MEMORANDUM
TO: ASSOCIATE
FROM: PARTNER
DATE: January 18
RE: MISSY STEP
Now that our preliminary investigation is complete, the time has come for us to begin thinking about drafting a complaint to file. Where, when, and how to bring the complaint and against whom are questions that must be answered before the complaint is filed. Once the case is filed, the plaintiff no longer has exclusive control over its course.
There are many variables in the litigation process that the plaintiff has the ability to control or, at least, to make the initial choice. These variables include choosing the forum, choosing the defendant or defendants, defining the scope of the complaint, fashioning the request for relief, and electing to request a jury.
The complaint will shape the early course of the litigation, often becoming less important once discovery, motions, and orders refine the issues, but possibly coming back to haunt the plaintiff if the court limits evidence at trial to the boundaries of the complaint. The complaint is also important for the other uses to which it may be put: complaints are often read by outsiders, including the press or by a judge trying to learn something about the case. The complaint also plays a part in determining the claims and issues of the case for res judicata, preclusion purposes and some insurance coverage interpretations.
The primary object in drafting the complaint is to meet all the minimum pleading requirements, thereby avoiding much of the motions practice that can sidetrack or derail a case.
Drafting the complaint is usually not an exercise in creative writing; just cover the basics. Since the function of complaints in most jurisdictions is simply to provide notice of claims, the complaint need not go into elaborate detail. But it should raise all issues the party intends to pursue, to prevent later objections on relevance or surprise grounds, and there should be sufficient factual allegations to demonstrate that counsel has satisfied the requirements of Federal Rule of Civil Procedure 11 or New Mexico Rule of Civil Procedure Rule 1-011. Before filing a complaint, counsel must review the facts, procedures, and applicable law to determine that the case would not be frivolous. See Fed. R. Civ. P. 11 and NMRA Rule 1-011.
As you prepare to draft our complaint, I wanted to review some of the steps you must take before and during the drafting process.
You may need to do some preliminary legal research to determine the existence of a duty, breach of that duty, causation, damages, and the type of liability to be assigned to the defendant.
Once preliminary investigation is complete, and all prerequisites and alternatives to litigation have been exhausted, the time comes for the plaintiff to file the complaint. Before filing a complaint, counsel must review the facts, procedures, and applicable law to determine that the case would not be frivolous, see Fed. R. Civ. P. 11 and NMRA Rule 1-011.
Drafting the Complaint-Checklist-Form of the complaint
Remember that the complaint is an admission and can be used against the party.
All complaints begin with a caption which states the name of the court, names and addresses of the parties, a space to insert the file or case number, and the title of the pleading, e.g., "complaint." Fed. R. Civ. P. 10(a); NMRA Rule 1-010(a).
Identify the parties in a case by name and provide further information such as state of citizenship, address, and a brief statement of their role in the case.
Jurisdiction and venue must be alleged.
Since the function of complaints in most jurisdictions is simply to provide notice of claims, the complaint need not go into elaborate detail, but (a) it should raise all issues the party intends to pursue, to prevent later objections on relevance or surprise grounds, (b) there should be sufficient factual allegations to demonstrate that counsel has satisfied the requirements of Rule of Civil Procedure 11.
Counsel should draft clear, precise pleadings whose component parts are stated in a logical order; a confusing complaint may signal a frivolous claim.
Complaints should clearly identify and separately state each claim. The facts necessary to support each claim should be stated with the claim or in a general factual section.
After the facts, each legal claim usually appears organized into a separate count for each claim, Fed. R. Civ. P. 10(b), NMRA 1-010(B)
(a) each count may begin with a heading stating the nature of the count, e.g., "negligence," "contract," “vicarious liability”
(b) many attorneys expressly adopt the factual allegations into each count, e.g., "the facts alleged in paragraphs ____ through ____ are incorporated in support of this claim," Fed. R. Civ. P. 10(c), NMRA 1-010(C)
(c) although counsel need not cite legal authorities in the complaint, citation to the controlling statute or constitutional provision should make the nature of the claim very clear,
(d) throwing a jumble of claims into a complaint without setting out a clear statement of the factual and legal basis for each claim can only lead to confused discovery, perhaps a successful motion to dismiss, and a confusing trial.
The pleading should organize the facts and legal claims into numbered paragraphs, each containing one claim or set of related facts, whenever possible. Fed. R. Civ. P. 10(b), NMRA 1-010(B).
Alternative factual allegations and legal claims may be pleaded, even if inconsistent, Fed. R. Civ. P. 8(e), NMRA 1-008(E)
Allege facts that are relevant to establish the claims and legal or equitable remedies the plaintiff desires.
Allege sufficient facts to demonstrate that, if plaintiff can prove these facts, relief will be appropriate.
The plaintiff does not have to have admissible evidence to prove every point, since that is part of the purpose of discovery.
Certain allegations, such as contract, lack of informed consent, fraud or mistake, must be pleaded more specifically.
