Pleading Pitfalls

This month we address defects commonly found in answers and affirmative defenses. Moreover, these are not just isolated oversights which can always be cured with impunity.

Rather, depending on the court you find yourself in, they can result in an order requiring (1) an amended pleading at the lawyer's own expense, (2) the embarrassment of a letter apprising the client that the amendment is being made without charge, and (3) a copy of the letter sent to the court.

Worse yet, a court may regard what you erroneously deemed a denial to instead be an admission, since F. R. Civ. P. 8(d) provides that "Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading."

Here are five examples of errors that crop up so often that at least one court has held they should be included in a published Appendix of common flaws:

1. "The allegations of this paragraph are legal conclusions and therefore require no response."

2. "The allegations of this paragraph are directed to another defendant and therefore require no response from this defendant."

3. "To the extent that there remain in this paragraph any inconsistent or additional factual allegations directed to this defendant, they are denied."

4. "The defendant admits that this paragraph purports to characterize certain documents, but such documents speak for themselves."

5. "... and the defendant demands strict proof thereof."

See Baumann v. Bayer AG, 2002 WL 1263987, 2002 U.S. Dist. LEXIS 10034 (N.D.Ill. June 5, 2002) (Shadur, J.) and State Farm Mutual Automobile Insurance Co. v. Riley, 199 F.R.D. 276 (N.D.Ill. 2001) (Shadur, J.).

Judge Shadur observes that Rule 8(b) requires a party to respond to all allegations of the complaint, including legal conclusions. And, just because an allegation refers to another defendant does not relieve the answering party from admitting or denying what he can.

Moreover, Judge Shadur asserts that "it is of course obvious that any purported response that begins with 'to the extent that' is wholly uninformative. How is the reader - whether opposing counsel or this Court - to divine just what [answering] counsel may view as being encompassed within that ambiguous language?" Baumann, supra.

Judge Shadur says the concept of "strict proof", whatever that may mean, is nowhere to be found in the federal rules, or for that matter in any other set of rules or in any treatise on the subject of pleading. State Farm, at 278. Likewise, he has never in fact heard a document speak for itself and regards this as an unacceptable device "used by lawyers who would prefer not to admit something that is alleged about a document (or who may perhaps be too lazy to craft an appropriate response to such an allegation)". State Farm, at 279.

Here's another example of improper, but commonly observed, pleading. When one seeks the benefit of a deemed denial but can neither admit outright nor deny outright the allegation, Rule 8(b) prescribes an unambiguous recipe for the pleader: "If a party is without knowledge or information sufficient to form a belief as to the truth of an averment, the party shall so state and this has the effect of a denial."

Despite this straightforward instruction, Judge Shadur says that "too many lawyers feel a totally unwarranted need to attempt to be creative by straying from that clear path. Most frequently such lawyers will omit any reference to 'belief,' or they will sometimes omit any reference to 'information,' or they may be guilty of both those omissions - and they do so even though Rule 8(b)'s drafters deliberately chose those terms as elements of the Rule's necessary disclaimer in order to set a higher hurdle for the earning of a deemed denial." State Farm, at 278.

Finally, ask yourself how frequently you have seen lawyers "mouth affirmative defenses in formula-like fashion ('laches,' 'estoppel,' 'statute of limitations, etc.)." Judge Shadur says this "does not do the job of apprising opposing counsel and this Court of the predicate for the claimed defense - which is after all the goal of notice pleading." State Farm, at 279.

Beware. These are pleading pitfalls that can be easily avoided.