Columbia Law School

From the SelectedWorks of Hon. Gerald Lebovits

September, 2010

Drafting NY Civil-Litigation Documents: Part 1—Overview Gerald Lebovits

Available at: https://works.bepress.com/gerald_lebovits/185/ SEPTEMBER 2010 VOL. 82 | NO. 7 JournalNEW YORK STATE BAR ASSOCIATION

Back to Business as Usual . . . Or Not?

by Gary A. Munneke A special issue on law practice management

Training Marketing Law Firms Managing Law Firms Managing Your Brain THE LEGAL WRITER BY GERALD LEBOVITS

Drafting Civil- Litigation Documents: Part I — An Overview

ood litigation drafting is a hall- In this multi-part series on writ- action.5 A is a claim the mark of good advocacy. ing civil-litigation documents, the interposes against the plain- Some attorneys believe Legal Writer will discuss drafting com- tiff.6 A cross-claim is a claim one defen- G 7 that drafting litigation documents plaints in plenary actions and peti- dant brings against another. An inter- means pulling out a form book and tions in special proceedings. In the pleader is a by the filling in the blanks. Other attorneys coming months, the Legal Writer will defendant against another claimant. think that cutting and pasting new continue with drafting techniques for, A third-party complaint is a pleading information into an old document among other documents, answers, bill against someone who’s not yet a party. is good lawyering. Neither option of particulars, , motions These are also known as produces a good product. It’s easier to dismiss, and motions for summary “impleaders.” to devote yourself slavishly to forms . Defensive or responsive than to draft documents from scratch. The rules governing the form and include an and a . A party But attorneys who draft their own content of litigation documents vary may submit an answer in response to litigation documents are more suc- across , , and causes the following pleadings: complaint, cessful than attorneys who use forms. of action. That’s why you must “know petition, counterclaim (against a plain- Carefully prepared documents — not your local rules.”3 The Legal Writer will tiff), cross-claim (against a defendant), cut-and-paste jobs — elicit favorable focus on New York rules. complaint (defendant settlements and win cases. against another claimant), and third- Forms might be a starting point Pleadings Distinguished From party complaint (against a third party). when drafting litigation documents. Other Litigation Documents The answer gives you the opportunity They help the novice attorney under- Pleadings are documents in which a to admit allegations that are true and stand how a particular document party to a alleges facts set- to deny allegations that are false. An should look and what that document ting out causes of action or claims for answer also allows you to raise affir- should include. In the short run, relief. Pleadings are also documents in mative defenses and . forms have their advantages. Forms which a party responds with admis- Affirmative defenses under CPLR are generic, though, and each lawsuit sions and defenses; defenses are made 3018(b) include arbitration and award, presents unique facts and circumstanc- up of denials and affirmative defenses. collateral estoppel, discharge in bank- es. Forms can’t be easily tailored to fit You may deny as untrue allegations ruptcy, illegality, fraud, the defendant’s your case. “[B]y definition . . . [forms] your adversary makes; you may also infancy or disability, payment, release, are general, abstract, and sometimes raise affirmative defenses: defenses a res judicata, the ’s culpable even ambiguous.”1 Many forms, more- defendant must plead and prove at conduct under the comparative-negli- over, promote legalese over plain and . Some pleadings request affirma- gence rule, statute of frauds, statute of clear writing. No matter how diligent- tive relief; some pleadings are defen- limitations, and standing to sue. ly the attorney modifies archaic forms sive or responsive.4 CPLR 3011 sets A party may serve a reply in several to fit new facts, the form’s stilted legal- out the documents that are considered circumstances. A reply is appropriate isms will inevitably mar the effort. To pleadings. in response to an answer that contains some, legalese makes the document The pleadings that request affir- a counterclaim or an answer that con- impressive and attorneys seem intel- mative relief include a complaint, a tains an . In your ligent. But “judges who know about petition, a counterclaim, a cross-claim, reply, you give a legal excuse or excep- good writing suspect that beneath your an interpleader complaint, and a third- tion to an affirmative defense. A party legalese lurks linguistic, and perhaps party complaint. A petition is the initial may also serve a reply in response legal, incompetence.”2 pleading in a special proceeding; it’s to an answer to an interpleader com- the equivalent of the complaint in an Continued on Page 53