The plaintiff should raise all known claims to provide notice to the defendant, to expand the scope of relevant discovery, and to avoid claims of surprise by the defendant.
For claims or factual allegations of which counsel is not entirely confident, it is advisable to qualify the statements about them in the complaint (i.e., "on information and belief') or simply amend the complaint later to add the information if discovery or further investigation supports it.
Avoid exaggerating the facts in the complaint. A grossly exaggerated claim may undermine the plaintiff's credibility.
Following the claims, the request for relief should state the various forms of relief counsel seeks, including damages (compensatory and punitive),
Rule 8(a) permits pleading of alternative or different types of relief,
also include a request for "such further relief as the court may deem appropriate,”
a request for attorney's fees, costs, and pre- and post-judgment interest may also be included.
To receive punitive damages, you must expressly allege and demonstrate an intentional wrong or wanton, gross, or reckless negligence.
Plaintiff should, whenever possible, separately state each harm for which compensation is demanded.
Plaintiff should also separately state demands for punitive damages, attorney's fees, pre- and post-judgment interest, and costs.
Counsel must sign the pleading, indicating that it complies with all requirements.
Please take a shot at drafting a complaint on behalf of Ms. Step. We have decided that Ms. Step's case will be brought in the Second Judicial District Court, County of Bernalillo, in the State of New Mexico.
For this drafting project, please read the applicable rules of civil procedure: New Mexico Rules of Civil Procedure Rules 1-003, 1-007(A), 1-008(A) and (E), 1-008.1, 1-009, 1-010, and 1-011. Also, take a look at the New Mexico Uniform Jury Instructions: Section 4, Section 12, Section 15, Section 16, and Section 18 deals with Damages. I have enclosed certain jury instructions for your review. Do not assume that all of these are applicable to Ms. Step's case; some may be and other may not. You may use these as a guide, though. I also enclose for your review some of the motor vehicle statutes. Again, don’t assume that you must use all in your drafting of the complaint, but I enclose for your review.
UNIFORM JURY INSTRUCTIONS – CIVIL
Section 4: AGENCY; RESPONDEAT SUPERIOR
13-403. Employee-employer; definition (master and servant).
An employer is one who has another perform certain work and who has the right to control the manner in which the details of the work are to be done, even though the right of control may not be exercised.
The person performing the work is the employee.
SECTION 16: TORT LAW - NEGLIGENCE
13-1601. Negligence (of all persons); definition.
The term "negligence" may relate either to an act or a failure to act.
An act, to be "negligence", must be one which a reasonably prudent person would foresee as involving an unreasonable risk of injury to [himself] [herself] or to another and which such a person, in the exercise of ordinary care, would not do.
A failure to act, to be "negligence", must be a failure to do an act which one is under a duty to do and which a reasonably prudent person, in the exercise of ordinary care, would do in order to prevent injury to [himself] [herself] or to another.
13-1603. Ordinary care.
"Ordinary care" is that care which a reasonably prudent person would use in the conduct of the person's own affairs. What constitutes "ordinary care" varies with the nature of what is being done.
As the risk of danger that should reasonably be foreseen increases, the amount of care required also increases. In deciding whether ordinary care has been used, the conduct in question must be considered in the light of all the surrounding circumstances.
13-1604. Duty to use ordinary care.
Every person has a duty to exercise ordinary care for the safety of the person and the property of others.
[Every person also has a duty to exercise ordinary care for the person's own safety and the safety of [his] [her] property.]
13-1616. Accident alone not negligence.
The mere happening of an accident is not evidence that any person was negligent. Neither the fact that damages are claimed due to the accident nor the fact that this lawsuit was filed is evidence of any negligence on the part of any person.
SECTION 18: DAMAGES
13-1802. Measure of damages; general; with preexisting conditions.
If you should decide in favor of the plaintiff on the question of liability, you must then fix the amount of money which will reasonably and fairly compensate [him] [her] for any of the following elements of damages proved by the plaintiff to have resulted from the negligence [wrongful
conduct] as claimed: ________________________________________________________
_________________________________________________________________________.
(NOTE: Here insert the proper elements of damages and, in a personal injury case, the instructions which immediately follow may be applicable but, in other types of litigation, the trial lawyers will need to insert here the proper elements applicable under the proven facts and the particular law governing the specific circumstances.)
Whether any of these elements of damages have been proved by the evidence is for you to determine. [If you find that, before any injury in this case, plaintiff was already impaired by a physical or emotional condition, plaintiff is entitled to compensation for the aggravation or worsening of the condition, but not for elements of damages to the extent they were already being suffered.] [However, damages are to be measured without regard to the fact plaintiff may have been unusually susceptible to injury or likely to be harmed. The defendant is said to "take the plaintiff as he finds [him] [her]," meaning that the defendant, if liable, is responsible for all elements of damages caused by the defendant's conduct even if some of the plaintiff's injury arose because the plaintiff was unusually susceptible to being injured.]
