Pleadings

• Author: Scott Brister (Ret.)/Dan S. Boyd
• Pages: 577-630

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Chapter 14

PLEADINGS

QUICK VIEW

Definitions: A “pleading” is a court-filed paper in which a party states its claims or defenses. Most pleadings are

the first papers the party has filed in the case. For example, the “petition” is plaintiff’s initial statement of facts

and legal theories supporting its claims against defendant. The “answer” is the paper in which defendant initially

states the facts and theories supporting its defenses to plaintiff’s claims. However, “pleadings” also include sub-

sequently filed papers (e.g., cross-claims, counterclaims, and third-party claims).

Scope: Drafting requirements and techniques. Claims requiring fair notice. Verifications and demands for relief.

Rules and strategies for petitions, answers, motions, counterclaims, cross-claims. Third-party and interpleader

practice. Supplemental and amended pleadings.

Strategies and Tactics:

• All pleadings: Use pleadings to advantageously frame the issues that will be the subject of discovery, dis-

positive motion practice (e.g., summary judgment), and trial.

• Petition: Decide how much plaintiff should reveal in the petition. Draft the petition to withstand all disposi-

tive motions (e.g., for summary judgment). Consider the petition’s effect on settlement and on the judge’s

opinion of the case and counsel.

• Response: Before responding, consider the case’s merit, settlement, and the cost of defending. Consider

pre-answer motions: Is the petition defective and, if so, are the defects curable? When drafting the answer,

remember it can be used as evidence against your client. Also remember that certain defenses are waived if

not asserted in the answer (or prior motion). Consider cross-claims, counterclaims, and third-party claims.

Governing Rules: TRCP 22-24, 45-74; 78-85; 90-98n; CRPC §10.001.

Related Topics: Presuit Activities, Ch 2; Parties, Ch 6; Subject Matter Jurisdiction, Ch 7; Personal

Jurisdiction, Ch 8; Forum Selection: Venue, Forum Non Conveniens, and Removal, Ch 9; Citation and

Service of Process, Ch 10; Statutes of Limitations, Ch 3; Attacking the Pleadings, Ch 15.

TABLE OF CONTENTS

I. All Pleadings

A. Basic Points

§14:01 “Pleading” Defined

§14:02 Pleadings Frame the Case

§14:03 Tolls Statutes of Limitation

§14:04 “Notice” Pleading

§14:05 Permitted Pleadings

(Rev. 10, 4/13)

TEXAS PRETRIAL PRACTICE 14-2

§14:06 What’s Not a Pleading

§14:07 Liberally Construed

§14:08 Fair Notice

§14:09 Missing Element Allegation: Not Fatal

§14:10 Misdesignated or Misnumbered Pleading

§14:11 Alternative Claims & Defenses

§14:12 Pleading Jurisdiction in County Courts at Law

B. Judicial Admissions in Pleading

§14:16 Judicial Admissions

§14:17 Binding Effect

§14:18 Amended Pleadings

§14:19 Simultaneous Bill of Review and Mandamus

C. Format

§14:24 Few TRCP Rules

§14:25 Requirements

§14:26 Copy or Original

§14:27 Numbered Paragraphs

§14:28 Separate Counts and Defenses

§14:29 Caption

§14:30 Endorsement and Salutation

§14:31 Body and Prayer

§14:32 Signature Block

§14:33 Local Rules

D. Statements Adopted by Reference

§14:38 Authority

§14:39 Statements Superseded by Amendment

E. Verification

§14:44 Most Pleadings Not Verified

§14:45 Avoid Verifying

§14:46 Form of Verification

§14:47 Must Be Unequivocal

§14:48 Inconsistent or Alternate Claims

§14:49 Who Should Sign

§14:50 By Agent or Attorney

§14:51 Jurat

F. Exhibits

§14:56 Authority

§14:57 What Can Be an Exhibit

§14:58 Not Required

§14:59 Exhibit Controls Over Text

§14:60 Procedure

G. Sanctions for Frivolous Pleading

1. BASIC POINTS

§14:66 Potential for Sanctions

§14:67 How to Avoid

2. UNDER TRCP 13

§14:72 Authority and Sanctions Available

(Rev. 1, 12/00)

14-3 PLEADINGS

§14:73 Must Be Just

§14:74 Grounds and Burden of Proof

3. UNDER CPRC CHAPTER 9

§14:80 Authority and Sanctions Available

§14:81 Grounds

4. UNDER CPRC CHAPTER 10

§14:88 Authority and Sanctions Available

§14:89 “Certification by Signing”

§14:90 Broad Potential for Sanctions

II. The Petition

A. Filing to Commence Suit

§14:96 Authority

§14:97 Mechanics of Filing

§14:98 Date and Time of Filing

§14:99 Commencement on Sunday

§14:100 Statute of Limitations Tolled

§14:101 “Race to the Courthouse”

§14:102 Provide Plaintiff’s Name and Address

B. Drafting Steps and Strategies

1. INITIAL STEPS

§14:108 Review File

§14:109 Legal Research and Analysis

§14:110 Review Model Jury Charges

§14:111 Recheck Facts With Client

2. STYLES AND GOALS OF PETITION

§14:116 Goals

§14:117 Inducing Settlement

§14:118 Petitions Don’t Win Cases

§14:119 CAUTION: Petitions Can Lose Cases

C. “Building Blocks” of Petition

1. BASIC POINTS

§14:124 Caption, Indorsement, Signature

§14:125 Paragraphs and Divisions

§14:126 “Background-Facts” Division

§14:127 “Causes of Action” Paragraphs

§14:128 “Remedies” Division

§14:129 Body Can Simplify the Prayer

2. THE PRAYER

§14:134 Statement of Relief Required

§14:135 General and Specific Types

§14:136 General Prayer

§14:137 Special Prayer

§14:138 Attorney Fees and Interest

§14:139 Inconsistent Relief

(Rev. 10, 4/13)

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