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1

The Nature and Purpose of Pleadings

After completing the preliminary investigation, interviews, and research, the attorney determines whether to pursue the case. If the decision is made to proceed, the litigation process formally begins and each party files pleadings with the court. "Pleadings" are the various documents filed in a court proceeding that define the nature of the dispute between the parties. Not all documents filed with the court are pleadings. The term pleading technically refers only to papers that contain statements, or "allegations," describing the contentions and defenses of the parties to the lawsuit

Textbook pleadings definition: Documents that describe the claims and defenses of a lawsuit, including the complaint and the answer to the complaint

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Unless a defendant defaults, both the plaintiff and the defendant file pleadings with the court:

-The plaintiff files the first pleading, a complaint (or sometimes a petition), stating the basis for a lawsuit
-The defendant files an answer (or sometimes a response), responding to the complaint
-If appropriate, the defendant also files related claims against the plaintiff, other defendants, or third parties
-If necessary, the plaintiff, codefendants, or third parties reply or respond to a defendant's claims

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The pleadings set the framework for all of the steps and proceedings that follow

If an issue is not raised in the pleadings, the parties may be prevented from bringing it up at trial. Although pleadings relate to the contentions of the parties, these documents are always prepared by the law firm representing the party

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In spite of the numerous technical rules that govern pleadings, most courts take a liberal attitude in reviewing or judging the sufficiency of the documents

Courts usually prefer that the parties resolve their disputes on the merits of the case rather than on some technical rule regarding the format of a document

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Generally, to start court proceedings, a plaintiff prepares and files a complaint, or a petition. In the complaint the plaintiff states the basis for the lawsuit. The complaint does the following:

1. Identifies the plaintiffs and defendants in the lawsuit, an describes their status and capacity to sue and be sued
2. contains a statement showing that the court in which it is filed has proper jurisdiction and venue,
3. describes the factual basis for the lawsuit, and
4. requests or demands some relief from the court

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The complaint itself usually follows a set format with the following parts:

1. The "caption"-the part of the complaint that identifies the court in which the complaint is filed, the names of the plaintiffs and defendants, and the title of the document
2. The allegations (or cause of action)-a description of the parties, statements showing proper jurisdiction and venue, the factual basis for the lawsuit, and a description of the loss or damages incurred
3. The "prayer" or "wherefore" clause-a request for some relief or remedy from the court
4. The "subscription"-the signature of the attorney filing the document and the date. The subscription also includes the address and e-mail address of the attorney

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caption

the heading found in all pleadings, usually identifying the court, the parties, the nature of the pleading, and the docket number

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prayer

the part of the pleading (usually at the end) where the party asks the court to either grant or deny some relief

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subscription

a signature at the end of a document

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verification (verify)

statement at the end of a document and under penalty of perjury that the contents of the document are true

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There may be multiple plaintiffs and defendants, and these parties may be individuals or business entities, possibly using a fictitious name. Some complaints contain several causes of action based on complicated factual situations. Before you begin to draft any complaint you should analyze your case, determine the purpose of your pleading, and outline the general content of your document. Specifically you should know:

-who will be named as parties and how they will be named,
-how you will show that jurisdiction and venue are proper,
-the type of claims or causes of action that will be included in the complaint, and
-the type of relief you are demanding

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Identifying and Describing the Parties

The parties to the lawsuit are identified in the caption by their names, indicating whether they are plaintiff or defendant. In the body of the complaint, the parties are described in more detail. Normally identifying the plaintiff and defendant in the caption is relatively simple. At times, however, problems arise. As a paralegal involved in preparing or drafting a complaint, you should be aware of some of these problem areas

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Real Party in Interest

The plaintiff in any lawsuit should be the one who is entitled to the relief sought in the complaint. This party is known as the "real party in interest." In most cases, parties do not file lawsuits unless they have personally suffered some loss. However, at times a special relationship exists that creates a different situation. For example, an executor may want to sue on behalf of an estate, a trustee may sue on behalf of a trust, or a collection agency may wish to sue on a debt assigned to it for collection. In such cases, is the plaintiff the executor or the estate, the trustee or the trust, the collection agency or the creditor? Under Rule 17a of the Federal Rules of Civil Procedure, the executor, the trustee, and even the collection agency could be named as plaintiffs in the lawsuit even though they are not suing on their own behalf. However, if the action is in state court, appropriate state laws should always be checked

