DOCSLIB.ORG

The Anatomy of a Lawsuit 2 the Anatomy of a Lawsuit

Total Page：16

File Type：pdf, Size：1020Kb

Download full-text PDF Read full-text
The Anatomy of a Lawsuit 2 the Anatomy of a Lawsuit THE ANATOMY OF A LAWSUIT 2 THE ANATOMY OF A LAWSUIT Medical Liability Mutual Insurance Company (MLMIC) stands behind its management philosophy to aggressively defend and resist payment for groundless claims and to expeditiously compensate claimants for meritorious claims. Achieving these goals requires dedication and teamwork. We urge you to read this brief publication. The more you know about our procedures and your responsibilities, the better prepared you will be if you are involved in a claim. I. INTRODUCTION Although the formal sequence of events presented begins with the service of legal papers upon the healthcare professional, keep in mind that you can never be too cautious when dealing in the world of professional liability litigation. If you suspect a claim or a suit may be forthcoming, it is important to advise MLMIC's Claims Department immediately. Don't Wait for Legal Papers to be Served Warning signs of a possible action may include: l any communication from an attorney representing a patient. l any threat of a claim or suit by a patient or family member. l any untoward result that was not anticipated or that was, or was not, an inherent risk of the treatment given or surgery performed. l any request from a facility to participate in Quality Assurance/Risk Management meetings regarding an inquiry/investigation regarding treatment given. Reacting to these warning signs immediately gives us a chance to start compiling your potential defense while the events are still fresh in the minds of the witnesses. Further, we may be able to dispose of a legitimate claim more swiftly and economically before lawyers become involved. 3 Malpractice is professional negligence and medical II. YOU HAVE BEEN SERVED WITH malpractice is the negligence of a doctor. Negligence is the LEGAL PAPERS. TIME IS OF THE failure to use reasonable care under the circumstances; ESSENCE. doing something that a reasonably prudent doctor would not do under the circumstances, or failing to do something Be sure to: that a reasonably prudent doctor would do under the l Note the date and method of service. The three most circumstances. It is a deviation or departure from accepted frequently used methods of service include 1) personal practice. delivery directly to you; 2) delivery to another at your New York State Pattern Jury Instructions (Civil). (see place of business, dwelling, or abode, followed by a Appendix for complete text) mailing to either your place of business or residence; or 3) delivery by first class mail. If you receive legal papers by mail, do not complete and return any Non-Party Witness document without first discussing this with MLMIC. Under certain circumstances, you may receive a subpoena l Call the MLMIC Regional Claims Department to appear as a non-party witness in a pending action. If this immediately. occurs, it is imperative to notify MLMIC immediately so legal counsel may be assigned to protect your interest. o (212) 576-9850 [New York City, Westchester, Bronx, and Richmond Counties] o (516) 794-7200 [Kings, Queens, Nassau, and Reporting Events Suffolk Counties] In the course of your practice, an untoward incident may o (315) 428-1188 [upstate New York] occur which you feel could lead to a claim or suit. These incidents, also called ªevents,º should be reported to o (518) 786-2700 [Albany area]. MLMIC's Claims Department immediately so that basic data l The teamwork begins immediately. You will be assigned can be gathered soon after the incident occurs. These events a Claims Department representative who will handle will not be reported to any government agency, nor will they your file in the office. This individual will proffer affect your insurance in any way. some basic advice and will initiate the first steps in developing your defense, including assigning defense counsel to represent you. Your defense counsel will contact you immediately to discuss your defense and obtain information necessary for an appropriate response to the legal papers your received. 4 l Keep in mind that once you have been served with legal III. BUILDING YOUR DEFENSE: papers, MLMIC generally has only 20 days in which to THE TEAM GROWS respondÐeither to appear on your behalf or to have an answer to the complaint drafted and sent (essentially, the Giving MLMIC representatives your full cooperation is not ªanswerº denies any general allegations made). At the only the prudent course to follow, it is also mandatory. same time, your appointed attorney will serve a notice Condition 2b of your insurance policy reads, in part, as of a demand for a Bill of Particulars in which the plaintiff follows: ªEach Insured must cooperate with us in the must specify the nature of the charges against you. preparation of the defense, in investigating and in settling l If you fail to notify the company within the allotted time, Claims. For example, when we ask an Insured to, they an automatic judgment may be levied against you by must attend hearings, depositions, trials or arbitration default. Therefore, your quick response and cooperation proceedings.