64 | September 2010 | NYSBA Journal The Legal Writer to compel disclosure, a to pre- are summonses, subpoenas, notices of Continued from Page 64 clude evidence, a motion for a stay, appearance, notes of issue, orders of and a motion for a protective order. To protection, temporary orders of pro- plaint or third-party complaint. An grant a summary-judgment motion, a tection, and exhibits.17 Exhibits can be interpleader complaint is a defendant’s must find that no material issue any size. The writing must be “legible pleading against another claimant; an of fact exists to warrant a trial. A party and in black ink.”18 answer will be required from the other may also move for partial summary For a summons, you must use claimant. Also, a party may serve a judgment, to dismiss a , at a minimum a 12-point type; for reply in response to an answer to a or to dismiss a defense. other documents, use at least 10-point cross-claim that contains a demand for Lawyers may also draft interrogato- type.19 an answer. ries — questions addressed to another party — in the context of disclosure.12 Other Litigation Documents The questions must be answered under A bill of particulars is an amplification oath and returned. Be careful: Your of a pleading: “Parties are required to Also in the context of disclosure is adversary will look particularize only that which they have a notice to admit: one party requires the .”8 Serve a bill of another party “to admit stated facts, for flaws in your particulars only when one is demanded or the genuineness of a paper or doc- from you. As a plaintiff, you must par- ument, or the correctness of photo- pleadings. ticularize your claims. As a defendant, graphs.”13 Use this disclosure device you must particularize your defenses, only when you reasonably believe no counterclaims, cross-claims, and third- substantial dispute exists about the Each document must have a cap- party claims. A bill of particulars is matter and when the information is tion containing the court’s name and meant to amplify the pleader’s conten- within the knowledge of the other , the document’s title, and the tions, not to offer an evidentiary basis party or ascertainable by the other index number.20 Some courts require for those contentions. party after an inquiry.14 that you include the assigned judge’s Motions are requests for court The Legal Writer will discuss these name. You must name all the parties to orders. Those orders may resolve litigation documents in upcoming the lawsuit in a summons, complaint, some, perhaps all, issues in the case. A issues. and judgment. On all other documents, court’s grant of a motion might result you need name only the first party on in a final resolution of the case. Or it Actions Versus Special each side and then include “et al.” to may resolve some aspect of the litiga- Proceedings and indicate that more parties exist. tion, a “housekeeping phase”9 of the Summary Proceedings Each document served or filed or litigation, while the litigation proceeds In New York, civil cases are prosecuted submitted to a court must have the under the parameters of the court’s as actions or as statute-authorized spe- name, address, telephone number, and order. Motions may be made before, cial proceedings.15 Examples of special signature of the attorney21 (or pro se during, or after trial and on . proceedings include CPLR Article 75 litigant, if the party is appearing pro A defendant may also file pre- proceedings to compel or stay arbitra- se) submitting the document. By sign- answer motions, such as a motion to tion, or to confirm, vacate, or modify ing the document, the attorney or pro dismiss. A party may move to strike,10 an arbitration award; CPLR Article 78 se litigant certifies the integrity of the seeking a court order to remove all or proceedings to challenge the decision document. part of the opposing party’s pleading. of a government agency or administra- Litigation documents must be in Sometimes a court will treat a pre- tive judge; ; habeas corpus; English.22 If you include an affidavit answer motion to dismiss under CPLR prohibitions; Family Court proceed- or exhibit in a foreign language, you 3211 as one for .11 ings; and summary proceedings, such must attach an English translation and Under CPLR 3213, a plaintiff may as landlord-tenant nonpayment or an affidavit from the translator. In also bring a summary-judgment holdover proceedings. the affidavit, translators must provide motion in lieu of a complaint. This is a their qualifications and swear that the quick way to bring a case based on “an General CPLR Requirements translation is accurate.23 instrument for the payment of money All New York civil litigation docu- Be careful: Your adversary will look only or upon any judgment.” ments must comply with the CPLR’s for flaws in your pleadings. Although Parties may also file motions after style and format rules. Civil litiga- the court will disregard defects in form an answer is filed. These include a tion documents must be on 8½-by- that don’t substantially prejudice a motion for summary judgment, a 11-inch white paper.16 Exempt from party’s rights, a party on whom a motion to reargue or renew, a motion the CPLR’s 8½-by-11-inch requirement document is served will be deemed

NYSBA Journal | September 2010 | 53 to have waived objections to defects CPLR 3014 provides that “[e]very courts like the New York City Civil unless a statement of particular objec- pleading shall consist of plain and con- Court and the district, city, town, and tions — along with the document — is cise statements in consecutively num- village courts.37 returned to the serving party within bered paragraphs. Each paragraph A summons with notice in lieu of a two days of receipt.24 shall contain, as far as practicable, a complaint served under CPLR 305(b) single allegation.” This rule is meant isn’t a pleading.38 It doesn’t require Pleading Rules to promote common sense and make serving an answer. In New York, you Determine whether your pleadings clear. Number and state each may not serve a bare summons.39 is a “notice pleading” jurisdiction.25 cause of action or defense separately. Filing a summons without a com- Knowing whether your jurisdiction is Causes of action and defense may be plaint or notice will not commence a “notice pleading” jurisdiction will stated alternatively or hypothetically. an action. You may serve a summons affect how specific your pleadings CPLR 3014 also provides that prior with notice without a complaint. In must be. New York is a notice-pleading statements in a pleading are “deemed the notice, state the nature of the jurisdiction. Notice pleading requires repeated or adopted subsequently in action, the relief you’re seeking, and parties to give their adversaries notice the same pleading.” the amount of money sought in the

The CPLR eliminates the ’s formality and constraints. of their claims or defenses26 even if CPLR 3013 and 3014 will be further event of a default (except in actions you’ve given the claim a wrong name discussed in the Legal Writer’s upcom- for medical malpractice, personal or you’ve drafted the pleading poorly. ing article on drafting the complaint. injury, or wrongful death). A defen- The “[s]ubstance [of the pleading] pre- CPLR 3017 requires that every dant served with a summons and vails over its articulateness.”27 pleading containing a cause of action notice may serve a demand for a com- Under CPLR 3013, the “[s]tatements (such as a complaint, counterclaim, plaint. With some exceptions under in a pleading shall be sufficiently par- cross-claim) contain a “demand for CPLR 320(a), a defendant has 20 days ticular to give the court and parties relief” — what the pleader seeks to after service of the summons to serve notice of the transactions, occurrences, obtain. Exceptions to this rule exist. For the demand.40 The complaint must be or series of transactions or occurrences, example, in personal injury, wrong- served within 20 days of the demand. intended to be proved and the mate- ful death actions, medical malprac- Serving an answer constitutes an rial elements of each cause of action tice actions, and any action against a appearance. When serving your or defense.”28 Under the old rules, municipal corporation, include a gen- demand for a complaint, also serve a pleadings had to set forth “facts” on eral relief, not a specific dollar amount notice of appearance. A demand for a which a party relied, not the evidence in .32 complaint doesn’t constitute a notice by which they could be proved.29 The Verification,33 “an affidavit swearing of appearance. Likewise, a notice of modern rules replace “facts” with to the truth of the pleading,” of plead- appearance isn’t a demand to serve “statements.” ings is optional under the CPLR.34 a complaint.41 Service of the demand The CPLR eliminates the common Some pleadings must be verified, extends the time to appear until 20 law’s formality and constraints. Today, including in a matrimonial action, a days after service of the complaint.42 pleadings are liberally construed and summary landlord-tenant proceeding, Under CPLR 3012(a), an answer or less rigid. Under the common law, and an Article 78 proceeding. Once a reply must be served within 20 days parties had to trade formal pleadings pleading is verified, each subsequent after service of the pleadings to which back and forth in the hope that the pleading must be verified.35 it responds.43 lawsuit could be narrowed to a few Advantages to serving a summons clearly defined factual issues.30 The Summons and Complaint and without a complaint include getting plaintiff had to state facts, but stat- Summons With Notice to the courthouse faster by avoiding ing conclusions or evidence could’ve Under CPLR 304, an action is com- drafting a lengthy complaint and set- been fatal to the pleading. This led to menced by filing a summons and com- tling the case quickly, without driving a never-ending cycle of papers and plaint or a summons with notice.36 An up legal fees.44 One reason to serve a interim disputes over the impossible action is commenced on filing a sum- summons without a complaint is if you distinction between fact, conclusion, mons and complaint in the Supreme have insufficient time or information and evidence.31 Those days are gone. and County Courts and even in lower to draft an adequate complaint.

