Author: Bruce Parsons
Date Posted: July 11 2018
Pleadings are often mentioned in legal proceedings, mostly giving rise to a perplexed look from the individuals involved in pursuing the legal action. What is a “pleading” and why does it matter? Do you want one, and what type of pleading works best? What do you want to say to the Court and how do you say it?
Drafting pleadings is high art. The drafter must combine the facts, the law and the language in a manner that subtly directs the reader to a desired conclusion or conclusions without relying on argument, caselaw or descriptive language.
A simple explanation – a “pleading” is legal document relating to a step in a legal proceeding. More practically, it is what you write down and submit to a court as part of what is happening. Some examples, if you have hired a contractor and you are unhappy with the work, you may sue the contractor to get your money back. That legal claim with the Court would be considered a pleading. When the contractor disputes your claim, he serves you with a defence, and files the defence with the Court. This defence is also a pleading. Other documents may be considered pleadings if, essentially, they tell a story to the Court.
Pleadings are not evidence. Pleadings are statements of fact, without argument. As a practical matter, pleadings tell the story of your claim or defence to the Court and to the other side. This is like a report, containing factual statements on what happened. Pleadings should not contain argument or unsupported allegations. Bill from Alien Contracting may be a sasquatch, but unless you can definitively prove he is in fact a sasquatch ( and no, that he is hairy and elusive and has big feet is not sufficient proof for the Court) you should not mention this in your pleadings. The fact that you believe he left a hole in roof which he failed to shingle, even though you hired him to fix the hole and reshingle the roof, that fact should be in your pleading.
Pleadings must satisfy the 5 w’s of reporting, who, what when where and why. The reader must know what you are claiming, why, how much and from whom. If you don’t answer those questions, the other side will be unable to properly respond and the Court will not understand your case, delaying the matter and increasing your costs and frustration level.
Pleadings tell your story. A good story means you state your case clearly, elicit sympathy and support and make reasonable requests. A trier of fact, (think the “Judge” although it can be a deputy judge or an adjudicator or justice of the peace or a judge judge) loves a simply put, factually consistent case.
Now what kind of pleading do you need?
“Harvard Law School professor Alan Dershowitz shares with his students a strategy …. If the facts are on your side, Dershowitz says, pound the facts into the table. If the law is on your side, pound the law into the table. If neither the facts nor the law are on your side, pound the table.”
The above quote deals with presentation of a case at Court, with a little humour. Pleadings are the first step in presenting the case and you need to tailor them accordingly.
We all have something to prove.
Knowing what legal principle(s) is/are involved is critical, because it directs the pleadings. To prove an allegation of fraud, for example, certain allegations need to be pled. For defamation or conversion or negligence, each claim has specific legal tests to be met and the pleadings must disclose that information to support the allegations.
The facts and nothing but the facts, so help me.
Also critical is removing information that is not relevant to proving the allegations. You do not want to distract the reader from the essence of the story and have them mentally wandering down the garden path to different conclusions. ONLY THE ESSENTIAL ALLEGATIONS SHOULD BE IN THE PLEADINGS.
Circumstances sometimes dictate an immediate response, what I term a stick pleading, as in stick it in NOW! You may need to preserve a timeline to avoid having a limitations period expire or to avoid being noted in default.
For an example, you have been served with a statement of claim, personally. You note it has 20 days to respond, you phone around and book an appointment with your representative on day 15, a Friday. Well, the defence has to be served and filed within the 20 days, you lose two days to a weekend and …. Time is very short. And of course, the defence has to be drafted, before it can be sent out for service and filing. So you may choose to create a very basic defence, essentially a denial of the allegations, and get it out immediately to avoid being noted in default. A “stick” pleading may be necessary. There are other potential situations for “stick” pleadings, a preservation of a limitation period ( so time to proceed does not expire) or a situation where settlement negotiations are ongoing and likely to be fruitful, but a defence still needs to be filed to preserve your position. Perhaps you have a minimal fact situation, a “bounced” cheque…. To keep costs low and to expedite the process, your claim would be a stick claim, stating that so and so presented a cheque as payment for whatever on this date. Said cheque was not honoured by their financial institution and you seek payment for same. Most pleadings will not be “stick” pleadings but they have their uses.
Drafted pleadings…. Allegations will be set out in numbered paragraphs, containing all the pertinent details and nothing inappropriate. The story will be told in plain language, it is easy to follow and contains the necessary dates and times to support the narrative. It will allow the reader to understand the complete sequence of events, and it will also lay out what the party is seeking and why. The why will allow the reader, in particular the Court, to identify what legal tenet(s) the party is relying on, either by stating that particular tenet clearly or by having the legal tenet set out clearly.
Beginning with the End in Mind….or when the Gold Standard is applicable – an advanced version are crafted pleadings, Crafted pleadings are essential for more complex matters, where you require the reader to follow a certain thought process, be it legal or factual. If you have a complex legal argument, if you have a complex or convoluted case, if you have to rely on a rarely used exception to establlished law or practice, you need to craft your pleadings carefully. While drafted pleadings contain the essentials to establish the pertinent legal issues, crafted pleadings subtly establish a path to lead the trier of fact to consideration of particular issues. In these circumstances, the legal research will be done up front and the language of the cases to be relied upon at the conclusion of trial will be woven into the pleadings. Subtle, repetitive use of the language in the judgments from your legal research serves to reinforce the legal proceeding, to direct the trier of facts thoughts to those cases and to assist in recognition of the legal principles when argued on closing.
You then carefully elicit the evidence at trial to support that language and that case law to your desired conclusion.
The art is to have the pleadings drafted in such a manner as to be completely invisible to the reader in its application. Regardless of the correctness of any legal position, human nature being what it is, telling someone they must make a certain decision rarely goes well. The pleadings must lead to a “discovery” of sorts of the legal principles invoked and applied to the fact scenario before the Court. Leading the trier of fact to consider your facts as immutable and your interpretation of the law as her/his own interpretation of the law is the highest form of the Art of Pleadings.
Costs ….. What do you have to spend? You may have a legitimate claim for $25,000.00 or $150,000.00. However, if your choice is between feeding the kids or paying your legal representative, you need to work out something that acknowledges the need to feed the kids. Don’t believe me? If you don’t feed the kids, you will need legal representation very very quickly and not just to pursue your initial claim.
Can you get paid? The number one consideration in commencing any legal action is to understand that the legal action is only a means to an end. You want property returned, you need your car fixed, you want the money you paid back so you can fix your roof properly. How that occurs is really immaterial to you. The legal avenue you take has to lead to the result you desire. If you can’t get what you want/need at the end of the day, you are in the wrong process.
Pleadings can make or break a case. They also set up the entire claim or defence for the Court and they focus the legal issues and the evidence needed to be successful. Maybe, with guidance, you can run the trial successfully. But without solid pleadings, you have no traction to get you to where you need to be.
I can assist. I can represent you through to trial, I can simply draft your pleadings, I can help you focus your legal arguments to get you to your end result. I can provide as much, or as little, assistance as you require and I do so thinking about your desired result foremost. The best source of referrals is from happy clients refer new clients to me, I need you to be successful so I can continue to be successful. Please call and book your consultation to see how I can assist you.