Rational pleading in the modern world of civil litigation: the lessons and public policy benefits of Twombly and Iqbal.

AuthorSchwartz, Victor E.

INTRODUCTION I. THE RISE AND FALL OF NOTICE PLEADING A. The Development of Basic Pleading Standards 1. Common Law Pleading 2. Code Pleading 3. Notice Pleading B. The Twombly and Iqbal Decisions II. PLAUSIBLE PLEADINGS LINE DRAWING A. Complex Cases Should Require More Refined Pleadings 1. Specific Pleadings Are Appropriate When More Than Just Facts Are at Issue 2. Anticipated Discovery Burdens Should Factor Into the Required Sufficiency of a Pleading B. Certain Types of Claims Should Require More Exacting Pleadings 1. Novel or Untested Claims Should Require More Specific Pleadings 2. Allegations of Intentional Conduct Should Be Supported By Specific Facts III. PUBLIC POLICY FAVORS GREATER JUDICIAL REVIEW OF PLEADINGS A. Judges' Gatekeeping Role B. A Response to Critics C. Lessons for State Courts CONCLUSION INTRODUCTION

The past few years have introduced some exciting, indeed revolutionary, changes to the world of pleading. (1) In what is traditionally a static topic of civil procedure, often viewed as an afterthought by all but first year law students, federal pleading requirements have received a modern-day makeover by the United States Supreme Court in two key decisions, Bell Atlantic Corp. v. Twombly (2) and Ashcroft v. Iqbal. (3) With these rulings, the Court signaled a decisive break from the broad "notice pleading" standard (4) that evolved out of the Federal Rules of Civil Procedure and became absorbed into many states' analogous pleading rules. (5) In its place, the Court has ushered in the era of so-called "plausibility pleading," (6) which represents a more exacting standard, yet one that has resulted in significant confusion as lower courts attempt to decipher its meaning and impact. (7)

Although the contours of Twombly and Iqbal may not yet be fully understood, the Supreme Court's purpose in developing a more careful judicial review of pleadings was clear: More thorough review is necessary to protect against frivolous and purely speculative lawsuits. (8) Such cases take a considerable toll on the judicial system, wasting scarce judicial resources, delaying justice for meritorious cases, and burdening defendants with "sprawling, costly, and hugely time-consuming" discovery. (9) As the Court stated in Twombly, this mere "threat of discovery expense will push cost-conscious defendants to settle even anemic cases" during the pretrial stage. (10) Of equal importance to the Court's reasoning is that the lack of sufficient pleadings review has created an incentive for discovery "fishing expeditions," (11) whereby claims are initiated with the primary objective of obtaining discovery to find support to file other lawsuits. The purpose of these lawsuits is not to win and secure a client recovery, but rather to provide information to spawn other lawsuits, which can similarly be used to leverage settlement.

As the Supreme Court further appreciated in recalibrating federal pleading requirements, the harmful effects of marginal litigation are often compounded in the modern world of civil litigation. The concept of notice pleading developed in the 1930s as a reaction to arcane common law pleading rules and rigid code pleading. (12) Civil litigation at the time involved relatively simple and straightforward matters, (13) and most modern forms of complex litigation, such as regulatory actions or products liability suits regarding warnings and design, either were substantially limited in scope and sophistication or did not yet exist. (14) Concepts such as e-discovery, which alone can cost litigants millions of dollars, were not yet even in the realm of science fiction.

It is in this context that this Article analyzes the public policy of Twombly and Iqbal, and offers neutral principles for how both federal and state courts might interpret the Supreme Court's new, and admittedly vague, standard. Part I begins by explaining the historical justifications and development of notice pleading. It goes on to discuss the Supreme Court's interpretation of federal pleading requirements in Twombly and Iqbal and the Court's retreat from notice pleading. Part II examines how these rulings reflect a set of changed circumstances as to the propriety of traditional notice pleading in modern civil litigation. It then offers rational principles for courts to apply in meeting the Supreme Court's new mandate and determining the sufficiency of a pleading. These principles are rooted in the notion that the complexity of a case should bear directly on the degree of pleading specificity needed to establish plausibility. Finally, Part III analyzes the public policy implications of these principles and of greater judicial review of pleadings in general, and responds to arguments of proponents of broad notice pleading.

