Part II The Complaint The Complaint

• Jurisdiction: New York

Part II —The Complaint

The Legal Writer continues from the last Journal issue with techniques on writing a complaint. The complaint “introduces you and your client to the court.”⁴⁶ The complaint tells the court and your adversary what you want and why. The complaint also shows how competent you are as an attorney, how prepared you are, and how serious you are about your client and your client’s case.⁴⁷ Because the complaint is the first and sometimes the last impression you’ll make, think before you write.

Before You Write, Consider Your Audience

When you draft litigation documents, your primary audience is the court. Your goal is to persuade the court to rule for your client. Also important is the impact a well-written document will have on your opposition. Clear, concise, and logical documents set the tone to interact with opposing counsel. The best attorneys always produce well-written papers, even when their case has weaknesses. When drafting your papers, frame the lawsuit in a way that causes your adversary to recognize the strength of the case even when the case isn’t a slam dunk. The strength of your papers might be enough to secure a satisfactory settlement.

The court and your adversary aren’t the only ones who’ll read your papers. Others who might see them include your client, counsel for other plaintiffs or defendants, attorneys in your office, the press, and possibly jurors.⁴⁸ Non-attorneys like your client must understand your papers.⁴⁹ Clients who don’t understand what you’ve written will skim over the material and miss errors. That can be embarrassing and, perhaps, deadly to your case. Write litigation documents, therefore, for all readers to understand.

Obtain the Facts

Gather all the facts.⁵⁰ Investigate. Find out what happened from your client and any available person familiar with the issue or incident.⁵¹ Interviewing clients to get the necessary facts is a delicate and difficult task, especially when their injury or loss is traumatic. Many clients omit or forget helpful and even harmful information. Some clients omit information because they fear that you’ll disapprove, that they’ll disappoint you, that the truth will weaken their case, or that some information is irrelevant even though it is critical to the case.⁵² The key to a good client interview is to listen. Be patient and empathetic while clients tell you their story. Without being judgmental, encourage clients to tell their story in detail. Ask the basic who, what, when, where, why, and how: “The more exhaustive you are at the interview and investigation stage, the easier it will be for you to determine (as you research and organize) if the case or the defense has merit.”⁵³

Always verify your client’s facts independently. Failing to investigate your client’s story might put you at risk of paying costs, sanctions, or both for commencing a frivolous action.⁵⁴ Interview witnesses and get relevant documents and statements from them. Get hospital and medical records,⁵⁵ for example.

In a complex case, consult an expert to understand what happened.⁵⁶ You might have to speak to a doctor or an engineer before filing a complaint.

If time constraints require you to draft a complaint without having all the facts or without having confidence in the facts your client has supplied, draft the complaint cautiously.

Timing is never on your side. But draft a complaint only after you thoroughly understand your client’s situation.⁵⁷

Research the Law

Study the law in your department. New York has four departments; sometimes the law differs from one department to the next. Determine the statutory basis on which your client will bring the action. You must answer a threshold question: Does your client have standing to sue?

Determine what claims are available to your set of facts and what affirmative defenses a defendant might raise. List the element or elements of each cause of action you’re pursuing. Choose the theory or theories under which you’re seeking recovery. As a tactical consideration, ask yourself whom you can sue. You might have to sue, among others, agents, principals, partners, joint venturers, and any “Jane Doe” or “John Doe.”⁵⁸ Then ask yourself what claims you can assert.

Also think about what relief you can seek for each claim.⁵⁹ Are you entitled to attorney fees? What damages are you seeking? Are you entitled to equitable remedies like an injunction or specific performance? Who’ll determine the damages: the court or a jury? Determine whether you’re entitled to a jury trial.

Consider where you may file the case.⁶⁰ Are you bringing the action in federal or state court? Do you have a basis to bring a case in a particular venue? Plaintiffs have the choice of available forums for litigating their claims.⁶¹ The decision you make will depend on the costs involved, the convenience of witnesses, the availability of evidence, the substantive and procedural law in the forum, the judicial attitudes, and the jury verdicts.⁶²

CPLR Article 5 addresses venue. A trial will take place in the county in which one of the parties resided when the lawsuit began. If none of the parties resided in the state, the plaintiff may designate the county. Some statutes require that the case be venued in a specific forum, such as cases against governmental entities and officials and actions disposing of real estate. Contracts between parties will specify the forum and venue selection. Look at the contract to see whether you’ve complied with the terms of that contract.

Ascertain whether you’ve exhausted all the administrative remedies before you start the litigation. Learn whether you’re precluded from bringing the case because you could have brought the case in another court.

Verify whether your county has a Commercial Division before you sue in federal court.⁶³ Litigating commercial cases in a New York court’s Commercial Division is advantageous. It has resources to devote to those cases, and it’s familiar with the laws concerning commercial cases. In New York County, for example, the threshold to bring a commercial case is $150,000.⁶⁴

Establish whether the statute of limitations has expired or will expire soon. The time you have left on the statute of limitations will affect how much time you’ll have to draft a complaint.

Work backwards. Research your client’s cause of action in the New York Pattern Jury Charges. Knowing what the jury, or a judge in a bench trial, must decide once all the evidence is in will help you know what you must plead. It’ll also help you determine what you need to prove at trial and how you can do so.

Consult CPLR 3015 and 3016 to see whether your client’s case is one in which particular allegations must be pleaded. In a libel or slander case, you must plead the particular words in the complaint. In cases involving fraud, mistake, misrepresentation, willful default, breach of trust, or undue influence, each substantive element must be alleged in detail. This applies to defenses as well as to causes of action. Personal-injury cases covering motor-vehicle accidents in New York must state that the no-fault law does not preclude the...