Complaint Writing Lab Text
The following text has been extracted from the Complaint Writing Lab.
READ THIS FIRST! This Writing Lab takes you step-by-step through the creation of a Complaint. Following is the suggested order of study when using this Writing Lab:
1. This Complaint is based upon the client you were assigned (or chose) in class. Since you would normally be able to contact your client and ask questions about the case, you may expand or change the facts if it helps. Different attorneys use different methods of writing, but the 3-Step Cause of Action taught here a very useful technique that will provide a basis for any style your attorney may use.
2. Open the TEMPLATE by clicking on the link in the left hand column. It is important that when the Dialogue Box appears, you choose to OPEN the document. (Do not choose to SAVE it!) The Template will now appear in this page, and you will be able to alter the text for to create a draft of your assigned Complaint. (The Template is from a totally different case. You are using it for formatting purposes only.)
3. Click on the elements of the Memorandum under DRAFTING THE COMPLAINT in the left hand column. Instructions will appear in the window at the bottom of the page. Make changes to the Template as instructed. When you have completed all the steps, you should have a virtually completed Interoffice Memorandum!
4. COPY AND PASTE the modified Template to create a new Microsoft Word document.
THE CAPTION
THE CAPTION in your template will contain at least three areas that you will need to modify.
THE COURT TITLE
Change the title of the court to a trial court in your jurisdiction, or if you want, you may leave it in the jurisdiction provided in the Template.
THE PARTIES
You will change the names of the Plaintiff and the Defendant. The names should be in all capital letters. A note about ROES AND DOES: These are fictitious names that attorneys sometimes use to protect their right to sue someone whose identity is not currently known. You are not required to use them, but if you want to try, all you have to do is provide the following for the Defendant:
JOHN SMITH, Defendant,
and
ROE DEFENDANTS 1 - 10 and DOE CORPORATIONS 1 - 10, Defendants.
DESIGNATION OF TITLE
The title of the document can be as simple as COMPLAINT, or you can state the general legal matter, such as COMPLAINT FOR NEGLIGENCE or COMPLAINT FOR
BREACH OF CONTRACT.
This should not be too hard. Go ahead and get started! Modify the caption in the above Template.
COMES NOW PARAGRAPH
Technically, this paragraph is not a required element of a Complaint. However, I have never seen one without it.
The COMES NOW PARAGRAPH just tells the court who is filing what document. You can probably just modify the paragraph in the above Template, or use something like this:
"COMES NOW the Plaintiff, by and through her attorney Phillip Dean, and hereby files her Complaint against Defendants, and alleges and avers the following:"
Not tough at all, is it? Go ahead, make the changes in your Template above.
JURISDICTION
The statement of JURISDICTION is easy, but critical. Establishing jurisdiction is usually accomplished by two or three paragraphs stating the location of the parties or the location of the event that is being litigated. Even though it is only required that one party fall within the jurisdiction of the Court, it is common to provide the locations for all parties.
The above Template provides the wording you will need. Simply alter the names and locations to match your matter.
ROES AND DOES:
If your Template provides a ROE AND DOE paragraph, you can pretty much leave it as is, or if you choose not to use ROES AND DOES, you may simply delete that paragraph. (Don't forget to renumber any subsequent paragraphs!)
OK, you are ready to establish Jurisdiction in your Template. I'll give you five minutes.
I'll just wait here till you're finished!
GENERAL ALLEGATIONS
The GENERAL ALLEGATIONS are where you tell the story of what happened. Break the story into paragraphs, numbering each. A good way to get started is:
"On or about June 3, 2004, the Plaintiff was walking down the street..."
It is your job here to relate the relevant facts that resulted in the damage occurring. Be thorough, but don't feel like you are going to win your case here. Don't argue or try to prove anything. That will come at trial. Just state the facts. Tell your client's story. The last paragraph will probably be something like this:
"As a result of the above acts of the Defendant, Plaintiff has been forced to hire the services of an attorney."