º are crucial components for a successful defense. l If you receive any additional legal papers dealing Meeting With Your Field Representative with this case, be sure to inform MLMIC's Claims The information provided to your Claims Representative is Department. then passed on to the Field Representative in your area. This individual will contact you and arrange for a personal Do not: interview, asking that in the interim you secure a copy of the plaintiff's pertinent records. l alter your records under any circumstances. MLMIC can defend, with difficulty, an incomplete record, but it The purpose of this initial meeting is to obtain from you a can not defend a fraudulent one. detailed account of what transpired during your treatment of the plaintiff. The representative's questions will be probing, l ignore or discard the summons or complaint. That exhaustive and possibly even irritating in their detail. But will only exacerbate the problems and hinder the remember, this Field Representative is another key member defense efforts being made on your behalf. of your defense team. l take matters into your own hands. Calling the plaintiff Once the interview is completed, the Field Representative or his/her attorney to challenge or cajole will only harm will send copies of your records and hospital charts to your case. MLMIC's Claims Department, along with a summary of your l speak to anyone about your case, including the conversation. These new materials are then incorporated patient, other medical professionals, or the facility into your case file and given to the company's expert where the care was provided. Speak only with your reviewers for their comments. MLMIC representative and assigned defense counsel. 5 IV. PEER REVIEW If these guidelines are not respected, or you are displeased with the treatment being afforded you by counsel, MLMIC After examining your file, MLMIC's consulting experts fully expects you will call it to our attention. express their professional opinions regarding your case. Just like the Field Representative and your Claims While their initial analysis may not determine how MLMIC Representative, your counsel is also working for you and is a will deal with the case, it will provide a better picture of the vital member of your overall defense team. extent of liability. Their advice and review, together with the investigation to date, will then be passed on to your defense Cooperation with your attorney is imperative for a well- counsel. defined defense V. INITIAL MEETING WITH COUNSEL VI. THE EXAMINATION BEFORE TRIAL Defense counsel will review all of the materials gathered The Examination Before Trial is a crucial episode during the thus far and will then meet with you. development of your case because the involved parties are under oath. This means that whatever you say will become The purpose of this meeting is to discuss potential part of the permanent record. If you state something as fact complications in your case, what you will need to do in your at the EBT and then contradict it in court, the record from own defense, and what to expect as the case goes along. the EBT can be produced and your credibility impeached. MLMIC has formulated certain guidelines which defense Therefore, you must be well prepared for this event. attorneys must follow. Strict adherence to these guidelines In preparation for the EBT, you should: is required. MLMIC also requires, among other things, that the lawyer: l review those records and charts identified by your attorney thoroughly. l meet with you well in advance of the times you must give testimony, either prior to or at trial. l review all appropriate details because you will be asked highly technical questions about medical facts which, l do adequate research and preparation for your defense on a day-to-day basis, you probably haven't thought prior to your Examination Before Trial (EBT). about for a while. l maintain a professional and helpful attitude toward Listen very carefully to the advice your attorney gives your particular case. you about preparing for your EBT and how to respond to l be available to keep you updated or answer any questions. questions you might have about your case's continuing At the conclusion of the EBT, your defense counsel will status. advise us about how, in his/her opinion, the examination 6 went: what kind of an impression you made as a witness The Decision to Fight (very important); what kind of an impression the plaintiff Should MLMIC's judgment, based on the data collected thus far, made as a witness; and potential strengths and weaknesses be to take your case to trial, a series of activities are initiated.
Load more

Recommended publications
  • The Shadow Rules of Joinder
    Brooklyn Law School BrooklynWorks Faculty Scholarship 2012 The hS adow Rules of Joinder Robin Effron Brooklyn Law School, [email protected] Follow this and additional works at: https://brooklynworks.brooklaw.edu/faculty Part of the Other Law Commons Recommended Citation 100 Geo. L. J. 759 (2011-2012) This Article is brought to you for free and open access by BrooklynWorks. It has been accepted for inclusion in Faculty Scholarship by an authorized administrator of BrooklynWorks. The Shadow Rules of Joinder ROBIN J. EFFRON* The Federal Rules of Civil Procedure provide litigants with procedural devices for joining claims and parties. Several of these rules demand that the claims or parties share a baseline of commonality, either in the form of the same "transactionor occurrence" or a "common question of law or fact." Both phrases have proved to be notoriously tricky in application.Commentators from the academy and the judiciary have attributed these difficulties to the context- specific and discretionary nature of the rules. This Article challenges that wisdom by suggesting that the doctrinal confu- sion can be attributed to deeper theoretical divisions in the judiciary, particu- larly with regardto the role of the ontological categories of "fact" and "law." These theoretical divisions have led lower courtjudges to craft shadow rules of joinder "Redescription" is the rule by which judges utilize a perceived law-fact distinction to characterizea set of facts as falling inside or outside a definition of commonality. "Impliedpredominance" is the rule in which judges have taken the Rule 23(b)(3) class action standard that common questions predominate over individual issues and applied it to other rules of joinder that do not have this express requirement.
