Advanced Drafting of Complaints and Answers: How to Go Beyond Required Content and Reach Multiple Audiences

Complaints and answers (including counterclaims) define the litigation playing field early in the case because they are viewed and weighed by many audiences with different goals. When counsel drafts pleadings merely sufficient to meet minimal legal pleading standards, counsel is communicating to only one person--the trial judge. By employing this overly simplistic approach, practitioners miss their best opportunity to frame the dispute without being caught up in length restrictions and bogged down by dry legal authorities and citations.

A complaint is the only document in a case that does not refer to any other material in the case. Lawyers all too often rely on forms and rules to draft complaints that echo case law and procedural rules. Such pleadings fail to grasp the attention of those who read them; especially defendants and their insurers who have the power to dispose of litigation with significant early settlements.

Similarly, many answers are generic recitations of "admit, admit, deny, deny," and a boilerplate listing of defenses. A plaintiff may react to a barebones answer by thinking that the defense has nothing to say beyond mere denials. Upon comparing a comprehensive, well-drafted complaint that tells a story against a rote answer that contains mere denials, the jury will likely fail to grasp the full impact of the defense’s side.

Listen as this panel of drafting and persuasion experts identifies how to go beyond the typical. The panel will provide advanced insight into the different audiences for these pleadings, and the varying ways these pleadings can be drafted to reach these audiences.

1. Basic review of sources of law
   1. The required content of pleadings
   2. Restrictions on the content of pleadings
2. Identification of audiences and needs
   1. Client
   2. Opposing client
   3. Opposing counsel
   4. Insurers/indemnitors
   5. Mediator
   6. Judge
   7. Jury
   8. Press
3. Complaint and counterclaim minimums and cures
   1. Including introductory matter
   2. Expanding plain allegations of jurisdiction and venue
   3. Defining terms to shape case vocabulary
   4. Attachments and inclusion by reference
   5. Using the "foregoing allegations" instead of details
   6. Damages "to be proven"
4. Additional minimums and cures for answers
   1. Expanding on plain denials
   2. Meaningful affirmative defenses
5. Potential dangers
   1. Motions to strike
   2. Admissions

The panel will review these and other essential matters:

• What is sacrificed when pleadings only meet minimum standards?
• Who are the multiple audiences for pleadings and what is each member looking for when reading the pleadings?
• What choices can be made to go beyond minimums?
• How can purported limits on the pleadings impact drafting choices?