Week 2 Meeting Notes-4/11/12
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Complaint-drafted by plaintiff and/or his/her attorney. It is filed with the court.
Two different types of complaints:
1) Attorney drafted complaint
2) Judicial Form complaint
Caption page-first page of complaint
Attorney name and contact information on the upper left hand side
Name of Court in the middle of caption page
One must follow court rules for formatting when drafting a complaint
Statute of Limitations- sets the maximum time after an event that legal proceedings based on
that event may be initiated. If the statute of limitations runs out, a client can sue you for
malpractice.
Does-fictitious name/placeholder. When you don’t know all identities of opposing side, it is best
to list DOES on complaint. That way when you learn who they are later on in the lawsuit, you
can then add them to the litigation. If there are no DOES, you can dismiss all DOES before trial
(simple procedural change).
Limited Jurisdiction-amount demanded for damages is under $25,000
Unlimited Jurisdiction-amount demanded for damages is over $25,000
You can state if you are seeking a jury trial on the caption page of complaint. Although
everyone has a right to jury, not everyone must exercise this right.
Complaints tend to be more formal.
“General Allegations” of complaint list the background information to the case. You do not have
to put ALL the facts of the case here. You would identify the parties and give their places of
residence in this section. This establishes personal jurisdiction over the parties in the case.
It is important to put “complaint” in footer of complaint, near the page #.
“Background facts” of complaint is more specific than the “General Allegations” section. You
state everything that has happened here. Sentences should be short and concise.
All complaints are made up of causes of action. A cause of action is a theory under which you
are suing (e.g. negligence). Elements make up causes of action. In fact, each element has to be
proved in order to win your lawsuit otherwise you will get a demurrer. Facts of the case will
establish whether or not an element has been satisfied.
Negligence:
1) Duty of care-Jennifer had a duty not to injure those around her in class.
2) Breach of Duty- based on actions of an average reasonable person. Thus, Jennifer
throwing the tennis ball was a breach of duty of her care to those around her. You must
explain the “how” and weave facts of case into element.
3) Causation-show breach caused damages.
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4) Damages-must have occurred.
Rutter Guide-standard California treatise (very practical).
Conversion-legal term for stealing
“Prayer for Relief” must be included at the end of your complaint. Different types of prayer.
1) Monetary Damages-compensatory relief ($). The goal is to put the plaintiff in the same
position as if event had not occurred. The objective is to make the plaintiff whole again.
Pain and suffering would be included in these types of damages.
2) Punitive Damages-damages intended to deter defendant from committing tort (civil
wrong) if defendants actions were reckless and intentional. It sends deterrent to society.
3) Injunctive Relief-plaintiff asks court to order something to happen or to forbid
something from happening. An affirmative injunction requires a party to do something.
4) Declaratory Relief-when a plaintiff asks court to declare a right of the parties with
respect to a written instrument (e.g. insurance law). It asks the court to decide what the
rights of the parties involved are.
5) Attorney fees/costs-must be provided for in a statute or contract.
When drafting a complaint, look at the local court rules (county specific). You can find these
online at occourts.org. You must also consider “local local rules” which are judge specific rules.
If you don’t follow these rules your lawsuit could be rejected.
Use pleading paper, # each paragraph in complaint consecutively, have footer, two-hole punch
top of each page of complaint, 28.25 spacing. Font should be Courier, Arial or Times New
Roman and should be a size 12 font for state court or 14 font for federal court. You do not need
to attach exhibits unless lawsuit is regarding a contract.
After complaint is filed, court will issue you a case # and summons. A summons is an order to
appear before a judge and lets defendant know they are being sued. The summons and a copy
of the complaint must be served on the defendant 60 days after the filing of the complaint in
California. This is usually done by a process server, although, any person 18 years or older and
not a party to the lawsuit may serve. Personal service is the best way to serve.
Summons is another Judicial Council form. Judicial Council is made up of retired judges. The
form is free and can be found on the internet (fillable form).
Pro per party-person representing himself
Summons says you have 30 calendar days to respond, otherwise plaintiff can file a “default
judgment” with the court. A default judgment closes out a case.
Demurrer-motion with the court that objects to or challenges a pleading filed by an opposing
party. Even if everything an opposing party says is true, a demurrer challenges their right to any
relief (e.g. statute of limitations passed).
General denials are allowed in California. It is a denial that relates to all allegations which are
not otherwise pleaded to.
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All affirmative defenses have to be in the defendant’s answer, otherwise they are waived. You
can amend an answer but must usually receive permission from the court.
Doctrine of waiver/estoppel-is a legal principle by which a claimant may be prevented from
asserting a legal right or depending on a set of facts to support a claim if that claimant has said
or done something that contradicts his current claim.
Doctrine of laches-when a party has waited too long.
One must not include frivolous defenses. If so they face the threat of sanctions. Also, you
cannot ask for compensatory damages in answer. You must file a counter claim. You can ask for
attorney fees/costs in answer.
After answer is filed with court, pleadings are completed. The case is “at issue” and a trial date
is ready to be set. The time between this and trial is known as “discovery”. This is the fact
finding portion of the case and is done by both sides of a lawsuit. After discovery is completed,
a trial is set. At trial, witnesses are brought forth and evidence is presented. After a trial is
completed, appeal process begins.
HW Assignment: Jake v. Tom Complaint
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Be selective of facts. Use only those facts that you truly need.
Use short paragraphs (1-2 sentences).
One cause of action: slander. Slander is oral defamation.
Slander per se:
1) Falsity-statement made must be false. Use facts of case.
2) Unprivileged-There are many statutes that afford a "privilege" to someone to speak, and
in those cases the person is shielded from defamation.
3) Publication-statement must have been made to a third party who cannot also be the
person who is being defamed.
4) Orally uttered-something spoken-as opposed to written.
5) Choose only one of the 5 subcategories listed on HW assignment A-E.
Facts must establish each element fully.
No page limit.
Prayer for Relief must be included.
You must sign complaint.
You can add to the facts already given but cannot contradict facts in any way.
Word usage will be looked at –no typos.
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