    [Show full text]
  • APPENDIX TABLE of CONTENTS. PAGES
    APPENDIX TABLE of CONTENTS. PAGES. AppendixA is eight pages...........................................................................................1-8 Fourth District Court of Appeal, Division One, April 18, 2018, decision. AppendixB is one page...................................................................................................9 Denial of the Petition for Rehearing. AppendixC is two pages..........................................................................................10-11 California State Trial Court, order. AppendixD is one page .................................................................................................. 12 July 18, 2018 Order denying Discretionary Review by the California Supreme Court. AppendixE is one page.................................................................................................13 And contains copies of Article VI, clause 2 and Title 28 U.S.C. § 1291. AppendixF is one page.................................................................................................14 And contains Title 28. U.S.C. § 1367 (d) and Supreme Court Rule 10. (b) and (c). State of California Court of Appeal Fourth Appellate District Division One Filed 4/19/18 Not to be publishedi Case no. D072560 in official reports. ] Lower court: San Diego County Superior Court case no.: 37-2016-00038660- CU-PT-CTL Jack R. Koch, Plaintiff and Appellant, V. A. Estrella, et al., Defendants and Respondents. Appeal from ajudgment and order of the Superior Court of San Diego County, Lisa C. Schall, Judge.
    [Show full text]
  • Examples of Meritorious Summary Judgment Motions
    Examples of meritorious summary judgment motions By: Douglas H. Wilkins and Daniel I. Small February 13, 2020 Our last two columns addressed the real problem of overuse of summary judgment. Underuse is vanishingly rare. Even rarer (perhaps non-existent) is the case in which underuse ends up making a difference in the long run. But there are lessons to be learned by identifying cases in which you really should move for summary judgment. It is important to provide a reference point for evaluating the wisdom of filing a summary judgment motion. Here are some non-exclusive examples of good summary judgment candidates. Unambiguous written document: Perhaps the most common subject matter for a successful summary judgment motion is the contracts case or collections matter in which the whole dispute turns upon the unambiguous terms of a written note, contract, lease, insurance policy, trust or other document. See, e.g. United States Trust Co. of New York v. Herriott, 10 Mass. App. Ct. 131 (1980). The courts have said, quite generally, that “interpretation of the meaning of a term in a contract” is a question of law for the court. EventMonitor, Inc. v. Leness, 473 Mass. 540, 549 (2016). That doesn’t mean all questions of contract interpretation — just the unambiguous language. When the language of a contract is ambiguous, it is for the fact-finder to ascertain and give effect to the intention of the parties. See Acushnet Company v. Beam, Inc., 92 Mass. App. Ct. 687, 697 (2018). Ambiguous contracts are therefore not fodder for summary judgment. Ironically, there may be some confusion about what “unambiguous” means.
    [Show full text]
  • Construction Arbitration: Unique Joinder and Consolidation Challenges
    ® JUNE 2020 | VOLUME 74 | NUMBER 3 © 2020, American Arbitration Association Construction Arbitration: Unique Joinder and Consolidation Challenges Steven Champlin∗ Tiana Towns† Introduction It is well known that arbitration as a means of deciding disputes is used widely in the construction industry to avoid litigation costs and delays and for other reasons. To a great extent, the American Arbitration Association (AAA) has provided the preferred forum and rules. Yet, there are lawyers and their clients who question use of arbitration to resolve construction disputes. One of the reasons often advanced relates to the potential inability in some circumstances to join, that is add, some parties to a proceeding or consolidate related, but separate, arbitrations, with the consequence that multiple proceedings, increased expense, and inconsistent results can occur. It is important for those in the construction industry to understand what the joinder and consolidation challenges actually are and how they can be mitigated. I. Reasons Construction Disputes May Give Rise to Joinder and Consolidation Issues Construction disputes often require evaluation of which parties should be joined in a proceeding or whether a related arbitration should be consoli- dated with a proceeding for a number of reasons unique to the construction setting, which are discussed below. ∗After retiring from Dorsey & Whitney LLP, an international law firm, where he served as head of the firm’s construction and design group for over 20 years, Steven Champlin has devoted most of his professional activities to serving as an arbitrator. He is a member of the AAA National Roster of Arbitrators, Large, Complex Cases Panel, CPR’s National Panel of Distinguished Construction Neutrals, and the Court of Arbitration for Sport.