The Article concludes that broad, bare-bones notice pleading has rightfully "earned its retirement," (16) and that lower courts could benefit from a framework for determining the plausibility of a complaint. The Article further concludes that although only federal courts are obligated to interpret pleadings in light of Twombly and Iqbal, there are convincing policy reasons for state courts to do the same.

  1. THE RISE AND FALL OF NOTICE PLEADING

    1. The Development of Basic Pleading Standards

      From the earliest formulations of pleading requirements in England during the Middle Ages until the establishment of the Federal Rules of Civil Procedure in the first half of the twentieth century, the focus in pleading was on formality. Generally speaking, courts during this period applied a rigid, highly technical review of pleadings for compliance with common law rules and, where established, civil codes. (16) In many instances, these procedural systems were designed not simply to control the level and types of cases heard, but as a mechanism to keep litigants out of the courtroom. (17) Legal history is stained with examples of such allegiance to formalism effectively providing a trap for the unwary and disenfranchised. (18) Over time, these legal hurdles stood increasingly at odds with Americans' expanding personal liberties and notions of equal justice, thereby fermenting an environment conducive to a fundamental overhaul of the existing pleading system.

      1. Common Law Pleading

        In Medieval England, courts generally presented those seeking legal recourse with two options: "the burdensomely technical route through the courts of law or the burdensomely factual route through the courts of equity." (19) Before this arduous process could even begin, however, plaintiffs had to overcome significant hardships in getting before the correct court and securing a defendant's appearance. For example, in the Court of the Common Bench, the precursor to the Court of Common Pleas, a case could not proceed, regardless of the merits, without all parties properly before the court. (20) To compel a defendant's appearance, plaintiffs would typically have to persuade the court to engage in the "laborious and costly" process of "outlawing" the defendant. (21) By comparison, the "rival" Courts of the Exchequer and King's Bench, which were empowered to issue writs of arrest to facilitate appearances, only marginally improved upon this process. (22) In these courts, plaintiffs would often have to allege fictitious claims that were offenses to the king, such as a complaint of trespass, to secure a pretrial arrest writ. (23) After the courts obtained jurisdiction, these empty claims would be dropped and the real civil claims added so the matter could be adjudicated. (24)

        When they arrived at the starting line, plaintiffs encountered a confining labyrinth of formality. Courts of law functioned according to a strict writ system. Here, a plaintiff needed to obtain a writ from the court before filing a claim, and, for the court to have jurisdiction, that claim had to fit within a specific form of action. (25) Writs were also "strictly limited to cases where precedents existed." (26) After obtaining a writ for a specific form of action, a plaintiff could expect to encounter very different procedures, depending on the form of action selected. (27) A "science of special pleading" (28) thus developed, with the entire process "resembl[ing] an obscure game of chance," (29) pitting claimants against the system as much as against each other.

        Courts of equity were only marginally easier to navigate. They did not have forms of action; however, equitable pleadings required very detailed and lengthy explanations of both law and fact. (30) The original pleading, in effect, provided the entire basis on which to determine a case. Facts were sworn to and generally could not be amended, and "rules of law were proposed, discussed, and approved or disapproved at the level of pleading." (31) A formal civil trial with witnesses did not become commonplace until relatively modern times. (32) Thus, this one-shot deal represented a considerable risk for plaintiffs, and placed tremendous pressure on the litigants to construct comprehensive, artful pleadings. (33)

        By the end of the fourteenth century, these rigid common law pleading requirements had become fixed and would largely stay that way until the nineteenth century. (34) Some efforts were made to lend greater flexibility to the law, but oftentimes they did not function to aid those burdened in bringing an action. For example, during the eighteenth century more courts began to allow defendants to plead the "general issue," meaning that a defendant could respond with a general denial of the plaintiff's allegations and defend specific allegations at trial, rather than separately addressing each statement in the complaint. (35) Common law courts still insisted, however, that each of the plaintiff's allegations be whittled down to a single issue, divided into questions of law for the judge and questions of fact for the jury, and ruled on at the pleading stage. (36) Not until the wide adoption of code pleading would the common law...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT