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Drafting a complaint

I write a lot of complaints…a lot. I’ve learned a few things over the last few years. When I first started my career, I saw a complaint as merely the vehicle to initiate litigation. It was just the first step. As I progressed, however, I realized how important a well-drafted complaint is to a case. There’s nothing like a good ol’ motion to dismiss to teach you the value of pleading well.

I used to draft a complaint and later, in discovery or in opposition to a motion, figure out the issues of my case. Eventually, I wised up. I learned to put in a lot of work in the front end. The better I could prepare my case, work up my damages, identify and plead around issues, the faster, and better, the result.

Before you write a complaint, consider the following:

1.  Research. Research doesn’t just mean reading a case or pulling a statute. Of course, legal research is a no-brainer. But, also use Google. Talk to colleagues. Try typing some of the main facts into Westlaw or Lexis without including the cause of action you think it involves. You might be surprised to find that there is a cause of action or remedy that you hadn’t considered or maybe you didn’t even know existed.

Additionally, you want to be able to easily converse with counsel about the legal issues of your case. There is nothing worse than fumbling through a conversation with opposing counsel.

2.  Trust your gut. This one dovetails with my research suggestion above. Recently, I was drafting what I thought was a simple breach of contract case. Something was nagging me. Although the complaint was drafted, I felt like I was missing something. I wasn’t ready to file it.

So, I typed some of the operative facts into Lexis and discovered the Construction Trust Fund Statute. Who knew?!?! To be fair, I’m sure a lot of lawyers know about it but this one did not. It enabled me to claim personal liability against the officers of a company that failed to pay my client for materials used in a construction project.

3.  Identify experts. I used to begin locating experts when the scheduling order said it was time to do so. Now, before I even draft the complaint, I attempt to identify which experts I might need in a case and begin the process of contacting potential experts and ultimately retaining them. I’ve had experts help me articulate the applicable standard of care and others identify potential causes of action which I hadn’t considered previously. If nothing else, locating and retaining experts before filing your complaint might keep your competition from getting to them first!

4. Damages. Be able to categorize, quantify and articulate your damages. When dealing with opposing counsel, I find it beneficial to be transparent as to damages from the start. When defense counsel can evaluate the value of a case from the outset, an early settlement is that much more likely.

In summary, unless you’re up against a statute of limitations, use the time before filing the complaint to your advantage. Get your case in the best position that you can. Get organized and get your ducks in a row.

The complaint shouldn’t be your starting point. Instead, it’s just the point in litigation where you invite the other side to participate.

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