I.        Stages of a Trial

A.     Retention

B.     Pre-filing

C.     Pleadings

1.      Old-school English pleading

a)      Writ had to be filed

b)      Later called a “form of action” – had familiar issues, such as trespass, covenant, debt, assumpsit

c)      Defendant had to answer through three choices:

(a)   Plea in Bar

(i)    Traverse – “Not true”

(ii)  Confession and avoidance – “Yes, but….”

(b)   Dilatory Plea

(i)    Jurisdiction – “Not here”

(ii)  Procedure – “Not now”

(c)   Demurrer – “So What”

d)      Flaws of common law pleading

(1)   Could only file one answer – efficient but not just

(2)   Could only file one type of claim – couldn’t join them as new facts came to light

(3)   No process of discovery as an official aid to trial

(4)   Acumen of lawyer was the most important part – not just

2.      Field Codes – Fact Pleading/Code Pleading – around 1848

a)      “One form of action” – state the complaint and the facts – no pigeon-holing, state the answer, and allow for demurrer.  That’s it.

b)      Process updated by the legislature

c)      But the facts had to be very specific – hard to get past the complaint stage.  Why?

(1)   Notice to the defendant of what is alleged against him

(2)   Notice to the court about what is alleged

(3)   Ability to decide whether the suit warrants dismissal

d)      Gillespie v. Goodyear – demurrer sustained because conclusions were stated instead of facts – made clear the need for “ultimate facts”, derived from the elements of the substantive claim, as opposed to “legal conclusions” or “mere evidence” – one of the faults of fact pleading.  Pg. 126.

e)      Did usually give leave to amend complaints when insufficient

f)        MAIN FLAW OF FACT PLEADING – NO DISCOVERY.  Plaintiff may not have all the facts by the time they file the complaint.   There is no room for “evidence”, facts which point toward a legal conclusion but require inference.  “Facts” are actually pointing straight toward the legal conclusion.  These are not always present.  ????

g)      Code Pleading is still used in IL, with some amendments.

3.      Notice Pleading

a)      FRCP – after 1934 federal Rules Enabling Act

b)      What you need to show:

(1)   Basis of jurisdiction

(2)   Claim for relief

(3)   What kind of relief you want

c)      Major changes from code pleading

(1)   Rule 8(a)(2) – “short and plain statement of the claim showing that the pleader is entitled to relief.”

(2)   Can use legal conclusions in the complaint.

(3)   Only chance to throw out a case (demurrer) is 12(b)(6)

(4)   MORE CASES GET THROUGH THAN UNDER FACT PLEADING.  Some may be meritless, others may have merit and would have been lost under fact pleading.

(5)   Distinction:  Code Pleading = complaint à trial

                                      Notice pleading = complaint à discovery à summary judgment à trial

                                      Result was that much less had to be in the complaint

d)      Gibson v. Conway (1957) – Justice Black, considered well-favored statement that is the epitome of notice pleading. “the claim cannot be dismissed for failure to state a claim unless it appears beyond a doubt that the plaintiff can prove no set of facts in support of his claim.”  African-American rail workers trying to prove discrimination because all their jobs were cut during a recession.

e)      US v. Board of Harbor Commissioners (1977) – the government charged the board with dumping oil into the Delaware harbor.  The board filed a 12(e) motion for more definitive statement.  The court rejected it, even though the complaint states almost no facts at all.  The court held there was enough to answer, and that the defendants were trying to use 12(e) to show that the plaintiffs did not have enough facts, so that they could then file a 12(b)(6).  The board could have used Rule 11, but it had no “bite” in 1977.

f)        Inconsistent alternative allegations are ok – 8(e)(2).

(1)   McCormick v. Kopmann – wife sues both other man on road and tavern for her husband’s death while drinking.  Defendant could not WIN on both counts, but could plead both counts as being mutually exclusive and let the facts prove.

(2)   Can have many defendants.  Theoretically, could have 50 defendants, but at some point this becomes absurd (wallet example).

4.      Rules for Plaintiff’s Pleading

a)      8(a)(2) describes it.  What you need:

(1)   Basis for jurisdiction

(2)   Claim on which relief can be granted

(3)   Demand for relief.

b)      Rule 9

(1)   9b and its two sentences:

(a)   When fraud or mistake is alleged, must be more specific

(i)    Easy to allege fraud or mistake as a nuisance suit

(ii)  Lots of acts can look innocent in fraud – they might also BE innocent

(b)   State of mind, “scienter”, can be alleged generally, but must have facts to support the inference of malice

(2)   Cases:

(a)   Ross v. AH Robins (1979) – contraceptive fraud suit dismissed, as the main link was a report published around that time that criticized the drug as being dangerous.  However, there were no facts to show that AH Robins had any knowledge of the existence or credibility of the report.

(b)   Cash Energy v. Weiner (1991) – Keaton (Judge), who was on the Federal Rules Committee, cites the increasing trend toward having 9b apply more specifically, and dismisses a case about cleanup costs for dumping chemicals for lack of specificity.

(c)   Leatherman v. Tarrant County (1993, S.C.) – Rhenquist allows a case about civil rights abuse in a municipality to go through despite a 9b motion.  Reads the law to say “fraud and mistake” and that’s it.  Even though municipalities have increased immunity, they have to follow 8a just like everyone else.

(d)   Even after Leatherman, many judges expand the scope of Rule 9.

(3)   When Rule 9 might not work under Leatherman, can try 8f for “substantial justice” promotion, or 12e.

c)      Recognizing the possibility for 12(b)(6)

(1)   Mitchell v. Archibald – man in his truck who gets robbed and injured across the street from point of delivery.  The complaint claimed “on the premises” so it was thrown out on a 12b6.  As this was filed in federal court, as opposed to IL court, could have used notice pleading and not defined “on the premises” as being “across the street.”  However, perhaps the lawyer knew the case would ultimately turn on this question, so he just got it out there early.  There would be an incentive to plead generally, as it might settle, and the personalization of the case’s facts might sway the judge to alter the law

5.      Defendant’s Pleading

a)      What can the defendant do when he gets the plaintiff’s pleading?

(1)   File a 12(e) – motion for clarification – plaintiff will amend, then will have to answer.

(2)   File a 12(b) – motion to dismiss – if denied, then must answer.

(3)   Settle the claim

(4)   Answer the claim – Rule 8(b), 8(c)

(5)   Default judgment – Rule 8(d), Rule 55

6.      Answering

a)      No answer – default judgment – Rule 8(d)

(1)   Usually, court is not watching.  Will wait for the plaintiff to ask for a default, then enter the notice (55a)

(2)   Judgment of default (55b)

(a)   55b1 – clerk enters it.  ONLY if defendant has not appeared at all, and if there is no question about the amount in dispute.

(b)   55b2 – judge enters it.  If the party has appeared at any time, they get 3-day notice of the default process.  A hearing may be necessary.

(3)   Setting aside a default (55c)

(a)   For good cause shown.  If the judgment has already been made and entered, it has to be in accordance with 60b, which is much higher stakes. 

(b)   Often depends on whether or not the plaintiff will suffer prejudice.

(c)   Sheperd Claims v. William Darrah – defendant’s lawyer and lawyer’s secretary misunderstood the dates as extended by a meeting with the plaintiff.  Missed the date, but filed promptly after realizing mistake.  Although the court held the conduct inexcusable, it set aside the entry of default, as it felt that the mistake was in good faith, the plaintiff had not been prejudiced, and the defendant should not lose his day in court due to the lawyer’s ineptitude.

(4)   US can’t default (55e)

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