The complaint drafting assignment is our first writing
assignment.
Networking: informal conversations that are goal-oriented.
We need to be familiar with asking questions-- obviously we've
been floundering so far, so we need to learn where to look
and how to come to an answer.
In the assignment, there's a research memo that answers a
lot of our questions.
Questions
Statute of limitations: a litigation clock starts
running the minute someone's rights are violated.
Also, the statute of limitations is waived if
the defendant doesn't raise it. Not clear when
it is waived (i.e., when an answer is filed? can
it be raised at any time?). Not a big deal: this
can always be found.
Whom are we going to sue: injuries have multiple
causes, and anyone who contributed in some
substantial way might be liable. A lot of
the questions depend on substantive law, but
common sense is a good tool also. Also,
review the tape to look for specific allegations
against the individual officers. Who was holding
Raheem, etc. Employer: vicarious liability, as
well as training. Exception: in a civil
rights case, a city is not vicariously liable
for the wrongdoing of its low-level employees.
And another thing: The police department
is not a separate legal entity, so it can't be
sued on its own; it's not a proper defendant.
. So we need to look for something that
the city did wrong, like setting policy and making
training.
How do we estimate damages? We don't have to: it's
going to be a lot. We care, maybe, at the strategic
level, but we don't need to say anything in order
to file a complaint. If someone asks, just don't
use a ludicrous number.
Do the defendants have immunity? We're going to
simplify this a little bit. The short answer is
that their liability is limited. On the other
hand, there's a general law (in WI) that cities
have to pay police officers' damages.
Pleading: To "plead" is to state claims or defenses. Rule 7(a)
defines the documents that perform these functions (i.e.,
the documents that are pleadings).
Why do we need to do this? Notice and Opportunity to be heard.
The fundamental principle of procedure is to provide "due
process of law" (5A and 14A). The defendant has the right
to notice: we are trying to take property from them. Without
notice or the opportunity to be heard, taking property is
either robbery or tyrrany. And we don't want those. So
the complaint is notice (in fact, the rule is called "notice
pleading.").
Rule 3: a suit is commenced by filing a complaint.
Rule 4: service of process (this is explicit notice).
Rule 7: types of pleadings defined
Rule 8: general rules of pleading (what we have to consult
in order to write our complaints)
Rule 9: special rules for certain kinds of cases (not ours)
Rule 10: format rules for pleadings.
Rule 11: research and investigation requirements before filing
suit. We need to make sure it's a reasonable suit before
we put a defendant to the trouble of answering.
Rule 12: grounds for dismissal (rule 56 is the other biggie
of the course). When we write a complaint, read it as
though we were the defendant, and find any grounds for
dismissal under Rule 12.
Back on rule 8: a pleading that states a claim for relief must have:
a short plain statement of jurisdiction.
a short and plain statement of the claim.
a demand for the relief sought
There is no substitute for reading the rules.
Note that a truly minimalist complaint doesn't give the
defendant very much notice. Well, the discovery
process allows them to find out about the case. The
defendant can always find out more, but this at least
alerts them to what is up.
Rule 8(d):
Every allegation must be simple, concise, and direct.
Alternative statements of a claim (e.g., what was in
officer Long's mind at the time of the death?). A
pleading is sufficient if one of the alternatives
is sufficient.
Inconsistant claims or defenses (just like the alternative
claims, this is basically just a more extreme example).
A "count," by the way is a synonym for a claim or a cause
of action. Count = claim = claim for relief = cause of
action. Usually you'll see them labeled in a complaint.
Rule 8(e): pleadings must be construed so as to do justice.
(i.e., we're not going to have hyper-technical failures
result in dismissals; form will be treated liberally, and
we'll generally read complaints in favor of allowing them
to go forward).
A general philosophy of pleading: you can use plain English,
you don't have to include every detail.
So if a minimalist complaint would work, why should we be
more elaborate?
Elements - a component part of a claim, test, or charge.
Elements of negligence: duty, breach, causation, damages. We
will want to allege, in our complaint, that all the elements
are present.
"Cause of action:" there are two types
Same "transaction/occurrence" but different legal
theories.
Different parties (against officer Long, excessive
force; against the city of MKE, failure to
train) mean two different causes of action:
a cause of action is a party a law and a
fact.
Different substantive laws covering the same
injury (against officer long: both 42 USC §
1983, plus also the tort of battery in WI)
Different theory of liability (against officer Long,
for battery and also for negligence). These
are different takes on the same events:
intentional vs unintentional torts. Also,
against MKE: negligent hiring and supervision
of unfit employee, and failure to train.
Different transaction/occurrence. Suppose Raheem was
beaten, but not killed, and then he gets framed based
on false evidence. He could, in a single suit,
seek relief for the battery/excessive force, and
then deprivation of due process (accusation based
on knowingly falsified evidence). This is
hypothetical, anyway.
A city can be liable for failure to train City of Canton
v. Harris
MKE can be liable if we can show that they have a "custom,
policy pattern or practice" giving rise to the injury.
Also Monell v. uh-oh-- the screen went blank. These
cases will be given to us, though.
Command decision: This will be a federal court complaint.
How much certainty about the facts do we have to have at this
stage? We are making allegations, not proofs. Discovery
has not happened yet, so evidence is not essential.
Perhaps, for example, we can allege a pattern of behavior.
17 September
Class canceled; discussion section only.
Going over the re-write of the horrible sentence.
You get fined $50-$100/cite for citing unpublished cases.
WI Ct. App. gets about 3,000 cases/year. Far fewer are published.
Per curiam opinions (written by staff attorneys) are
generally not published. A pubication committee gets
together and decides what cases to publish.
What does a complaint do? It initiates litigation. It
establishes the boundaries of the action.
If you're indigent, you can move for a waiver of the filing
fees. When the case is filed, that's when the clock
starts running: deadlines for answers, and other
subsequent things.
Complaints also set limits on discovery: what is required,
and what can be obtained.
A very good style for composing an answer, based on a
firm in NY:
¶
Complaint
Answer
1
Buster is a resident of Madison
Moses admits the allegation in ¶ 1
2
Blah
Moses denies the allegation in ¶ 2
3
Blah
Moses admits the allegation in ¶ 3, but lacks
information sufficient to form belief
Make the paragraphs match one another (i.e., ¶ 1 in
complaint matches ¶ 1 in answer).
Complaint has to include state bar number.
Complaints are an exercise in precision. You want to "join
the action," and give notice, but not close off any
options. Think about what information you want the
defendant to give you, and how the defendant will answer.
If specific facts alleged turn out to be untrue, that might
close off a whole cause of action.
"Upon information and belief" = we believe this, but we don't
have total proof of this, and we'll be wanting to ascertain
it in discovery.
The purpose of the factual pleading is to establish the
elements of the causes of action. No need to admit
anything extra, or to be overly specific. We're
going to have to prove each of the facts we put in
there (except that defendants might admit it).