Pleadings

• Author: Jennifer Duncan-Brice
• Pages: 407-486

13-407

Chapter 13

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 complaint 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. The answer may also include counter-

claims, although these may also be filed separately. The plaintiff must file a reply to any new matter raised by

way of affirmative defense in the answer as well as an answer to any counterclaims filed by defendant.

Scope: Drafting requirements and techniques. Verifications and prayers for relief. Rules and strategies for com-

plaints, answers, counterclaims, and replies. 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.

• Complaint: Decide how much plaintiff should reveal in the complaint. Draft the complaint to withstand all

dispositive motions (e.g., for summary judgment). Consider the complaint’s effect on settlement and on

the judge’s opinion of the case and counsel.

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

answer motions: Is the complaint 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 3rd-party claims.

Governing Statutes and Rules: 735 ILCS 5/2-601—619, 622 (a)(1); SCR 131-182.

Related Topics: Presuit Activities, Ch 2; Parties, Ch 12; Subject Matter Jurisdiction, Ch 6; Personal Jurisdiction,

Ch 7; Forum Selection: Venue, Forum Non Conveniens, and Removal, Ch 8; Summons, Service of Process, and

Appearance, Ch 9; Statute of Limitations, Ch 3; Attacking the Pleadings, Ch 15.

Forms: See digital access for the following forms:

• Form 13:10, Caption.

• Form 13:20, Complaint (Personal Injury).

• Form 13:30, Complaint (Subrogation).

• Form 13:40, Complaint (Breach of Contract).

• Form 13:50, Complaint (Breach of Retail Installment Contract).

• Form 13:60, Answer With Separate Defenses.

• Form 13:70, Caption (Counterclaim).

• Form 13:80, Counterclaim.

IllInoIs PretrIal PractIce 13-408

TABLE OF CONTENTS

I. Requirements for All Pleadings

A. Purpose and Function

§13:01 Pleading Defined

§13:02 Pleading vs. Motion

§13:03 Frames the Litigation

§13:04 Types of Pleadings Permitted

§13:05 Facts Must Be Pleaded

§13:06 Complaints Are Liberally Construed

B. Format

§13:20 Paper Size and Type

§13:21 Must Be Legible

§13:22 Caption

§13:23 Filing

§13:24 Pleadings Must Be Signed

C. Drafting Rules and Techniques

§13:30 Plain, Concise Statement Required

§13:31 Ultimate Facts vs. Conclusions

§13:32 New Paragraph for Each Allegation

§13:33 Multiple Claims or Defenses

§13:34 Joinder of Legal and Equitable Matters

§13:35 Misnamed Theories

§13:36 Incorporating by Reference

§13:37 Exhibits

D. Alternative Pleadings

§13:50 Alternative Claims Permitted

§13:51 Tactical Considerations

§13:52 Alternative Pleading Not Limited to Complaints

§13:53 Not Available When Pleader Must Know Fact

E. Information and Belief Allegations

§13:60 Pleading on Information and Belief Permitted

§13:61 You Must Plead Facts

§13:62 Fraud Claims

§13:63 Verification Requirements in Assignments or Executions

F. Verification

1. GENERAL POINTS

§13:70 Form of Verification

§13:71 Verification of Initial Pleading Is Generally Optional

§13:72 Subsequent Pleadings Must Be Verified

§13:73 Who Can Verify?

§13:74 Corporate Verification

§13:75 Verified Pleading Is Not Evidence, But Is Judicial Admission

13-409 PleadIngs

§13:76 Missing Verification

§13:77 Motion to Strike Unverified Pleading

§13:78 False Verification

§13:79 Unverified Pleading

2. VERIFIED COMPLAINTS

§13:90 Use for Summary Judgment Motion

§13:91 Use on Default

§13:92 Use to Flush Out Admissions

§13:93 Verification Required for Specified Complaints

3. VERIFIED ANSWERS

§13:100 When Required

§13:101 Avoiding Self-Incrimination

§13:102 Effect of Failing to File Verified Answer

§13:103 Defendant May Still Use Affidavits for Summary Judgment Motion

II. Preparing and Filing the Complaint

A. In General

§13:110 Fact Pleading Required

§13:111 Examples of Inadequate Fact Pleading

§13:112 Complaint Must Plead “Ultimate Facts”

§13:113 Pre-Complaint Tools

§13:114 Separate Count for Each Claim

§13:115 Caption

§13:116 Affidavit of Damages

B. Purposes

§13:130 Defines Parameters of Discovery

§13:131 Encourages Settlement

§13:132 Delineates the Issues

§13:133 Avoids 2-615 Motion Practice

C. Pitfalls

§13:140 May Create Poor First Impression

§13:141 Failure to Name Appropriate Defendants

§13:142 May Encourage Motions

D. Contents

§13:150 Plain and Concise Statement of Facts

§13:151 Designate the Parties

§13:152 Notice of Facts and Events

§13:153 Designate Parties Properly

§13:154 Entity That Can Be Sued

§13:155 Use of Fictitious Name Generally Prohibited

§13:156 When Fictitious Name May Be Used

§13:157 Breach of Statutory Duty

§13:158 Facts Must Be Applied to Claim

§13:159 Identify the Claim

§13:160 Prayer for Relief