54 | September 2010 | NYSBA Journal NEW YORK STATE BAR ASSOCIATION

One disadvantage is delay in join- 5. David D. Siegel, New York Practice § 552, at 948 Referral and der of issue. Issue is joined when an (4th ed. 2005). Information Service answer is filed. You give the defen- 6. Id. § 224, at 370. dant time to serve a notice of appear- 7. Id. § 227, at 374. Interested in expanding ance and, if the defendant chooses, to 8. Id. § 238, at 400. your client base? serve a demand for a complaint. If the 9. Id. § 243, at 409. defendant doesn’t make a demand, 10. Fajans et al., supra note 3 at 86–89. the plaintiff is still required to serve a 11. Siegel, supra note 5, § 279, at 461. complaint within 20 days after service 12. See generally Mary Barnard Ray & Barbara J. of the notice of appearance. Another Cox, Beyond the Basics: A Text for Advanced Legal Writing 292–311 (2d ed. 2003); Roger S. Haydock, disadvantage is that it might not toll David F. Herr & Jeffrey W. Stempel, Fundamentals the statute of limitations. A complaint, of Pretrial Litigation 345–83 (2d ed. 1992). even if deficient and inadequate, is 13. Siegel, supra note 5, § 364, at 602. likely to toll the statute of limitations. 14. Id. You may amend the complaint later. 15. CPLR 103(b). The Legal Writer will discuss amend- 16. CPLR 2101(a). ing pleadings in the upcoming issues. 17. Id. A court that dismisses a complaint 18. Id. Join the Lawyer Referral because of inadequate notice dismisses 19. Id. the case for jurisdictional reasons. You & Information Service 20. CPLR 2101(c). won’t, therefore, have the benefit of the 21. CPLR 2101(d). six-month tolling under CPLR 205(a). Why Join? 22. CPLR 2101(b). Serving a summons without a com- > Expand your client base 23. Id. > Benefit from our marketing plaint also delays disclosure oppor- strategies 24. CPLR 2101(f). tunities. The defendant won’t have to > Increase your bottom line serve an answer until you’ve served 25. Suzanne M. Lewis, Litigation 101: Drafting a Complaint, City Bar Ctr. for CLE 227, 227 (Dec. 8, 45 the complaint. Disadvantages also 2008). Overview of the Program The New York State Bar Association include applying the six-month toll- 26. Haydock et al., supra note 12, at 86. ing period under CPLR 205 as well as Lawyer Referral and Information 27. Siegel, supra note 5, § 208, at 344. Service (LRIS) has been in existence obtaining a against 28. CPLR 3013. since 1981. Our service provides a defendant if the defendant fails to 29. Siegel, supra note 5, § 207, at 342-43; see Michael referrals to attorneys like you in answer. P. Graff, The Art of Pleading — New York State Courts, 43 counties (check our Web site for a In the next column, the Legal Writer City Bar Ctr. for CLE 1, 7 (Dec. 8, 2008). list of the eligible counties). Lawyers who are members of LRIS pay an will discuss tips on how to draft a com- 30. Siegel, supra note 5, at § 207, at 342. ■ annual fee of $75 ($125 for non- plaint. 31. See id. NYSBA members). Proof of malprac- 32. Siegel, supra note 5, at § 217, at 357. tice insurance in the minimum 33. CPLR 3020, 3022, 3023. amount of $100,000 is required of all GERALD LEBOVITS is a judge of the New York City 34. Siegel, supra note 5, at § 232, at 389. participants. If you are retained by a Civil Court, Housing Part, in Manhattan and an referred client, you are required to adjunct professor at St. John’s University School 35. CPLR 3020(a) (some exceptions to verifying pay LRIS a referral fee of 10% for pleadings exist). of Law and Columbia Law School. He thanks any case fee of $500 or more. For court attorney Alexandra Standish for research- 36. CPLR 304(a). additional information, visit ing this column. Judge Lebovits’s e-mail address 37. Siegel, supra note 5, § 60, at 14–15 (supp. July www.nysba.org/joinlr. is [email protected]. 2010). 38. Graff, supra note 29, at 3 (“except for purposes Sign me up of removal of an action to federal court”). Download the LRIS application 1. Susan L. Brody, Jane Rutherford, Laurel A. 39. See Graff, supra note 29, at 5–6. at www.nysba.org/joinlr or call Vietzen & John C. Dernbach, Legal Drafting 4 1.800.342.3661 or e-mail [email protected] 40. CPLR 3012(b). (1994). to have an application sent to you. 41. Id. 2. Barbara Child, Drafting Legal Documents: Principles and Practice 39 (2d ed. 1992) (quoting 42. Id. GGiveive uuss a ccall!all! Robert W. Benson, Plain English Comes to Court, 13 43. CPLR 3012(c) (some exceptions exist where Litigation 21, 21 (Fall 1986)). service is extended to 30 days). 8800.342.366100.342.3661 3. Elizabeth Fajans, Mary R. Falk & Helene S. 44. See Graff, supra note 29, at 5–6. Shapo, Writing for Law Practice 31 (2004) (italics omitted). 45. Id. 4. Child, supra note 2, at 7–8.

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