Facts

• Pages: 47-72
• Author: Samuel Issacharoff

47

Chapter 3

FACTS

If the p remise of modern American civil procedure were to be

expressed in one sentence, it would be as follows: Cases should be

resolved o n their merits. The discussion of pleading highlights the

efforts to move dispute resolution away from technical wizardry and

into a more streamlined process that allows par ties to address the

actual substance of their grievances. Most often the key to the merits

of a dispute lies in the facts. Who breached the contract, who ran the

red light, who hired or fired for discriminatory reasons, who said

what to whom—all the standard sources of disagreement about a

perceived injustice start off as matters of fact. It may be that whether

the breach of contract was legally justified, or whether running the

red light was a sufficiently prox imate cause of the accident, or

whether the discriminatory reason was within the scope of legal

prohibitions, will at the end o f the day prove to be questions of law.

But, assuming the stated claim is sufficient to survive a mot ion to

dismiss, the hard part is determining whether it is true. This is the

world of facts.

Attention to facts perme ates the pleading rules. Despite the

liberal pleading requirements of Rule 8, the Rules demand

attentiveness to factual detail from the parties. As discussed in

Chapter 2, the pleading rules require both parties to set forth facts

with precision in such a way as to force a convergent set of factual

premises about the case, which in turn is presumably a critical

inducement to settlement . From the onset of litigation, the p arties

face corresponding obligations to frame factual statements precisely,

to the extent that they are known. Under Rule 10, the plaintiff is

required to list all f actual statements separately in discrete,

numbered paragraphs. That in turn triggers the defendant’s

obligation under Rule 8 to admit or deny all factual claims, or to state

that the defendant is without sufficient information to answer—the

functional equivalent of a denial.

The purpose of precise statements of facts and exact admissions

or denials is to move the litigation as quick ly as possible from the

pleading stage to the factual merits. Leaving aside the test for legal

sufficiency of a claim under a motion to dismiss and the uncertainty

created by the “plausibility” pleading standa rd introduced in Bell

Atlantic v. Twombly

1

(topics discussed in Chapter 2), the procedural

system is designed to force the parties to confront the facts of the case

1

550 U.S. 544 (2007).

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FACTS

Ch. 3

as quickly and as efficiently as possible. As a result, the answer to

the complaint is generally held to a higher standard of precision than

the complaint itself. The a nswer is structured to d efine the ambit of

factual disagreement and frame the bounds of pretrial discovery. An

admitted claim in the answer serves to remove that factual issue

from dispute and allows the parties to fo cus their attention and

resources on matters upon which they disagree or are uncertain. A

denial, by contrast, is an invitation to further examination of the

basis of the disagreement through the discovery process.

For this process to be effective, the parties must be honest. Thus,

as demonstrated in the classic teaching case Zielinski v. Philadelphia

Piers, Inc.,

2

courts tend to react negatively to evasive defendant

behavior, even where a plaintiff may also have been sloppy. Under

the facts of Zielinski, an i njured worker sued a firm that h e thought

was his emp loyer for workplace injuries. In fact, the defendant had

spun off its operations to a parallel company with overlapping owners

and a joint insurer, p resumably for the express purpose of shielding

its assets from exposure to liability for workplace injuries. Unaware

of this co rporate reorganization, the plaintiff sued the firm he

believed still responsible for the workplace. When the orig inal

defendant coyly skirted admitting that it had indeed ceased

operating the loading dock w here the accident occurred, the hapless

plaintiff found that the statute of limitations had run against his

actual employer, thereby foreclosing any remedy. Despite rep eated

sloppiness by the plaintiff, including in the initial formulation of

factual statements in the complaint, the district court ordered a jury

instruction tha t the original defendant was to be deemed the

employer, the facts notwithstanding. While an extraordinary

remedy, the counterfactual jury instruction was deemed necessary to

condemn deceptive behavior contrary to the efficient production of

information. The critical lesson is that the answer is par t of the

production of information, in which exacting conditions of rectitude

must prevail. Even though the plaintiff could have avoided much of

the harm by clearly framing his factual statements, as required by

Rule 10, and despite his f ailure to follow up on evidence that might

have revealed the true owners o f the worksite, the obligation of

factual forthrightness imposed on the defendant could not be escaped

through formalistic evasion.

As evident from Zielinski, litigation commences its factual

investigation as soon as the defendant answe rs the complaint.

Outside of matters specifically reserved for factual contestation by a

denial, the ambit of factual dispute begins to narrow immediately.

The sole exception comes with the capacity to raise w hat are termed

2

139 F.Supp. 408 (E.D. Pa. 1956).