    [Show full text]
  • Initial Stages of Federal Litigation: Overview
    Initial Stages of Federal Litigation: Overview MARCELLUS MCRAE AND ROXANNA IRAN, GIBSON DUNN & CRUTCHER LLP WITH HOLLY B. BIONDO AND ELIZABETH RICHARDSON-ROYER, WITH PRACTICAL LAW LITIGATION A Practice Note explaining the initial steps of a For more information on commencing a lawsuit in federal court, including initial considerations and drafting the case initiating civil lawsuit in US district courts and the major documents, see Practice Notes, Commencing a Federal Lawsuit: procedural and practical considerations counsel Initial Considerations (http://us.practicallaw.com/3-504-0061) and Commencing a Federal Lawsuit: Drafting the Complaint (http:// face during a lawsuit's early stages. Specifically, us.practicallaw.com/5-506-8600); see also Standard Document, this Note explains how to begin a lawsuit, Complaint (Federal) (http://us.practicallaw.com/9-507-9951). respond to a complaint, prepare to defend a The plaintiff must include with the complaint: lawsuit and comply with discovery obligations The $400 filing fee. early in the litigation. Two copies of a corporate disclosure statement, if required (FRCP 7.1). A civil cover sheet, if required by the court's local rules. This Note explains the initial steps of a civil lawsuit in US district For more information on filing procedures in federal court, see courts (the trial courts of the federal court system) and the major Practice Note, Commencing a Federal Lawsuit: Filing and Serving the procedural and practical considerations counsel face during a Complaint (http://us.practicallaw.com/9-506-3484). lawsuit's early stages. It covers the steps from filing a complaint through the initial disclosures litigants must make in connection with SERVICE OF PROCESS discovery.
    [Show full text]
  • Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation John E
    Journal of Air Law and Commerce Volume 38 | Issue 3 Article 4 1972 Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation John E. Kennedy Follow this and additional works at: https://scholar.smu.edu/jalc Recommended Citation John E. Kennedy, Counterclaims, Cross-Claims and Impleader in Federal Aviation Litigation, 38 J. Air L. & Com. 325 (1972) https://scholar.smu.edu/jalc/vol38/iss3/4 This Article is brought to you for free and open access by the Law Journals at SMU Scholar. It has been accepted for inclusion in Journal of Air Law and Commerce by an authorized administrator of SMU Scholar. For more information, please visit http://digitalrepository.smu.edu. COUNTERCLAIMS, CROSS-CLAIMS AND IMPLEADER IN FEDERAL AVIATION LITIGATION JOHN E. KENNEDY* I. THE GENERAL PROBLEM: MULTIPLE POTENTIAL PLAINTIFFS AND DEFENDANTS W HEN airplanes crash, difficult procedural problems often arise from the numbers of potential parties and the com- plexity of the applicable substantive law. Since under that law, re- covery can be granted to large numbers of plaintiffs, and liability can be distributed to a variety of defendants, the procedural rights to counterclaim, cross-claim and implead third-parties have become important aspects of federal aviation litigation. When death results the most obvious parties plaintiff are those injured by the death of the decedent, i.e., the spouses, children, heirs and creditors. Whether they must sue through an estate, or special administrator or directly by themselves will ordinarily be determined by the particular state wrongful death statute under which the action is brought, and the capacity law of the forum.' In addition, the status of the decedent will also have bearing on the parties and the form of action.
