Introduction to Legal Writing — Chapter 12

• The complaint is the initial pleading in a civil action where the plaintiff alleges a cause of action and asks that the court remedy the wrong done to the plaintiff

  • cause of action: facts sufficient to support a valid lawsuit

• The answer is a pleading in response to the complaint

  • affirmative defense: the part of the defendants answer to a complaint that goes beyond denying the facts and arguments of the complaint (burden of proof is on defendant)

  • counterclaim: a claim made by a defendant in a civil lawsuit that “sues” the plaintiff. it can be based on entirely different things from the plaintiff’s complaint (a permissive counterclaim)

• pleadings must conform to applicable court rules and statutes

• pleading forms may be used to draft a pleading but must be tailored to the particular situation that you’re dealing with

  • you could also consult form and formbooks

• Generally, the complaint contains: a caption, claims, prayer for relief, and signature block

• Generally, the answer contains: a caption, defenses, affirmative defenses and counterclaims, and a certificate of service.

• Evidentiary facts are facts admissible in evidence

• Ultimate facts are the facts in a case upon which liability is determined or based

• A legal conclusion is a statement of the results in a situation that involves applying the law to a set of facts.

When drafting a complaint, do:

• Separate evidentiary facts, ultimate facts, and conclusions of law

  • defendant will be more likely to admit to allegations

• Write in plain English.

• Place only one or two sentences in each numbered paragraph

  • could deny whole paragraph if one statement is wrong

• Do not include more evidentiary facts than necessary

• Use descriptive words in allegations favorable to the plaintiff, use abstract words for allegations adverse to the plaintiff

• use objective language

• state facts precisely

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