In
law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
as practiced in countries that follow the English models, a pleading is a formal written statement of a party's claims or defenses to another party's claims in a
civil action
-
A lawsuit is a proceeding by a party or parties against another in the civil court of law. The archaic term "suit in law" is found in only a small number of laws still in effect today. The term "lawsuit" is used in reference to a civil act ...
. The parties' pleadings in a case define the issues to be adjudicated in the action.
The
Civil Procedure Rules
The Civil Procedure Rules (CPR) were introduced in 1997 as per the Civil Procedure Act 1997 by the Civil Procedure Rule Committee and are the rules of civil procedure used by the Court of Appeal, High Court of Justice, and County Courts in civil ...
(CPR) govern
pleading in England and Wales.
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling ...
govern
pleading in United States federal courts. Each state in the United States has its own statutes and rules that govern pleading in the courts of that state.
Examples
Pleading in early American law was done through common law writs (for example ''
demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word ''demur'' means "to object"; a ''demurrer'' is the document that makes the objection. Lawyers informally define a demurrer as a de ...
''). Under the
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling ...
a ''
complaint
In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...
'' is the first pleading in American law filed by a
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
which initiates a lawsuit. A complaint sets forth the relevant
allegations of fact
In law, an allegation is a claim of an unproven fact by a party in a pleading, charge, or defense. Until they can be proved, allegations remain merely assertions. that give rise to one or more legal
causes of action
A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a p ...
along with a
prayer for relief
A prayer for relief, in the law of civil procedure, is a portion of a complaint in which the plaintiff describes the remedies that the plaintiff seeks from the court. For example, the plaintiff may ask for an award of compensatory damages, punitive ...
and sometimes a statement of damages claimed (an
ad quod damnum
''Ad quod damnum'' or ''ad damnum'' is a Latin phrase meaning "according to the harm" or "appropriate to the harm". It is used in tort law as a measure of damage inflicted, and implying a remedy, if one exists, ought to correspond specifically a ...
clause). In some situations, a complaint is called a ''petition'', in which case the party filing it is called the
petitioner {{Unreferenced, date=December 2009
A petitioner is a person who pleads with governmental institution for a legal remedy or a redress of grievances, through use of a petition.
In the courts
The petitioner may seek a legal remedy if the state or anot ...
and the other party is the
respondent
{{unreferenced, date=February 2012
A respondent is a person who is called upon to issue a response to a communication made by another. The term is used in legal contexts, in survey methodology, and in psychological conditioning.
Legal usage
In ...
. In equity, sometimes called chancery, the initial pleading may be called either a ''petition'' or a ''bill of complaint in chancery''.
In England and Wales, the first pleading is a Claim Form, issued under either Part 7 or Part 8 of the Civil Procedure Rules, which sets out the nature of the action and the relief sought, and may give brief particulars of the claim. The Claimant also has the option, under Practice Direction 7A.61 to serve Particulars of Claim (a document setting out the allegations which found the cause of action) within 14 days of issue of the Claim Form.
When used in civil proceedings in England and Wales, the term "complaint" refers to the mechanism by which civil proceedings are instituted in the magistrates' court and may be either written or oral.
A ''
demurrer
A demurrer is a pleading in a lawsuit that objects to or challenges a pleading filed by an opposing party. The word ''demur'' means "to object"; a ''demurrer'' is the document that makes the objection. Lawyers informally define a demurrer as a de ...
'' is a pleading (usually filed by a
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
) which objects to the legal sufficiency of the opponent's pleading (usually a complaint) and demands that the court rule immediately about whether the pleading is legally adequate before the party must plead on the merits in response. Since demurrer procedure required an immediate ruling like a motion, many common law jurisdictions therefore went to a narrower understanding of pleadings as framing the issues in a case but not being motions in and of themselves, and replaced the demurrer with the motion to dismiss for failure to state a cause of action or the application to strike out particulars of claim.
An ''
answer
Answer commonly refers to response to a question.
Answer may also refer to:
* Answer (law), any reply to a question, counter-statement or defense in a legal procedure
Music
* Answer, an element of a fugue
Albums
* ''Answer'' (Angela Aki alb ...
'' is a pleading filed by a defendant which admits or denies the specific allegations set forth in a complaint and constitutes a
general appearance In law, an appearance (from Latin ''apparere'', to appear) occurs when a party to a lawsuit physically appears in court, or to a formal act through which a defendant submits to the jurisdiction of the court in which the lawsuit is pending.
