ESTABLISHING CAUSES OF ACTION
Causes of Action comprise the body of the complaint. Be aware that there are many methods of drafting complaints and establishing valid causes, each as valid as the other.
It is important to realize that while a paralegal can certainly lose a case in the complaint, she or he will never win a case in the complaint. If the complaint does not contain at least one valid cause of action, the court can dismiss the case. No matter how well crafted the complaint, no matter how beautifully written and convincingly presented, you will never win the matter in the complaint. It will still have to go to trial, most likely. So while you want to draft a strong set of allegations, don’t try to prove anything at this stage. Just allege the facts and damages. The proving will come at trial.
One of the most effective forms of establishing valid claims for relief is called the 3-step Cause of Action. That is what is presented here. Your instructor may have his or her own method of drafting a complaint. If so, follow your instructor’s method. As a paralegal, part of your job is to be flexible. Every attorney believes that his or her way is the most appropriate. When the author of this manual was working for seven litigation attorneys, there were seven “most appropriate ways” to draft a complaint. Get used to it. Don’t fight it. Prepare documents in the manner the attorney instructs.
General Allegations
The 3-Step Cause of Action relies on the author first drafting a thorough set of General Allegations, sometimes referred to as Common Allegations or other terms. The first couple of paragraphs within the General Allegations will be the jurisdictional statements, followed by a setting forth of the facts that are being alleged. Be aware that the facts that are alleged must include some sort of damage. Without damages, there is no case! For instance, if a manhole cover is left off the manhole, that would certainly be negligent. Unless someone falls in and is injured, or damaged, by the negligent act, there is no actionable case. Following is an example of General Allegations.
GENERAL ALLEGATIONS
(Against All Defendants)
I.
Plaintiffs are now and at all times relevant have been residents of Clark County, State of Confusion.
II.
Defendants are now and at all times relevant have been residents of Clark County, State of Confusion.
III.
On or about October 23, 2004, Defendant was driving a taxi, in which Plaintiff(s) were passengers.
Defendant, traveling north on Sahara Blvd., was traveling 60 m.p.h. in a 30 m.p.h. zone.
IV.
At the intersection of Sahara and Paradise Road, Defendant failed to stop for a red light.
V.
Defendant’s taxi subsequently struck a vehicle traveling south bound on Paradise Road. The vehicle which was struck possessed the right of way.
VI.
Both Plaintiffs suffered severe damages as a result of the accident requiring lengthy hospitalization.
VII.
Both Plaintiffs have been forced to miss work and employment opportunities due to the accident.
VIII.
As a result of this litigation, Plaintiffs have secured the services of an attorney.
Once the General Allegations have been established, the 3-Step Cause of Action is used for each Claim being made. For instance, if negligence and negligence per se are the two claims, the writer would go through the 3-Step Cause of Action twice, once for each claim.
THE CLAIMS
Begin by captioning the claim, such as:
FIRST CLAIM FOR RELIEF
Negligence
Keeping in mind the facts that were established, or at least alleged, in the General Allegations, follow these three steps:
1. Incorporation Paragraph
2. Allege the Cause of Action
3. Allege Damages as a Result of the Cause of Action
1. Provide Incorporation Paragraph.
This paragraph incorporates by reference all the facts and allegations contained in the previous paragraphs. For example, “Plaintiff hereby incorporates and realleges Paragraphs 1 through 7, as though fully set forth at length herein.” Yes, it’s legal jargon. The advantage is that it cuts down on space, not requiring the restatement of facts alleged in previous causes of action.
2. Allege the Cause of Action.
Whatever the cause of action being claimed is, allege that the defendant’s conduct amounted to that claim. For example, “Defendant had a duty to properly obey the traffic laws of the state and county where the accident occurred, and by failing to do so acted in a negligent manner.” If the matter had been a breach of contract case, the paragraph might read, “Defendant, by her failure to provide the items ordered and paid for is currently in breach of that contract.” The writer is simply establishing the claim as a result of the defendant’s stated conduct.
3. Allege Damages as a Result of the Cause of Action.
To be actionable, the plaintiff generally must claim that he or she suffered damages (although there are exceptions). For example, “As a result of Defendant’s negligent conduct stated above, Plaintiff has suffered specific damages, including but not limited to medical expenses and lost wages.” Or, in the breach of contract matter, “Plaintiff, as a result of Defendant’s breach of contract, has suffered loss of potential earnings and lost contracts with retailers who were promised the contracted items.”
Thus we have created a valid cause of action. Example:
FIRST CAUSE OF ACTION
Negligence
VIII.
Plaintiff hereby incorporates and realleges Paragraphs 1 through 7, as though fully set forth at length herein.
IX.
Defendant had a duty to properly obey the traffic laws of the state and county where the accident occurred,
and by failing to do so acted in a negligent manner.
X.
As a result of Defendant’s negligent conduct stated above, Plaintiff has suffered specific damages, including
but not limited to medical expenses and lost wages.
Again, it is important to accept that your attorney or instructor may prefer a different approach. There is no single correct way to draft a complaint. If necessary, modify your document to the style that the attorney or instructor prefers.
Note about open line indicators
If there are lines with no print at the bottom of a page, indicate that the line has been left blank intentionally by placing “// // //” on each open line. This prevents others from adding text to the line, which, believe it or not, has happened.
Pleading Paper
Pleading paper is numbered on the left hand column. The standard is 28 lines. Not all jurisdictions require pleading paper. If a jurisdiction requires pleading paper for pleadings, it will also be used for other documents filed with the court, and for discovery documents. Pleading paper is commonly used for deposition transcripts, even in jurisdictions not requiring it for pleadings.
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