    [Show full text]
  • Illinois Civil Practice Guide
    Practice Series Illinois Civil Practice Guide Andrew W. Vail Colleen G. DeRosa © 2012 JENNER & BLOCK LLP ALL RIGHTS RESERVED www.jenner.com ABOUT JENNER & BLOCK Founded in 1914, Jenner & Block is a national law firm of approximately 450 attorneys. Our Firm has been widely recognized for producing outstanding results in corporate transactions and securing significant litigation victories from the trial level through the United States Supreme Court. Companies and individuals around the world trust Jenner & Block with their most sensitive and consequential matters. Our clients range from the top ranks of the Fortune 500, large privately held corporations and financial services institutions to emerging companies, family-run businesses and individuals. OFFICES 353 North Clark Street 633 West Fifth Street, Suite 3500 Chicago, Illinois 60654-3456 Los Angeles, California 90071 Firm: 312 222-9350 Firm: 213 239-5100 Fax: 312 527-0484 Fax: 213 239-5199 919 Third Avenue, 37th Floor 1099 New York Avenue, N.W., Suite 900 New York, New York 10022-3908 Washington, D.C. 20001-900 Firm: 212 891-1600 Firm: 202 639-6000 Fax: 212 891-1699 Fax: 202 639-6066 © 2012 Jenner & Block LLP. This publication is not intended to provide legal advice but to provide general information on legal matters. Transmission is not intended to create and receipt does not establish an attorney- client relationship. Readers should seek specific legal advice before taking any action with respect to matters mentioned in this publication. The attorney responsible for this publication is Andrew W. Vail. ATTORNEY ADVERTISING 1 AUTHOR INFORMATION Andrew W. Vail is a partner in Jenner & Block’s Litigation Department and a member of the Firm’s Complex Commercial and Antitrust Litigation Practice Groups.
    [Show full text]
  • Summons with Attached Proof of Service
    Form 7: Summons and Attached Proof of Service—Page 1 of 3 Name (Plaintiff’s name, address, and telephone number) Address Telephone Plaintiff, Pro Se SUPERIOR COURT OF NEW JERSEY CHANCERY DIVISION—FAMILY PART COUNTY (County where complaint is filed) DOCKET NO. FM (Docket number of complaint) Name: Plaintiff CIVIL ACTION vs. SUMMONS Name: Defendant FROM THE STATE OF NEW JERSEY TO THE DEFENDANT NAMED ABOVE: The plaintiff, named above, has filed a lawsuit against you in the Superior Court of New Jersey. The complaint attached to this summons states the basis for this lawsuit. If you dispute this complaint, you or your attorney must file a written answer or motion and proof of service with the deputy clerk of the Superior Court in the county listed above within 35 days from the date you received this summons, not counting the date you received it. (A directory of the addresses of each deputy clerk of the Superior Court is available in the Civil Division Management Office in the county listed above and online at www.njcourts.gov/forms/11237_directory_civil_ofcs.pdf.) If the complaint is one in foreclosure, then you must file your written answer or motion and proof of service with the Clerk of the Superior Court, Hughes Justice Complex, P.O. Box 971, Trenton, NJ 08625-0971. A filing fee payable to the Treasurer, State of New Jersey and a completed Case Information Statement (available from the deputy clerk of the Superior Court) must accompany your answer or motion when it is filed. You must also send a copy of your answer or motion to plaintiff's attorney whose name and address appear above, or to plaintiff, if no attorney is named above.
    [Show full text]
  • A New Approach to Plaintiff Incentive Fees in Class Action Lawsuits
    Copyright 2020 by Jason Jarvis Printed in U.S.A. Vol. 115, No. 3 Note A NEW APPROACH TO PLAINTIFF INCENTIVE FEES IN CLASS ACTION LAWSUITS Jason Jarvis ABSTRACT—Because modern litigation is time-intensive and expensive, a consumer has no monetary incentive to sue over a low-value claim—even when the defendant has clearly violated that consumer’s legal rights. But the defendant may have harmed many consumers in the same way, causing significant cumulative damage. By permitting the aggregation of numerous small claims, class action lawsuits provide a monetary incentive for lawyers and plaintiffs to pursue otherwise low-value suits. Often, an important part of this incentive is the “incentive fee,” an additional payment awarded to the named plaintiffs as compensation for the time they spend and risks they assume in representing the class. But such fees have the potential to create dangerous conflicts of interest—named plaintiffs may be “bought off” with a large incentive fee to give their approval to an otherwise unfair settlement. To avoid this problem, courts must review and approve requests for incentive fees. Unfortunately, courts do not adequately evaluate the dangers of incentive awards and balance these dangers against the justifications for such awards. This Note proposes a new test to better guide courts in assessing the propriety of incentive fees. Specifically, courts should look at (1) the amount of time and effort that the plaintiff expended in pursuing the litigation; (2) risks that the named plaintiff faced in bringing and advancing the litigation; and (3) evidence of conflicts of interest that might prejudice the class.
