk about that next.