Pre-Trial Advocacy

3 February

• Pleadings: Rule 7. Not motions, briefs, affidavits. Pleadings are complaints, answers, counterclaims, etc.
• Rule 9 (particularity): who, when, and what.
• We're not doing answers in this class, but Rule 12 is a big deal.
• Rules to consider when drafting (because they all go back to your pleadings):
  • 8: rules of pleading
  • 26(a): initial disclosures
  • 26(b): scope of discovery
  • 33, 34, 36: interrogatories, requests for production, etc.
  • 56: summary judgment
  • 15(c): amended pleadings
  It is not enough just to make a pleading sufficient; the pleadings govern a great deal of what you can do pre-trial.
• Good practice: for every paragraph in the complaint, if you had to try the case tomorrow, what would be your support? Likewise with the answer: you have to have a good-faith basis for a denial. These tips will help you stay out of Rule 11 problems.
• Wis Stat § 802.02 is the WI equivalent of FRCP Rule 8.
• WI, MN, ND: notice pleading states
• IL, FL, PN: fact pleading states
• Ashcroft v. Iqbal, 129 S.Ct. 1937 (2009): this case makes it clear that Twombley applies to everybody, not just antitrust. Motions to dismiss have exploded in popularity since this. A strategy: look up rulings by your judge that cite Twombley and Ashcroft v. Iqbal to see how receptive he/she would be to issues with the plausibility of a complaint.
• Every time you allege something in a complaint, it's an admission: it can be used against you, it forms the basis for discovery, etc. Every document you attach is available for summary judgment and motions to dismiss.
• If you're admitting something in a paragraph, be sure to deny everything else in that paragraph, or else it's admitted. Be extra careful of attachments: you can admit that they're attached, but you want to deny the contents.
• See Rule 13 for the difference between compulsory and permissive counterclaims: you want to be sure not to miss one that has to be stated with the answer.
• Pleading an affirmative defense opens you up for discovery on the basis of that defense.
• For the complaint:
  We're filing in Western District of WI. The only defendant is Barr Enterprises, Inc. Paginate. Date and sign your pleading.
• 3247; Mike Crooks
• felix@wisc.edu (Audra)
• I am defense