1. Advanced Civil Litigation Class 4Slide 1 The Complaint: General Points The Purpose of the complaint under the federal system and many state systems is merely to give notice to the other side as to what your cause of action is. The Purpose of the complaint under the federal system and many state systems is merely to give notice to the other side as to what your cause of action is. Writing too much in the complaint may: Writing too much in the complaint may: Annoy the judge Annoy the judge Waste your own time Waste your own time Give away your trial strategy needlessly Give away your trial strategy needlessly As the plaintiff’s lawyer, the complaint serves the following purposes: As the plaintiff’s lawyer, the complaint serves the following purposes: Start the suit and (with service) toll the staute of limitations Start the suit and (with service) toll the staute of limitations Introduce the cause of action to the court and defendant Introduce the cause of action to the court and defendant Invoke the court’s jurisdiction over the defendant and case Invoke the court’s jurisdiction over the defendant and case

2. Advanced Civil Litigation Class 4Slide 2 Strategies in Starting to Draft a Complaint First, obtain an old complaint from your firm’s archives. Many firms have templates that all complaints are drafted from. First, obtain an old complaint from your firm’s archives. Many firms have templates that all complaints are drafted from. There’s no need to set up the boilerplate and caption and other things that change from complaint to complaint initially. First, draft the substance and later plug it into the form. There’s no need to set up the boilerplate and caption and other things that change from complaint to complaint initially. First, draft the substance and later plug it into the form. Do the different sections (e.g., jurisdiction, each cause of action, etc.) separately. Do the different sections (e.g., jurisdiction, each cause of action, etc.) separately. Appendixes and exhibits can be used in a complaint, but don’t overuse these. Save your evidence for trial. Appendixes and exhibits can be used in a complaint, but don’t overuse these. Save your evidence for trial. Only use exhibits if it’s a relatively simple case or one that may be able to be resolved on the pleadings Only use exhibits if it’s a relatively simple case or one that may be able to be resolved on the pleadings

3. Advanced Civil Litigation Class 4Slide 3 Naming the Parties in a Complaint Caption: Caption: Says the parties, index #, name of court and “complaint” Says the parties, index #, name of court and “complaint” Description of parties Description of parties Usually, you will say the addresses of the parties Usually, you will say the addresses of the parties Parties must have “standing” to sue for the complaint to be valid Parties must have “standing” to sue for the complaint to be valid Parties must have the capacity to sue or be sued Parties must have the capacity to sue or be sued Other types of complaints: Other types of complaints: Third party complaints Third party complaints Interpleader complaints Interpleader complaints Class action complaints Class action complaints Intervention complaints Intervention complaints

4. Advanced Civil Litigation Class 4Slide 4 Asserting Jurisdiction A statement as to why the court has jurisdiction over the case and over the parties is a required component of every complaint. A statement as to why the court has jurisdiction over the case and over the parties is a required component of every complaint. Even in state courts of “general jurisdiction,” you should still allege why the court has jurisdiction. Even in state courts of “general jurisdiction,” you should still allege why the court has jurisdiction. In courts of limited jurisdiction, like federal courts and lower state courts, you certainly need to discuss why the court has subject matter jurisdiction. In courts of limited jurisdiction, like federal courts and lower state courts, you certainly need to discuss why the court has subject matter jurisdiction. To allege subject matter jurisdiction, first list the location of the parties and or the cause of action, whichever is relevant. Then state the statute under which jurisdiction rests To allege subject matter jurisdiction, first list the location of the parties and or the cause of action, whichever is relevant. Then state the statute under which jurisdiction rests To allege personal jurisdiction, state where the defendant lives or where the tort occurred and then the statute which allows personal jurisdiction in that case To allege personal jurisdiction, state where the defendant lives or where the tort occurred and then the statute which allows personal jurisdiction in that case

5. Advanced Civil Litigation Class 4Slide 5 Alleging Your Causes of Action First, state the relevant facts of the case (only those facts you need to establish your causes of action) at the outset of the complaint. First, state the relevant facts of the case (only those facts you need to establish your causes of action) at the outset of the complaint. Use a separate heading for each cause of action. Use a separate heading for each cause of action. For each cause of action, make sure to reiterate the relevant facts. For each cause of action, make sure to reiterate the relevant facts. Then, tie in the relevant facts to the elements of the cause of action Then, tie in the relevant facts to the elements of the cause of action Make sure that the reader understands why the facts line up with all of the allegations Make sure that the reader understands why the facts line up with all of the allegations Make sure, if damages is an element of the cause of action (e.g., negligence), that you allege the damages within the cause of action. Make sure, if damages is an element of the cause of action (e.g., negligence), that you allege the damages within the cause of action.