Your verdict must be based upon proof and not upon speculation, guess or conjecture. Further, sympathy or prejudice for or against a party should not affect your verdict and is not a proper basis for determining damages.
13-1803. Earnings.
The value of lost earnings [and the present cash value of earning capacity reasonably certain to be lost in the future].
13-1804. Medical expense.
The reasonable expense of necessary medical care, treatment and services received [including prosthetic devices and cosmetic aids] [and the present cash value of the reasonable expenses of medical care, treatment and services reasonably certain to be received in the future].
13-1805. Nonmedical expense.
The reasonable value of necessary nonmedical expenses which have been required as a result of the injury [and the present cash value of such nonmedical expenses reasonably certain to be required in the future].
13-1806. Nature, extent, duration.
The nature, extent and duration of the injury [including disfigurement].
13-1807. Pain and suffering.
The pain and suffering experienced [and reasonably certain to be experienced in the future] as a result of the injury.
The guide for you to follow in determining compensation for pain and suffering, if any, is the enlightened conscience of impartial jurors acting under the sanctity of your oath to compensate the plaintiff with fairness to all parties to this action.
13-1808. Aggravation of preexisting condition.
The aggravation of any preexisting ailment or condition, but you may allow damages only for the aggravation itself and not for the preexisting ailment or condition.
13-1810. Loss of services of spouse.
The reasonable value of the services of [his wife] [her husband] of which the family has been deprived [and the present cash value of services of [his wife] [her husband] of which the family is reasonably certain to be deprived in the future].
13-1810A. Loss of consortium.
The emotional distress of __________________ (plaintiff) due to the loss [of the society], [guidance], [companionship] and [sexual relations] resulting from the injury to __________________ (name of injured or deceased spouse or child of plaintiff).
13-1811. Mitigation.
In fixing the amount of money which will reasonably and fairly compensate plaintiff, you are to consider that an injured person must exercise ordinary care to minimize or lessen [his] [her] damages. Damages caused by [his] [her] failure to exercise such care cannot be recovered.
13-1821. Future damages; extent and amount.
If you have found that plaintiff is entitled to damages arising in the future, you must determine the amount of such damages.
If these damages are of a continuing nature, you may consider how long they will continue.
[As to loss of future earning ability, you may consider that some persons work all their lives and others do not and that a person's earnings may remain the same or may increase or decrease in the future].
3-1822. Future damages; discount to present cash value.
In fixing the amount you may award for damages arising in the future, you must reduce the total of such damages by making allowance for the fact that any award you might make would, if properly invested, earn interest. You should, therefore, allow a reasonable discount for the earning power of such money and arrive at the present cash value of the total future damages, if any.
Damages for any future pain and suffering are not to be so reduced.
13-1827. Punitive damages; direct and vicarious liability.
(Introduction)
In this case, ________________________ (name of party making claim for punitive damages) seeks to recover punitive damages from ________________________ (name of party against whom punitive damages are sought, either directly or vicariously). You may consider punitive damages only if you find that ________________________ (party making claim) should recover compensatory [or nominal] damages.
(Direct Liability)
If you find that the conduct of ________________________ (name of party against whom direct liability for punitive damages is asserted) was [malicious], [willful], [reckless], [wanton], [fraudulent] [or] [in bad faith], then you may award punitive damages against [him] [her] [it].
(Vicarious Liability)
Additionally, if you find that the conduct of ________________________ (name of agent or employee of party on whose conduct vicarious claim for punitive damages is based) was [malicious], [willful], [reckless], [wanton], [fraudulent] [or] [in bad faith], you may award punitive damages against ________________________ (name of party against whom vicarious liability for punitive damages is asserted) if:
(A) ________________________ (name of agent or employee) was acting in the scope of [his] [her] employment by ________________________ (name of party) and had sufficient discretionary or policy-making authority to speak and act for [him] [her] [it] with regard to the conduct at issue, independently of higher authority; [or if]
(B) ________________________ (name of party) in some [other] way [authorized,] [participated in] [or] [ratified] the conduct of ________________________ (name of agent/employee).
(Definitions)
Malicious conduct is the intentional doing of a wrongful act with knowledge that the act was wrongful.
Willful conduct is the intentional doing of an act with knowledge that harm may result.
Reckless conduct is the intentional doing of an act with utter indifference to the consequences. When there is a high risk of danger, conduct that breaches the duty of care is more likely to demonstrate recklessness.
Wanton conduct is the doing of an act with utter indifference to or conscious disregard for a person's [rights] [safety].
(Conclusion)
Punitive damages are awarded for the limited purposes of punishment and to deter others from the commission of like offenses. The amount of punitive damages must be based on reason and justice taking into account all the circumstances, including the nature and enormity of the wrong and such aggravating and mitigating circumstances as may be shown. The property or wealth of the defendant is a legitimate factor for your consideration. The amount awarded, if any, must be reasonably related to the injury and to any damages given as compensation and not disproportionate to the circumstances.