History ...
by a defendant. In England and Wales, the equivalent pleading is called a Defence.
A
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
may also file a
cross-complaint
In legal terminology, a complaint is any formal legal document that sets out the facts and legal reasons (see: cause of action) that the filing party or parties (the plaintiff(s)) believes are sufficient to support a claim against the party ...
against another defendant named by the plaintiff, and may also file a ''third-party complaint'' bring other parties into a case by the process of
impleader
Impleader is a United States civil court procedural device before trial in which a defendant joins a third party into a lawsuit because that third party is liable to an original defendant. Using the vocabulary of the Federal Rules of Civil Pro ...
.
A
defendant
In court proceedings, a defendant is a person or object who is the party either accused of committing a crime in criminal prosecution or against whom some type of civil relief is being sought in a civil case.
Terminology varies from one jurisdic ...
may file a ''counter-claim'' to raise a cause of action to defend, reduce or set off the claim of the
plaintiff
A plaintiff ( Π in legal shorthand) is the party who initiates a lawsuit (also known as an ''action'') before a court. By doing so, the plaintiff seeks a legal remedy. If this search is successful, the court will issue judgment in favor of the p ...
.
Systems
Common law
Common law pleading was the system of
civil procedure
Civil procedure is the body of law that sets out the rules and standards that courts follow when adjudicating civil lawsuits (as opposed to procedures in criminal law matters). These rules govern how a lawsuit or case may be commenced; what ki ...
used in England, which early on developed a strong emphasis on the
form of action
The forms of action were the different procedures by which a legal claim could be made during much of the history of the English common law. Depending on the court, a plaintiff would purchase a writ in Chancery (or file a bill) which would set in ...
rather than the
cause of action
A cause of action or right of action, in law, is a set of facts sufficient to justify suing to obtain money or property, or to justify the enforcement of a legal right against another party. The term also refers to the legal theory upon which a p ...
(as a result of the
Provisions of Oxford
The Provisions of Oxford were constitutional reforms developed during the Oxford Parliament of 1258 to resolve a dispute between King Henry III of England and his barons. The reforms were designed to ensure the king adhered to the rule of law and ...
, which severely limited the evolution of the common law writ system). The emphasis was on procedure over substance.
Law
Law is a set of rules that are created and are enforceable by social or governmental institutions to regulate behavior,Robertson, ''Crimes against humanity'', 90. with its precise definition a matter of longstanding debate. It has been vario ...
and
equity
Equity may refer to:
Finance, accounting and ownership
* Equity (finance), ownership of assets that have liabilities attached to them
** Stock, equity based on original contributions of cash or other value to a business
** Home equity, the dif ...
evolved as separate judicial systems, each with its own procedures and remedies. Because the types of claims eligible for consideration was capped early during the development of the English legal system, claims that might have been acceptable to the courts' evolving sense of justice often did not match up perfectly with any of the established forms of action. Lawyers had to engage in great ingenuity to shoehorn their clients' claims into existing forms of action. The result was that at common law, pleadings were stuffed full of awkward
legal fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
Deve ...
s that had little to do with the actual "real-world" facts of the case.
The placeholder name
John Doe
John Doe (male) and Jane Doe (female) are multiple-use placeholder names that are used when the true name of a person is unknown or is being intentionally concealed. In the context of law enforcement in the United States, such names are often ...
(still commonly used in American pleading to name unknown parties) is a remnant of this period.
In its final form in the 19th century, common law pleading was terribly complex and slow by modern standards. The parties would normally go through several rounds of pleadings before the parties were deemed to have clearly stated their controversy, so that the case was "at issue" and could proceed to trial. A case would begin with a complaint in which the plaintiff alleged the facts entitling him to relief, then the defendant would file any one of a variety of pleas as an answer, followed by a replication from the plaintiff, a rejoinder from the defendant, a surrejoinder from the plaintiff, a rebutter from the defendant, and a surrebutter from the plaintiff. At each stage, a party could file a demurrer to the other's pleading (essentially a request that the court immediately rule on whether the pleading was legally adequate before they had to file a pleading in response) or simply file another pleading in response.