    [Show full text]
  • Motion to Dismiss
    Connecticut Judicial Branch Self-Represented Parties Information Series Motion to Dismiss Screen 1 Welcome to the Connecticut Judicial Branch Law Libraries Self-Represented Parties Information Series Screen 2 Connecticut Civil Lawsuit: Motion to Dismiss In this overview, we will discuss the grounds, or reasons, and general procedures for filing a Motion to Dismiss in a Connecticut civil lawsuit. Getting in touch with a lawyer to help you is a good idea. But, if you decide to act as your own lawyer, the following is information to think about regarding this motion. Screen 3 Some words to know A Motion means a pleading or paper filed in a case, usually written, asking or requesting the court to make a decision or judgment on something. It is filed in the Clerk’s Office. The word Dismiss means to end the lawsuit or case. Jurisdiction refers to the power and authority of the court to hear and make a decision or judgment in a lawsuit or case. Venue means the physical location of the court, the specific Judicial District courthouse. Standing means that a person, business, or governmental entity has a legal right to sue in the court. An example of a legal right is when there is a real controversy between the parties that the court can hear and provide relief to a party or parties. There can be many factors that determine if a person, business, or governmental entity has standing. Screen 4 Some more words to know The word Process refers to all the legally required paperwork to begin a lawsuit, including the complaint and the writ of summons, which is an official legal document requiring a person to appear in court to answer a complaint.
    [Show full text]
  • United Healthcare Corporation Class Action Litigation Frequently Asked Questions
    United Healthcare Corporation Class Action Litigation Frequently Asked Questions 1. Overview 2. What benefits does the Settlement provide? 3. Why did I receive this information when I was never a subscriber or out-of-network provider? 4. Why did I receive more than one Notice? 5. I believe I am a Class Member, but I did not receive the Notice and Claim Form. How can I obtain a copy of these documents? 6. What are my options? 7. What do I need to do in order to take part in this class action and receive a payment? 8. How much money am I likely to receive from this class action? 9. When can I expect to receive my payment? 10. If I missed the filing deadline, will my late claim be accepted? 11. How can I exclude myself from this Settlement? 12. I am a primary insured. Should my claim have information for the medical services and supplies I personally used, or those used by my family (myself and the dependents listed in my coverage)? 13. I have a number of healthcare services claims that UHC denied completely. Can I make a claim for such denied medical services? 14. The Notice says that I may request certain claims information. What do I need to do? 15. I am a Provider and would like to know whether some of the patients that owe me money filed claims in this case. What do I need to do? 16. Some of the information on my record of medical services is either missing or wrong.
    [Show full text]
  • Bill of Particulars—A Very Powerful Tool
    Demand for a Bill of Particulars—A Very Powerful Tool What discovery methods do you consider when you are strategizing about the most effective method to obtain the information you need to pin down your opponent? If you are defending a contract case, think about serving a Demand for Bill of Particulars. A Demand for Bill of Particulars is NOT a discovery device, but an extension of the complaint or a cross-complaint [complaint]. It is a cost-effective method with a turnaround time of 10 days and if the court finds that any of the line items are deficient it can strike the entry and preclude plaintiff/cross- complainant [plaintiff] from proving the debt is owed. Unlike interrogatories and deposition responses where contradictory evidence can be admitted by the plaintiff, the Bill of Particulars is conclusive as to the items and amounts claimed and no other evidence is admissible at trial. What is a Demand for Bill of Particulars? The Demand for a Bill of Particulars presumes that the plaintiff suing has a “book” or “contemporaneous ledger” or an “account” to support any charges when the complaint was filed and provides a court process to require that it be presented upon demand. The account, unlike the pleading in a complaint, is supposed to “furnish a defendant with the details of the items charged against him…” Meredith v. Marks (1963) 212 Cal. App. 2d 265, 269. This procedure dates back to early common law when plaintiff sued on an alleged account, and the pleadings gave no specifics as to the nature of the claim –i.e., whether contract, quasi-contract etc.
    [Show full text]