Pleading

• Pages: 19-45
• Author: Samuel Issacharoff

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Chapter 2

PLEADING

A society premised on liberty will leave individuals largely to

their own devices, assuming, in classic liberal fashion, that the

unfettered pursuit of individual self-interest will best advance the

collective welfare. Even under this classic liberal model, however,

individuals must inevitably come into conflict w hen contractual

expectations are dashed, or disputes arise over pro perty, or a lack of

due re gard fo r othe rs results in injury. At this point, passions are

likely infla med, civil transac tions disrupted, and the orderly

workings of society threaten to descend into demands for retribution.

As the scale of society expands, as markets grow, and as the mobility

of the population increase s, these disruptions become not only more

common, but must come to be seen as the norm of mass society. What

distinguishes a mature society, then, is not the abs ence of disputes,

but the capacity for a just and efficient resolu tion of these di sputes.

In practical terms, this means our modern society requires a legal

system capable of rendering meanin gful justice through dispute

resolution, and doing so within reasonable constraints of time and

money.

For purposes of bringing all of this to life, let us assume a

hypothetical dispute in which a farmer loses a co w, which has

apparently wandered off his property. Assume the farmer suspects

his neighbor of having either intentionally taken the cow, or else of

having profited from the situation by keeping the cow and, in turn,

either selling it, consuming it, or infiltrating it into his herd. We will

return often in this book to the saga of the wandering co w, for it

epitomizes the s implest o f disputes that any legal system must be

equipped to handle.

From the historic vantage point of Anglo-American law, we may

think of the ensuing legal battle over our stray cow as an example of

a classic common law dispute of the sort that has be en the mainstay

of litigation over many centuries. There are defining features of such

a dispute that bring it squarely within the ambit of what courts are

designed to handle, and indeed what courts are probably best able to

handle. As articulated by Abram Chayes:

(a) The law suit is bipolar—it concerns two separate and

easily identifiable parties;

(b) The lawsuit is retrospective—it add resses completed

events;

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PLEADING

Ch. 2

(c) The right asserted and the remedy sought are

interdependent—the latter flows from the former;

(d) The lawsuit concerns a self-contained episode—the

impact of the judgment is confined to the parties to the

litigation; and

(e) The process is party-initiated and party-controlled—

the issues and facts in the case are developed by the

parties and presented by them or their attorneys to the

final arbiter.

1

In such a world, the role of pro cedure is to encourage the

disputants to turn to a public dispute resolution forum rather than

to resort to self-help. In particular, the object of a civilized legal

system is to offer an alternative to the aggrieved parties taking up

arms and trying to seize control of the disputed cow through

whatever f orce they may bring to bear. The need to provide a safe

alternative to Hobbesi an self-help remedies, in turn , leads to the

creation of courts and a system of administration of justice which

offers a neutral fo rum where, among other essentials, neither party

is at physical risk. The overriding o bjective of such a system is the

dispensation of justice that will be accepted as such by disputing

citizens. Such a system of justice seeks to resolve conflicts based upon

the actual facts underlying the dispute, and on the proper application

of the law to the particular claims and defenses of the parties. Each

disputant must believe that the resolution of the controversy before

the court resulted from a set of established practices and law, and

must accep t that even in defeat, the result was not the product of

fraud or corruption. Most often, the defining feature of what it means

to be fair is the proce ss by which the case was resolved, particularly

since in any claim by two parties to the same good, it is impossible to

satisfy each claimant’s substantive demand. In turn, the goal of

procedure in such a system is to be the efficient medium through

which the law may be applied to an accurate factual assessment of

the case.

I. From Common Law Pleading to the Present

The mode rn system of civil procedure begins with a hi storical

assessment: the common law as practiced in the courts of England of

old was on ly partially s uccessful at imple menting procedu re to

achieve the goals outlined above. While the courts were open and

dispensed justice, proce dure often served as an obstacle to the

determination of the merits of the dispute, rather than as a means to

that end.

1

Abram Chayes, The Role of the Judge in Public Law Litigation, 89 Harv. L.

Rev. 1281, 1282–83 (1976).