Generally, a plea could be dilatory or peremptory. There were three kinds of dilatory plea: to the jurisdiction, in suspension, or in abatement. The first challenged the court's jurisdiction, the second asked the court to stay the action, and the third asked the court to dismiss the action without prejudice to the other side's right to bring the claims in another action or another court. A peremptory plea had only one kind: a plea in bar. A party making a plea in bar could either traverse the other side's pleading (i.e., deny all or some of the facts pleaded) or confess and avoid it (i.e., admit the facts pleaded but plead new ones that would dispel their effect). A traverse could be general (deny everything) or specific. Either side could plead imparlance in order to get more time to plead on the merits. Once the case was at issue, the defendant could reopen the pleadings in order to plead a newly discovered defense (and start the whole sequence again) by filing a plea puis darrein.
The result of all this complexity was that to ascertain what was "at issue" in a case, a stranger to the case (i.e., such as a newly appointed judge) would have to sift through a huge pile of pleadings to figure out what had happened to the original averments of the complaint and whether there was anything left to be actually adjudicated by the court.
Code
Code pleading was first introduced in 1850 in
New York and in 1851 in
California
California is a U.S. state, state in the Western United States, located along the West Coast of the United States, Pacific Coast. With nearly 39.2million residents across a total area of approximately , it is the List of states and territori ...
, and eventually spread to 22 other states. Code pleading sought to abolish the distinction between law and equity. It unified civil procedure for all types of actions as much as possible. The focus shifted from pleading the right form of action (that is, the right procedure) to pleading the right cause of action (that is, a substantive right to be enforced by the law).
Code pleading stripped out most of the legal fictions that had encrusted common law pleading by requiring parties to plead "ultimate facts." This means that to plead a cause of action, the pleader has to plead each element and also allege specific facts which, if proven with evidence at trial, would constitute proof of that element. Failure to provide such detail could lead to dismissal of the case if the defendant successfully
demurred to the complaint on the basis that it merely stated "legal conclusions" or "evidentiary facts."
Code pleading also drastically shortened the pleading process. Most of the old common law pleadings were abolished. From now on, a case required only a complaint and an answer, with an optional cross-complaint and cross-answer, and with the demurrer kept as the standard attack on improper pleadings.
Instead of piling layers and layers of pleadings and averments on top of each other, a pleading that was attacked by demurrer would either be completely superseded by an amended pleading or would proceed immediately "at issue" as to the validly pleaded parts.
This meant that to determine what the parties were currently fighting about, a stranger to a case would no longer have to read the entire case file from scratch, but could (in theory) look ''only'' at the most recent version of the complaint filed by the plaintiff, the defendant's most recent answer to that complaint, and any court orders on demurrers to either pleading.
Code pleading was criticized because many lawyers felt that it was too difficult to fully research all the facts needed to bring a complaint ''before'' one had even initiated the action, and thus meritorious plaintiffs could not bring their complaints in time before the
statute of limitations
A statute of limitations, known in civil law systems as a prescriptive period, is a law passed by a legislative body to set the maximum time after an event within which legal proceedings may be initiated. ("Time for commencing proceedings") In m ...
expired. Code pleading has also been criticized as promoting "hypertechnical reading of legal papers".
Notice
Notice pleading is the dominant form of pleading used in the
United States
The United States of America (U.S.A. or USA), commonly known as the United States (U.S. or US) or America, is a country primarily located in North America. It consists of 50 states, a federal district, five major unincorporated territorie ...
today.
In 1938, the
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling ...
were adopted to govern civil procedure in
United States federal courts
The federal judiciary of the United States is one of the three branches of the federal government of the United States organized under the Constitution of the United States, United States Constitution and Law of the United States, laws of the fed ...
.
One goal of the
Federal Rules of Civil Procedure
The Federal Rules of Civil Procedure (officially abbreviated Fed. R. Civ. P.; colloquially FRCP) govern civil procedure in United States district courts. The FRCP are promulgated by the United States Supreme Court pursuant to the Rules Enabling ...
was to relax the strict rules of code pleading.
However, each state also has its own rules of civil procedure, which may require different, looser, or stricter rules in
state court.
Fact
Louisiana
Louisiana , group=pronunciation (French: ''La Louisiane'') is a state in the Deep South and South Central regions of the United States. It is the 20th-smallest by area and the 25th most populous of the 50 U.S. states. Louisiana is borde ...
