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Starting The Story

Frank Hammond Aug. 7, 2023

We have seen that litigation is best practiced as the art of telling stories. This post explores how that process begins, because the start of litigation can be very formal. The trick is to get the story of the plaintiff or defendant through the formality that begins a case. As will be seen, that is not easy to do, and clients should not expect this part of the litigation to pass quickly or cheaply. Moreover, it is rare that a case is resolved at this stage. Most will move on to discovery, which is a topic for a different post.

How Things Get Going

A civil lawsuit begins with the filing with the court of a complaint. The complaint should tell the plaintiff’s basic story. In the federal system the complaint must give notice of facts supporting claims against the defendant. Claims are amalgamations of facts and that law that, if true, would be violations of law that a court should remedy. Most states use essentially the same procedure. The allegations of the complaint must be stated in individual numbered paragraphs, each building toward the ultimate conclusion that defendant is liable for some claim the plaintiff is making. Pleading a complaint is more art than science and lawyers spend a long time making one just right. The complaint concludes with a prayer that says what the plaintiff expects the court to award. The award can be money damages, equitable relief, or both.

Lawyers must make quite a bit of effort in putting together a good complaint. And not just for the obvious reason of wanting to win. Federal Rule of Civil Procedure 11 and other laws require lawyers to have a good faith factual basis for the complaint. All legal assertions in the complaint must have a basis in the law or the way the law should be. Failure to follow Rule 11 can have consequences for both the lawyer and the client. Always make sure that the lawyer you have hired will follow Rule 11 and other related laws and be patient while he or she does. Also keep in mind that the requirements of Rule 11 and related laws apply to all things filed with the court, so a good lawyer will be constantly reviewing the facts and law to ensure continuing compliance.

Although Federal Rule of Civil Procedure 8 allows a relatively simple set of allegations to make a complaint, keep in mind that it is the first opportunity the plaintiff has to start telling the story of the case. This adds another level of effort that an attorney must expend in drafting a good complaint. The hope is that the judge will start his or her understanding of the case by first reading the complaint. Indeed, good complaints often begin with an introduction that summarizes the plaintiff’s case and the law that governs that case. If you are a plaintiff, make sure your attorney does a good job setting out the story that justifies the award sought at the end of the complaint.

To place any litigation obligations on the defendant—except for the duty to preserve evidence—the complaint must be served on the defendant. The civil rules of procedure provide for several methods of making service, including the familiar personal service with a process server. In federal practice, the defendant has 20 days to appear in court after these types of service. In practice the usual way that complaints are served is through acceptance of service by the defendant’s lawyer. Then, a civil defendant normally gets 60 days to appear in federal court. All of this assumes that the plaintiff is not seeking equitable relief like a preliminary injunction. We will get to that later in this blog. One other practice pointer is that the parties ordinarily negotiate the actual date of first appearance to allow time for defendant’s lawyer to investigate and prepare the response. Lawyers control the timing of a case—not clients—so this type of accommodation is normal professional courtesy.

If a case is filed in state court, but would satisfy the requirements for jurisdiction in federal court, then the defendant has 30 days in which to “remove” the case to the federal forum. Removing a case transfers jurisdiction to the federal court, but it can be challenged if an argument against federal jurisdiction exists. Removal is usually a good idea in any case presenting complex federal issues, or if the case also spreads across numerous states. It can also be a good idea if the state forum is questionable in its ability to make a good decision, or would have difficulty planning for and overseeing the conduct of large and complex discovery. But federal court jurisdiction can be tricky, so before removing the case, the defendant’s attorney must carefully analyze the issues. Removal can be expensive if the plaintiff disputes it; another reason to analyze carefully whether removal is to the defendant’s advantage in each case where it is considered. 

It is my experience that defense lawyers will always recommend removing a case if they can. Federal court is seen as more favorable to defendants than are state courts. I am not aware of any study that proves this rule of thumb. So, clients should slow their lawyers down on removal and force them to carefully weigh all the factors that affect whether removal makes sense in a particular case. Only after weighing all of the factors in a case, should the decision to remove be made. Cost should be one of those factors, but in most cases not the controlling factor. The goal, after all, is to win.

Assuming any removal issues are resolved and the case is in federal court, the next requirement is that the defendant “appear.” A defendant can appear in either of two ways. First, the defendant can make a motion or motions to have the complaint dismissed. These are usually of one or both of two types. A motion to dismiss for lack of jurisdiction or a motion to dismiss for failure to state a claim. The second method of appearance is to skip motions practice and file an answer. The answer responds paragraph by paragraph to the allegations in the complaint and raises any affirmative defenses that may exist.

Come back next week to learn how and review what is involved in early motion practice. The series will end with a look on at the answer, which will help tell and explain the story for the reader.

If you have any questions or feedback, please feel free to leave a comment. Come tell us your story. With more than three decades of experience in these types of issues in Oregon, we have a deep understanding of how regulations can intersect with land use issues and development projects. For a consultation with our Portland office, call or email us directly. Make sure to follow us on Linkedin and message us there if you have any questions.