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The Occasional Litigator's Guide to Making the Most of Pleadings and Motions

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The Occasional Litigator's Guide to Making the Most of Pleadings and Motions The Occasional Litigator’s Guide to Making the Most of Pleadings and Motions By Patrick M. Kinnally n analyzing a legal problem, you course of action. The trial judge will If you’re not a full-time must understand that for every po- thank you for doing this. litigator or are otherwise I sition you might advance there is Plead facts, not conclusions. Illinois always an antithesis. This is nothing is a fact pleading state. Unlike in feder- inexperienced, you new, of course, but we too often forget al courts, notice pleading is not permit- may not know that you in the tempest of litigation. ted. So, what does that mean? Basically, This is certainly true for motion a complaint or affirmative defense must can win a motion but practice, especially motions with re- state facts plainly and concisely and spect to pleadings. The key, then, is to contain the elements necessary to state a harm your case by convince the court of the essential recti- cause of action against the appropriate unnecessarily educating tude of your client’s position. This is no parties.7 Conclusions of fact and/or law easy task. To succeed, you must (1) be- are insufficient.8 your opponent, lieve your opponent is smarter than Consider this analogy – in civil trials, delaying the outcome, you, (2) prepare your response not the plaintiff has a right to make a jury merely to win the immediate battle but demand. When a defendant appears, and increasing costs. the litigation war, and (3) style your re- she need not make a jury demand, but Here’s advice about sponse in a simple, coherent matter that has the right to rely on the plaintiff’s de- the judge will want to read. mand. If the plaintiff waives his jury de- using motions and mand prior to trial, the defendant then pleadings wisely and I. Analyze Your has a right to make his own jury de- Opponent’s Pleadings mand and pay the appropriate fee. avoiding pitfalls. A. Pleadings Generally Thus it is with pleadings.9 The defen- Motions to dismiss. You can only file dant has a right to rely on what the a motion to dismiss in Illinois state court plaintiff stated in his complaint, not when you understand what is required only as to the content of the complaint to file a pleading. Is the defense truly an and who the parties are, but more im- 1 portantly, the relief sought in the ad affirmative one? It only will be viewed 10 as such where the answer or defense damnum portion of the pleading. gives color to the opposing party’s claim Hence, without amendment of the com- and then asserts a new matter by which plaint, the court is only permitted to that apparent right is defeated.2 change the amount of the ad damnum Nice jargon. What does it mean? In a clause by fashioning orders that protect __________ contract action, for example, failure of 1. 735 ILCS 5/2-613. consideration is an affirmative defense, 2. Ferris Elevator Co, Inc v Neffco, 285 Ill App 3d because it admits that a contract exists 350, 354, 674 NE2d 449, 452 (3d D 1996). but offers an excuse for non-perform- 3. Worner Agency, Inc v Doyle, 121 Ill App 3d 219, 3 221, 459 NE2d 633, 635 (4th D 1984). ance. On the other hand, a lack of con- 4. 735 ILCS 5/2-615. sideration is not an affirmative defense, 5. 735 ILCS 5/2-619. 6. 735 ILCS 5/2-619.1. because it contends there is no contract. 7. 735 ILCS 5/2-603. If you evaluate your opponent’s plead- 8. Knox College v Celotex Corp, 88 Ill 2d 407, 430 ings, you can then decide whether fil- NE2d 976 (1982). 4 9. Cook v Burnette, 341 Ill App 3d 652, 662-663, 793 ing a motion to dismiss or for involun- NE2d 160, 167 (1st D 2003). tary dismissal5 or both6 is the proper 10. 735 ILCS 5/2-604. 