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real party in interest

The person who is entitled to the relief requested in a complaint, even though not named as a plaintiff

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capacity

Having the legal ability to do something such as initiating a lawsuit

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guardian ad litem

a person who is appointed by the court to represent a party in a lawsuit, where the party lacks the capacity to file the action; guardians ad litem are usually appointed for minors or those who are mentally incapacitated

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The "status" of a party refers to the type of entity that describes the party

Most commonly a party to a lawsuit is an individual, a corporation, a partnership or other unincorporated business, or a government agency. Unless a party is simply an individual, the status of the party is usually described both in the caption and in a separate allegation within the body of the complaint

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In addition, within the body of the complaint you would include a paragraph describing that status, such as the following:

Defendant, PARADISE FOUND, INC., is and was at all times herein mentioned a corporation duly organized and existing under the laws of the state of Idaho

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Capacity: Minors and Incompetents

The parties named in the complaint must have "capacity," or the legal right, to sue or be sued. Competent, adult individuals generally have the right to sue or be sued. However, children or incompetent adults do not have the capacity to pursue their own lawsuits. Unless a general guardian or conservator has already been appointed, the court will appoint a special person, referred to as a "guardian ad litem," to pursue the case on behalf of the minor or incompetent. In many jurisdictions, even the parents of a child cannot file a lawsuit on their child's behalf unless they are appointed as guardians by the court. A guardian ad litem is usually appointed at the request of the parent or guardian. The person wishing to be appointed files a motion or a petition with the court prior to filing any lawsuit, asking to be named as guardian ad litem. The complaint in such a case has the same caption as the petition or motion for the appointment of the guardian.

Although children or incompetents cannot sue in their own names, they can generally be named as defendants in the complaint. However, after they are served with the complaint, they may be entitled to have a guardian appointed to represent their interests. again, local law should be reviewed to determine whether appointment of a guardian ad litem for a defendant is necessary and, if so, how it is accomplished

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Corporations and Other Business Entitities

A corporation is a "person" for legal purposes, including lawsuits. As such it has capacity to sue or be sued in the corporate name. In fact, if a corporation is a plaintiff or a defendant in a lawsuit, it must be identified by the corporate name rather than the name of the directors, officers, or shareholders. Exceptions do occur, however, in the case of corporate defendants If the corporation fails to act like a corporation-not keeping corporate minutes, not holding meetings, failing to keep corporate assets separate from personal assets, and so on-then the individuals behind the corporation can be sued individually. This is known as "piercing the corporate veil." The directors, officers, or shareholders of a corporation will also be named individually as defendants if they have personally done something wrong

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Business entities other than corporations may be treated differently

An unincorporated association, such as a partnership, does not have legal existence separate and apart from the partners. It is proper, therefore, for such an organization to sue and be sued in the name of its individual members. Some jurisdictions allow a partnership to be sued either in the names of the individual partners or in the partnership name. Suing a partnership in the partnership name alone is not always a wise choice, however, because state laws may adversely affect the plaintiff's ability to collect any judgment. In a general partnership, the individual partners are personally liable for partnership debts. However, if the individual partners are not named in the complaint, state law may limit collection of any judgment to partnership assets, protecting the non-partnership assets of the individual partners. When suing a partnership or other unincorporated business entity, it is common to list both the partners' names and the business name

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Governmental Agencies

There is no question about the right of a government entity to sue on a claim. However, because of the common law doctrine of sovereign immunity (the king could not be sued), many jurisdictions have laws that limit and regulate the circumstances under which a government entity can be sued. Appropriate statutes must be checked to see if the claim is one for which the offending government agency can be sued. Appropriate statutes must be checked to see if the claim is one for which the offending government agency can be sued. Even when a statute permits the government to be sued, laws may require that claims be filed with the government agency before actually filing a lawsuit

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Parties Using Fictitious Names

Many businesses do not use their true names in the operation of their businesses. Individuals, either operating alone or with others, often choose to do business under a name that has more business appeal than their real names. At times, even corporations do business under a name other than the real corporate name. if a plaintiff uses a fictitious name in his business, a lawsuit should identify the plaintiff's true name. The plaintiff may indicate that he is doing business under another name.

