Why Precision Matters in Pleadings
November 30, 2022 - Miranda Desa
I see a lot of claims and defences that have been built up over time. Always adding more and more possibilities so that everything under the sun is included.
I understand why counsel does this. Including more allegations can make is seem less likely that you will miss something. This leads a lot of lawyers to focus on including as many things as possible, just in case.
I don’t like this approach. I find that overbroad, generic pleading don’t do clients any favours.
When we focus too much on the forest, we get lost in the trees. It can feel comforting to have pages and pages of possibilities. But, i find this comfort steers lawyers away from an important thought exercise: thinking through what likely happened.
Of course, at the beginning of a file, you don’t know. You need to investigate, talk to your client, review documents. Investigating on the front end is crucial to preparing well-informed and useful pleadings. It sets the file moving in the right direction and allows the opposing party to understand your case. It also sets an appropriate scope for discovery and speeds up litigation.
As a plaintiff, I like to think backwards from what is my goal. What do I want to accomplish and what are the best ways to get there? How do I draft a claim in a way that makes it easiest for my client to prove its case? This allows for cases to move faster, by cutting out all the unnecessary fluff.
As a defendant, I like to establish our position and look at it strategically. I like to know where the fight really is as early as possible, so that I can build up my client’s case and spend time litigating what really matters.
When pleadings are defined very broadly, you increase the scope of discovery. This can force your client or the other side to produce volumes of unnecessary documents. This overcomplicates litigation and draws it out longer than necessary. It can result in your client having to produce documents they don’t want to produce. It can also reduce the likelihood of early resolution when it is not entirely clear what is in dispute.
Long overbroad pleadings can also cause critical issues to be missed. When lawyers follow long formulaic lists it can put their brains on autopilot. I've seen this cause lawyers to miss key issues when a case is a not typical and falls outside the traditional “box”.
Pages of allegations, filled with legalease, make it difficult for clients to understand the pleadings. This is a problem because it makes it hard for clients to review the pleadings and confirm they match their understanding of what happened.
I’m not saying lawyers shouldn't look at precedents or completely avoid legalease. There is no need to always start from scratch or reinvent the wheel. But, I am saying, think about it first, write down what you think the issue is and then add additional allegations if they are relevant and possible.
Lawyers who hastily draft generic pleadings are not doing their clients any favours. Their clients may benefit from a small reduction in the time to draft the initial claim or defence. But, the litigation itself will take longer and it will cost a lot more money in the long run.
The information on this site is not, nor is it intended to be, legal advice. You should consult a lawyer for advice regarding your individual situation. We invite you to contact us and welcome your calls, letters and electronic mail.