1 the adverse party against not only pre- If a claim or defense is founded upon a claim or affirmative defense is founded. judice, but surprise. written instrument, a copy thereof, or of Additionally, incorporating the exhibit Be specific. Where pleading a breach so much of the same as is relevant, must by reference also seems to be required. of statutory duty or a judgment order, be attached to the pleading as an exhibit Yes, you can attach other documents recite the existence of such statute, ordi- or recited therein, unless the pleader at- to your complaint that have evidentiary taches to his or her pleading an affidavit 11 worth. Should you? What value do you nance, or judgment. In pleading a con- stating facts showing that the instrument dition precedent in a contract action, is not accessible to him or her. In plead- gain? A request to admit filed later in you must plead that your client per- ing any written instrument, a copy there- the litigation may better serve your formed the triggering condition or you of may be attached to the pleading as an client’s interests. Incorporating exhibits will not have stated a necessary element exhibit. In either case the exhibit consti- in a complaint or defense provides you of your cause of action. Contrariwise, in tutes a part of the pleading for all pur- with strategic choices for forcing admis- setting up your answer, you cannot poses.17 sions on the one hand and, perhaps, merely say the plaintiff did not perform, The overriding consideration here is forcing your opponent into an unwant- but must state how the failure to per- choice. Do you want to attach an exhib- ed position. But if used unwisely, they form occurred. Supreme Court Rule it to the pleading? The decision may be can have unhelpful consequences for 133(c) says: critical, because an exhibit not only your client. In pleading the performance of a condi- binds the pleader to the exhibit’s con- C. Verified Complaints and Other tion precedent in a contract, it is sufficient tents, but to the extent it contravenes a Pleadings Pointers to allege generally that the party per- pleaded allegation of fact, the exhibit formed all the conditions on his part; if controls.18 In reviewing or preparing any com- the allegation be denied, the facts must You may or may not want to attach plaint, there is no prohibition against be alleged in connection with the denial an exhibit at the outset of litigation if showing wherein there was a failure to __________ 12 you are uncertain as to the position or perform. 11. S Ct Rule 133. Thus, in the commercial context strategy of your opponent. You do not 12. S Ct Rule 133(c). where you merely deny the plaintiff’s need to attach the 118-page franchise 13. Wilbur v Potpora, 123 Ill App 3d 166, 171, 462 agreement. The trial judge will thank NE2d 734, 737 (1st D 1984). claim that he performed his obligations 14. Van Meter v Darien Park Dist, 207 Ill 2d 359, 799 under a contract requiring perform- you for not doing that. Attach only the NE2d 273 (2003). portions upon which the claim or de- 15. 735 ILCS 5/2-613(d). ance, that general denial merely acts as 16. S Ct Rule 134. an admission of the plaintiff’s perform- fense rests. 17. 735 ILCS 5/2-606. ance. The rule requires the person re- Proceed with caution. So, must you 18. Fowley v Braden, 4 Ill 2d 355, 359, 122 NE2d 559, attach the exhibit if your claim or de- 562 (1954). sponding to the complaint to say how 19. Moorman Mfg Co v National Tank Co, 91 Ill 2d 69, the pleader failed to perform.13 An un- fense is based on a written instrument? 92-93, 435 NE2d 443 (1982). Probably not. The Code says the exhibit 20. Jones v Lazerson, 203 Ill App 3d 829, 832-833, 561 witting admission of plaintiff’s per- NE2d 151, 153 (5th D 1990); see also Garrison v Choh, formance, if she has not performed, “must be attached to the pleading as an 308 Ill App 3d 48, 54-55, 719 NE2d 237, 241-42 (1st D may be a serious error. exhibit or recited therein.” Thus, it 1999). The same is true for pleading an af- would appear the “recitation” of the firmative defense. If your client wants relevant portion of the exhibit in the to assert an affirmative defense at trial, complaint should suffice. ABOUT THE AUTHOR Although the supreme court has he has to specifically plead it as a matter 19 of fact. Otherwise, it is waived even if only ruled on this issue in dicta, every the trial evidence supports it.14 You can- exhibit appended to a complaint upon not just interpose an affirmative defense which a claim or defense is based de- in a conclusory fashion, but must state notes that its contents, to the extent they facts that show it is truly affirmative. conflict with actual allegations of the Think of pleadings as boundary mark- pleading, are controlling. But if the docu- ers that clearly delineate your client’s ment is not one upon which a claim or position to avoid surprise. Even if you defense is founded, the exhibit will not don’t, the trial judge will.15 control. For example, in an employment B. Exhibit Dos and Don’ts claim where the plaintiff attached to her The exhibit controls.
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