6. Advanced Civil Litigation Class 4Slide 6 What NOT to do in a Complaint Do not anticipate or refute possible defenses Do not anticipate or refute possible defenses That is for motion practice or trial. At this stage, you just need to state a cause of action That is for motion practice or trial. At this stage, you just need to state a cause of action Do not allege facts if you don’t know if they’re true Do not allege facts if you don’t know if they’re true You can say “Upon information and belief…” if you’re not sure You can say “Upon information and belief…” if you’re not sure Do not state or argue the law Do not state or argue the law Do not combine causes of action in one sentence or paragraph Do not combine causes of action in one sentence or paragraph Do not go into too much detail in terms of the damages suffered Do not go into too much detail in terms of the damages suffered Do not lock yourself into a particular theory unless you have to. Do not lock yourself into a particular theory unless you have to.

7. Advanced Civil Litigation Class 4Slide 7 Fact or Code Pleading Although the federal rules and many states only require a short and plain statement of the claim, some jurisdictions still apply the “old” rule that requires all of the relevant facts to be pleaded in the complaint. Although the federal rules and many states only require a short and plain statement of the claim, some jurisdictions still apply the “old” rule that requires all of the relevant facts to be pleaded in the complaint. In such a state, you must go into more detail and allege every fact that’s relevant to the cause of action. In such a state, you must go into more detail and allege every fact that’s relevant to the cause of action. The majority rule, however, is still apply the “notice pleading” rule (i.e., the federal rule) that gives notice to the other party as to the nature of the complaint and the basic facts that gave rise to it. The majority rule, however, is still apply the “notice pleading” rule (i.e., the federal rule) that gives notice to the other party as to the nature of the complaint and the basic facts that gave rise to it.

8. Advanced Civil Litigation Class 4Slide 8 Types of Damages to be Sought in a Complaint There should be done in the “wherefore” clause. Damages can include: There should be done in the “wherefore” clause. Damages can include: Compensatory Damages; e.g., Compensatory Damages; e.g., General Damages General Damages Special Damages Special Damages Provable economic damages Provable economic damages Pain and Suffering Pain and Suffering Exemplary (punitive) Damages Exemplary (punitive) Damages Many states require intentional or reckless tortious conduct for punitive damages to apply Many states require intentional or reckless tortious conduct for punitive damages to apply Injunctions Injunctions Prohibitory (preventing an action) Prohibitory (preventing an action) Mandatory (requiring an action e.g., specific performance) Mandatory (requiring an action e.g., specific performance)

9. Advanced Civil Litigation Class 4Slide 9 Miscellaneous Points about the Complaint You can allege completely separate causes of action even based on unrelated facts in the same complaint. You can allege completely separate causes of action even based on unrelated facts in the same complaint. Just make sure that: Just make sure that: The court has subject matter jurisdiction over each count The court has subject matter jurisdiction over each count You use a separate section for each cause of action You use a separate section for each cause of action You adequately allege the facts of each cause of actiom You adequately allege the facts of each cause of actiom In the “wherefore” clause: In the “wherefore” clause: Demand a jury trial, if you want one Demand a jury trial, if you want one Also as the court for “all further relief that the court deems just and proper” or something to that effect Also as the court for “all further relief that the court deems just and proper” or something to that effect

10. Advanced Civil Litigation Class 4Slide 10 Miscellaneous Points 2 Rule 11 requires the lawyer to sign all pleadings Rule 11 requires the lawyer to sign all pleadings The lawyer can thus be punished if they are false or frivolous The lawyer can thus be punished if they are false or frivolous A verification is required in many jurisdictions A verification is required in many jurisdictions This is an affidavit from the plaintiff stating that s/he has read the complaint and believes all allegations to be true This is an affidavit from the plaintiff stating that s/he has read the complaint and believes all allegations to be true You can attach exhibits to the complaint, but don’t overdo it. This is most useful where the complaint is based primarily on a document (e.g., a contract). You can attach exhibits to the complaint, but don’t overdo it. This is most useful where the complaint is based primarily on a document (e.g., a contract). In the allegations when you reference the contract signed by the defendant, you can say In the allegations when you reference the contract signed by the defendant, you can say … a copy of which is attached hereto as Exhibit A.” … a copy of which is attached hereto as Exhibit A.” A bond for costs may be required in some states for some cases A bond for costs may be required in some states for some cases