If the plaintiff is doing business under a fictitious name, before the lawsuit is filed you should verify that the plaintiff has complied with all local laws regarding such usage. Some states, for example, require that fictitious name statements be filed, and failure to do so can affect the right of a party to sue.

When the defendant is doing business under a fictitious name, the true name of the party may be unknown to you when you are preparing the complaint. Your state may have various records that can be checked, but these are not always complete or accurate. Therefore, the defendant must initially be identified in the complaint by the fictitious name. When the true name of the defendant or defendants is determined, the complaint can be amended

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Fictitious Defendants

Not to be confused with parties who use a fictitious name in business is a concept known as "fictitiously named defendants," a procedure that is allowed in some jurisdictions this term usually refers to defendants whose very identity is unknown. They are usually identified as "Does." In jurisdictions that allow this use, "Does" are commonly named as defendants in complaints to protect against a new defendant being discovered after the statute of limitations has run. This allows the attorney to argue that the complaint was filed against the newly discovered defendant within the statute of limitations; he was just referred to by an incorrect name. The attorney then tires to amend the complaint to "correct" the name. "Does" are not generally used in federal court. Instead, Rule 15 of the Federal Rules of Civil Procedure allows plaintiffs to name a newly discovered defendants even after the statute of limitations has run, as long as the new party received notice that the lawsuit had been filed within the time allowed for service, would not be unduly prejudiced, and knew that but for a mistake, he or she would have been named as a party in the original lawsuit. In such a case, the date of filing against the new party "relates back" to the original filing date

textbook definition of "fictitiously named defendants": Defendants in a lawsuit who are not identified by their correct names; usually refers to the practice in some state courts of including several "Does" as defendants to provide for discovery of additional defendants after the statute of limitations has run

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Joining Multiple Parties

Many lawsuits involve disputes with multiple plaintiffs and/or defendants. The rules concerning joinder of multiple parties can be extremely involved and confusing. However, joinder of parties usually falls into 2 categories: joinder that is allowed but not required, known as "permissive joinder;" and joinder that is required, or "compulsory joinder." Before drafting any complaint with multiple parties, you may need to review these rules. This is determined by the rules of joinder, which are usually found in the appropriate state laws (or Rules 19-21 of the Federal Rules of Civil Procedure, if the case is in federal court)

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The rules regarding permissive joinder, joinder of parties that is allowed but not required, are very liberal

Parties are permitted to be joined together in a complaint as plaintiffs or defendants as long as there is some common question of law or fact and the claim arises out of the same occurrence or series of occurrences. Of course, you would not name someone as a plaintiff in a complaint unless your law firm represented that party

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Whether certain parties "must" be joined in the same complaint is a more difficult issue

Generally, if the court cannot resolve the case without the presence of a party, then joinder of the party is required. For example, suppose that title to a certain piece of real property is in question, and 4 different individuals are claiming ownership. If one of those parties files a lawsuit to determine ownership (known as a "quiet title action"), he must name the other 3 claimants as defendants. The court cannot determine ownership unless all 4 parties appear before the court. When parties are required to be joined in the lawsuit, they are sometimes referred to as "indispensable parties."

Even when it seems that joinder of certain parties is essential to the case, if jurisdiction over one of the parties is impossible to obtain, the court may allow the matter to proceed without that party being named. These cases obviously present complicated legal issues that must be thoroughly researched before you prepare the complaint

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permissive joinder

a concept allowing multiple parties to be joined in one lawsuit as plaintiffs or defendants as long as there is some common question of fact or law

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compulsory joinder

a party who should be included or named in a lawsuit; in federal court, Federal Rule of Procedure 19 sets out the criteria for compulsory joinder of parties

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indispensable party

a person who must be joined in the lawsuit and whose absence makes it impossible for a court to render a judgment