IKTYBYUWYTISBIANSTYRTWYHINWIM
Or, as stated differently by Alan Greenspan:
“ I know you think you understand what you thought I said but I’m not sure you realize that what you heard is not what I meant”
A quote that conveys perfectly the issues with setting forth facts in a complaint.
To understand what all this means, you have to plod through a little history.
As recently as twenty years ago, jurisdictions were divided into two broad categories in terms of how complaints were to be written….fact pleading and notice pleading.
OK – stay with me here … I know this stuff gets dry, but it matters. And anyway, with a little imagination it can be a great conversation opener….
“Hi, I’m Bob. Did you know that Iowa used to be a notice pleading state but is now a fact pleading state?? Guaranteed to make you the life of the party!
Kidding aside, the difference in the two systems governed the way you would have to draft your complaint.
Examples are always helpful, so let’s say you’re suing Joe Blow for breaching a contract.
In a notice pleading state all you would have had to say was; “I had a contract with Joe Blow and he breached it”
In those jurisdictions the complaint, in terms of a document was short. Typically you could say everything you need in one or two pages.
Now comes fact pleading.
That’s different.
Now you have to state the facts behind the breach… such as:
A. Joe Blow and I entered into a contract.
B. There was adequate consideration.
C. The contract provided….(fill in the details of the deal)
D. I performed all of my obligations under the contract.
E. Joe Blow did a,b, or c., or… failed to do a, b, or c
F. What Joe did constituted a breach of the contract….
Getting the picture here? One or two pages certainly won’t do it.
And now, as if things weren’t confusing enough, with two U.S. Supreme Court cases back in 2007, things just got worse.
Rule 8 of the federal rules of civil procedure is the rule that dictates what must be in a complaint. And this is where the Greenspan quote comes in. All it says is:
(2) a short and plain statement of the claim showing that the pleader is entitled to relief;
Sounds pretty easy and straightforward, but, as you should have figured out by now, NOTHING is simple and straightforward in legal stuff. This is no different.
In Twombly, the Supreme Court (here’s the link for those nights that you can’t sleep: (500 U.S. 544) spent 44 pages explaining why that rule really did not mean what you might think it did. The court basically said that you have to recite facts that support your claim. What does that mean? What facts do you need?
It means that instead of just rambling about what took place, you first research your cause of action- what does it consist of, what are the elements, then set forth facts that establish those elements.
Back to examples:
Joe Blow – breach of contract
Instead of just blathering about what a terrible person Joe Blow is, you go do your research. You search on “elements cause of action breach of contract”
And this is what you might see:
Valid contract
Performance
Breach of contract
Damages
Your statement of facts need to include facts that establish each of those elements. Miss one and your complaint gets dismissed.
And no, you can’t just say “Joe Blow and I had a valid contract”. That’s really just a legal conclusion… you look at a contract and try to determine if it is valid or not.
You need to recite the facts such as was the contract written or oral? What were the terms? What was I required to do versus what was Joe Blow required to do? What did Joe Blow do that you believe violated the terms of the contract?
Getting the picture yet?
Clearly paragraph 2 of Rule 8 is to put it tactfully, deceptive!
But wait!!!
It gets better!
Twombly was a federal case. It had or should have had no effect on state court cases. But it did. And not in an orderly way.
You have some states clinging to the pure notice kind of pleading.
You have some states that have adopted Twombly completely.
You have some states that have adopted a kind of hybrid.
The way to resolve that is to do a search with search terms “[your state name] notice or fact pleading jurisdiction”. Going through the results you get will let you know how you need to set forth your facts.
Have fun!
Remember: IKTYBYUWYTISBIANSTYRTWYHINWIM