This gives your client the ability to ask for attorney's fees.
By the way, the better job you do in laying out the General Allegations, the easier the Causes of Action are going to be!
All right, tell your client's story in the GENERAL ALLEGATIONS above.
FIRST CAUSE OF ACTION
A CAUSE OF ACTION may also be called a CLAIM FOR RELIEF. It is the reason the Plaintiff is suing. You may have only one CAUSE OF ACTION, or you may have several.
But always start with what you, or your attorney, think the strongest claim is.
First of all, title the claim. It should look something like this:
FIRST CAUSE OF ACTION Negligence
It will be centered on the page.
The THREE STEP CAUSE OF ACTION makes the process very structured. The first step is to INCORPORATE all previous paragraphs in the complaint. For example:
9. Plaintiff hereby incorporates Paragraphs 1 through 8 as though each paragraph was fully set forth at length herein.
Yes, it is legalese, but get used to it.
Second, you want tie-in the CAUSE OF ACTION. For instance:
10. Defendant's conduct in failing to remove snow and ice from his sidewalk constitutes negligence.
Connect the Defendant's act, or failure to act, to the claim being made. Don't explain. Don't argue. Just claim it!
Third, you need to ALLEGE DAMAGES as a result of the Cause of Action being claimed. For example:
11. As a result of the failure of the Defendant to properly maintain his sidewalk, the Plaintiff slipped and fell, suffering damages, including but not limited to suffering a broken hip.
Guess what. That's it! If you have done a thorough job in laying out the General Allegations, this 3-Step Cause of Action becomes a very structured, and powerful, method of laying out the claims in a lawsuit.
Give it a try!
SECOND CAUSE OF ACTION
See FIRST CAUSE OF ACTION!
That's right! The steps for the Second Cause of Action are exactly the same as the First Cause of Action. The only difference is that the title of the Cause is different, and you have to change the paragraph numbers being included in the INCORPORATION PARAGRAPH. For example, the First Cause may have Incorporated paragraphs 1 through 8. The Second Cause will Incorporate ALL the previous paragraphs, including the First Cause. (i.e. "...paragraphs 1 through 11...")
No matter how many Causes (also called Claims) you may have, use the 3-Step Cause of Action for each.
It is a very empowering technique, and will stay with you throughout your career if you work at it now!
Now, finish all of your Causes of Action, then click on WHEREFORE CLAUSE.
(Have I told you lately how well you're doing????)
WHEREFORE CAUSE
The legal jargon used in such legal writing as the WHEREFORE CLAUSE is often called 'Boilerplate." It is basically a format used over and over again by lawyers. Your attorney will have his or her own favorite boilerplate phrases, but a common one for the Wherefore Clause is:
"WHEREFORE, Plaintiff asks for damages in an amount to be determined at trial, but in excess of $10,000, for attorney fees and Court costs, and for such other and further relief as the Court deems just and proper."
You are telling the court what you are asking for. By the way, the reason some Wherefore Clauses do not ask for a specific dollar amount is that some states do not allow it, or the attorney does not want to be limited to that amount.
The WHEREFORE CLAUSE is also called the AD DAMNUM CLAUSE or the PRAYER FOR RELIEF.
Go ahead. Create your Wherefore Clause.
SUBSCRIPTION
The subscription is basically the "SIGNATURE BLOCK" at the end of the document. The signature block usually includes the following:
Following is an example of a subscription:
DOE, STEVENS, AND COMISKI
___________________________
DAVID R. DOE
#94-0397
584 Smith Rd.
Durham, NC 20910
(919)549-2930
PRIMA FACIE CASE
After you have finished drafting the Complaint, read it over. Ask yourself the following question: Are there any gaps? If the attorney proves everything claimed in the document, does the Plaintiff deserve to be awarded damages?
If there are no gaps, if your client would deserve to win based upon the facts and claims made, then you have established a Prima Facie case.
It has been a joy teaching you! We hope this has helped.