, a state that derives its legal tradition from the Spanish and French (as opposed to
English
English usually refers to:
* English language
* English people
English may also refer to:
Peoples, culture, and language
* ''English'', an adjective for something of, from, or related to England
** English national ide ...
common law
In law, common law (also known as judicial precedent, judge-made law, or case law) is the body of law created by judges and similar quasi-judicial tribunals by virtue of being stated in written opinions."The common law is not a brooding omnipresen ...
), employs a system of fact pleading wherein it is only necessary to plead the facts that give rise to a cause of action. It is not necessary even for the petitioner to identify the cause of action being pleaded. Mere conclusory allegations such as "the defendant was negligent" are not, by themselves, sufficient to sustain a cause of action.
Other states, including Connecticut and New Jersey, are also fact-pleading jurisdictions.
Illinois
Illinois ( ) is a U.S. state, state in the Midwestern United States, Midwestern United States. Its largest metropolitan areas include the Chicago metropolitan area, and the Metro East section, of Greater St. Louis. Other smaller metropolita ...
, for example, requires that a complaint "must assert a legally recognized cause of action and it must plead facts which bring the particular case within that cause of action."
Alternative
In
alternative pleading
Alternative pleading (or pleading in the alternative) is the legal term in the law of the United States for a form of pleading that permits a party in a court action to argue multiple possibilities that may be mutually exclusive by making use of le ...
,
legal fiction
A legal fiction is a fact assumed or created by courts, which is then used in order to help reach a decision or to apply a legal rule. The concept is used almost exclusively in common law jurisdictions, particularly in England and Wales.
Deve ...
is employed to permit a party to argue two
mutually exclusive
In logic and probability theory, two events (or propositions) are mutually exclusive or disjoint if they cannot both occur at the same time. A clear example is the set of outcomes of a single coin toss, which can result in either heads or tails ...
possibilities, for example, submitting an injury complaint alleging that the harm to the plaintiff caused by the defendant was so outrageous that it must have either been intended as a malicious attack or, if not, must have been due to gross negligence.
Linguistic
"pleaded" vs "pled"
The use of "pleaded" versus "pled" as the past tense version of "pleading" has been a subject of controversy among many of those that practice law. "Pled" is almost never used in Australian publications, while being somewhat common in American, British, and Canadian publications. In a 2010 search of the
Westlaw legal database, "pled" is used in a narrow majority of cases over "pleaded".
The AP stylebook and ''The Chicago Manual of Style'' call for "pleaded", and a Westlaw search shows the US Supreme Court has used pleaded in over 3,000 opinions and pled in only 26.
See also
*
Bill of particulars
*
Further and better particulars
In pleading, further and better particulars refers to additional information required to provide sufficient accuracy with respect to a set of pleaded facts in an earlier document. The party who believes that the facts are insufficiently pleaded wi ...
*
General denial In pleading, a general denial is a denial that relates to all allegations which are not otherwise pleaded to. Many legal systems provide that in a statement of defense, any allegation made by the plaintiff which is not traversed (i.e. specifically ...
*
Legal syllogism Legal syllogism is a legal concept concerning the law and its application, specifically a form of argument based on deductive reasoning and seeking to establish whether a specified act is lawful.
A syllogism is a form of logical reasoning that ...
*
More definite statement
*
Motion (legal)
*
Motion for leave
A motion or application for leave is a motion filed with the court seeking permission to deviate from an established rule or procedure of the court.
The most common use of a motion for leave is to seek an extension to an already-passed time frame ...
*
Negative pregnant
*
Petition
A petition is a request to do something, most commonly addressed to a government official or public entity. Petitions to a deity are a form of prayer called supplication.
In the colloquial sense, a petition is a document addressed to some offici ...
*
Plea
In legal terms, a plea is simply an answer to a claim made by someone in a criminal case under common law using the adversarial system. Colloquially, a plea has come to mean the assertion by a defendant at arraignment, or otherwise in response ...
*
Prima facie
''Prima facie'' (; ) is a Latin expression meaning ''at first sight'' or ''based on first impression''. The literal translation would be 'at first face' or 'at first appearance', from the feminine forms of ''primus'' ('first') and ''facies'' (' ...
References
External links
*{{cite EB1911, ref=none , last=Craies , first=William Feilden , wstitle=Pleading , volume=21 , pages=831–835 , short=x
Federal Rules of Civil Procedure
Civil procedure
Notary
Legal documents
sv:Plädering