Chapter 1: Before You Begin

• Pages: 3-23
• Author: Janet S. Kole

Before You

Begin

Many of the issues Iraise below can be answered by re-

viewing your local and federal court rules. In some juris-

dictions, like New Jersey,the rules come with ample

commentary and case citations, to help you hone in on

the fine points of procedure. The bottom line is: read the

rules as part of your pre-suit research.

A. Making Sense of Your Client’sStory

Your client may be highly sophisticated, and be able to

narrate her claims in away that allows you to sit down

and write the complaint. Many clients, however,are ei-

ther unsophisticated or emotional about their claims, or

both. In that case, you may find yourself wondering what

in the heck it’sall about.

In the latter case, you must be an investigator,apsy-

chiatrist and areporter all rolled into one. Areporter

asks “who, what, when, where and why” whenever she

writes an article. That’show you should begin with your

analysis of your client’sstory and of your notes.

Chapter One

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Who acted against your client (what parties should I

sue)?

What did they do (what harm did your client suffer,and

are their theories of recovery for that harm)?

When did it happen (is there astatute of limitations

problem)?

Where did it happen (where is there jurisdiction, and

where is venue proper)?

Why did the defendant act the way he did (are there de-

fenses)?

As the psychiatrist, you must ask yourself if your client

has an axe to grind that makes him an unreliable narrator

as to the events that occurred. What is the client’scurrent

relationship with the prospective defendant? What was the

client’spast relationship? Has the client sued anyone be-

fore? Has the client sued this particular defendant before?

Why is the client so emotional?

As an investigator,you will do some of your own dig-

ging before preparing the complaint, which includes mak-

ing your own determination of the facts alleged by your

client. Did your client’sneighbor really sneak into your

client’shouse to steal his vacuum cleaner? Check to see if

your client made acomplaint to the police; interview some

neighbors. If the allegation seems far-fetched, it’sbest to

leave it out of your complaint.

Even where your client is acorporation, and your con-

tact is the sophisticated general counsel, there may be facts

of which he is unaware. If there appear to be holes in the

story,orifthere are facts you must discover in order to pre-

4Pleading Your Case: Complaints and Responses