On Behalf of | Oct 25, 2019 | General, Law Practice, Legal Issues & Procedures

We have seen that litigation is best practiced as the art of telling stories. This post explores how that process begins, because the start of litigation can be very formal. The trick is to get the story of the plaintiff or defendant through the formality that begins a case. As will be seen, that is not easy to do, and clients should not expect this part of the litigation to pass quickly or cheaply. Moreover, it is rare that a case is resolved at this stage. Most will move on to discovery, which is a topic for a different post.

How Things Get Going

A civil lawsuit begins with the filing with the court of a complaint. The complaint should tell the plaintiff’s basic story. In the federal system the complaint must give notice of facts supporting claims against the defendant. Claims are amalgamations of facts and that law that, if true, would be violations of law that a court should remedy. Most states use essentially the same procedure. The allegations of the complaint must be stated in individual numbered paragraphs, each building toward the ultimate conclusion that defendant is liable for some claim the plaintiff is making. Pleading a complaint is more art than science and lawyers spend a long time making one just right. The complaint concludes with a prayer that says what the plaintiff expects the court to award. The award can be money damages, equitable relief, or both.

Lawyers must make quite a bit of effort in putting together a good complaint. And not just for the obvious reason of wanting to win. Federal Rule of Civil Procedure 11 and other laws require lawyers to have a good faith factual basis for the complaint. All legal assertions in the complaint must have a basis in the law or the way the law should be. Failure to follow Rule 11 can have consequences for both the lawyer and the client. Always make sure that the lawyer you have hired will follow Rule 11 and other related laws and be patient while he or she does. Also keep in mind that the requirements of Rule 11 and related laws apply to all things filed with the court, so a good lawyer will be constantly reviewing the facts and law to ensure continuing compliance.

Although Federal Rule of Civil Procedure 8 allows a relatively simple set of allegations to make a complaint, keep in mind that it is the first opportunity the plaintiff has to start telling the story of the case. This adds another level of effort that an attorney must expend in drafting a good complaint. The hope is that the judge will start his or her understanding of the case by first reading the complaint. Indeed, good complaints often begin with an introduction that summarizes the plaintiff’s case and the law that governs that case. If you are a plaintiff, make sure your attorney does a good job setting out the story that justifies the award sought at the end of the complaint.

To place any litigation obligations on the defendant—except for the duty to preserve evidence—the complaint must be served on the defendant. The civil rules of procedure provide for several methods of making service, including the familiar personal service with a process server. In federal practice, the defendant has 20 days to appear in court after these types of service. In practice the usual way that complaints are served is through acceptance of service by the defendant’s lawyer. Then, a civil defendant normally gets 60 days to appear in federal court. All of this assumes that the plaintiff is not seeking equitable relief like a preliminary injunction. We will get to that later in this blog. One other practice pointer is that the parties ordinarily negotiate the actual date of first appearance to allow time for defendant’s lawyer to investigate and prepare the response. Lawyers control the timing of a case—not clients—so this type of accommodation is normal professional courtesy.

If a case is filed in state court, but would satisfy the requirements for jurisdiction in federal court, then the defendant has 30 days in which to “remove” the case to the federal forum. Removing a case transfers jurisdiction to the federal court, but it can be challenged if an argument against federal jurisdiction exists. Removal is usually a good idea in any case presenting complex federal issues, or if the case also spreads across numerous states. It can also be a good idea if the state forum is questionable in its ability to make a good decision, or would have difficulty planning for and overseeing the conduct of large and complex discovery. But federal court jurisdiction can be tricky, so before removing the case, the defendant’s attorney must carefully analyze the issues. Removal can be expensive if the plaintiff disputes it; another reason to analyze carefully whether removal is to the defendant’s advantage in each case where it is considered. 

It is my experience that defense lawyers will always recommend removing a case if they can. Federal court is seen as more favorable to defendants than are state courts. I am not aware of any study that proves this rule of thumb. So, clients should slow their lawyers down on removal and force them to carefully weigh all the factors that affect whether removal makes sense in a particular case. Only after weighing all of the factors in a case, should the decision to remove be made. Cost should be one of those factors, but in most cases not the controlling factor. The goal, after all, is to win.

Assuming any removal issues are resolved and the case is in federal court, the next requirement is that the defendant “appear.” A defendant can appear in either of two ways. First, the defendant can make a motion or motions to have the complaint dismissed. These are usually of one or both of two types. A motion to dismiss for lack of jurisdiction or a motion to dismiss for failure to state a claim. The second method of appearance is to skip motions practice and file an answer. The answer responds paragraph by paragraph to the allegations in the complaint and raises any affirmative defenses that may exist. More on the answer is explained below. Right now, I want to review what is involved in early motion practice.

Motion Practice and its Pitfalls


Rule 12 of the Federal Rules of Civil Procedure offers several motions that can be made as a defendant’s first appearance. Three are of special importance, though, as they are the most likely to be made in typical commercial and government litigation. The first and most fundamental is a motion that the case should be dismissed because the court does not have jurisdiction to decide on the subject matter of the case. If, for example, the case does not allege a federal claim and federal jurisdiction does not otherwise exist, a motion to dismiss for lack of subject matter jurisdiction is available. When a good argument exists against subject matter jurisdiction, a motion to dismiss should always be made. Courts are very sensitive to whether they have jurisdiction, and are likely to dismiss a case when any serious question of subject matter jurisdiction exists.

A second possible motion is that the court does not have personal jurisdiction over the defendant. This motion becomes important when the defendant is from another state and has no direct contacts with the state in which the action is brought. In such an event, the Constitution would forbid the court from hearing the case. In order to use this defense reference must be made to the state’s “long arm” statute to see whether the state has exerted jurisdiction over the defendant. Nowadays most long arm statutes extend to the maximum jurisdiction allowed by the Constitution, which is very broad. Motions based on lack of personal jurisdiction are therefore rare, but still are used in some cases.

Failure to State a Claim

The type of motion I want to discuss in some detail is the motion to dismiss for failure to state a claim. Often you will hear lawyers refer to this as a 12(b)(6) motion. This refers to Federal Rule of Civil Procedure 12(b)(6). States have counterparts to the federal rule, so the motion can become an issue in every civil case. This motion argues that the plaintiff has not laid out facts–told a story–sufficient to justify the form of legal relief asked for in the complaint. Essentially it is an argument that the court should not waste its time listening to plaintiff’s story because nothing about it could lead to any form of relief.

Winning a 12(b)6 motion in a way that ends the case is difficult for two reasons. First, under the Federal Rules of Civil procedure it is not difficult to plead a claim that will survive the motion. Two relatively recent US Supreme Court cases have made it more difficult to state facts that will justify a claim. See Ashcroft v. Iqbal, 556 U.S. 662 (2009); Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007). Under these cases facts must be stated that are plausible, not just possible or likely. If, however, the plaintiff has a good story to tell, it should be possible for it to meet these standards. If it cannot meet these standards, it should not be wasting its time in court. The important point for the layman to take from this is that courts and litigants are constantly arguing over the requirements to state a claim. Under new federal law it may be easier to get a case dismissed, but a well thought out plaintiff’s case should be able to make the cut.

The second reason it is difficult to win a dispositive 12(b)(6) motion is that the rules of civil procedure generally make it very easy to amend the complaint. If the court grants a motion to dismiss, it usually offers the plaintiff the opportunity to amend the complaint to overcome the flaw that resulted in the motion being granted. Usually the plaintiff will take this opportunity unless it is impossible to amend. But lawyers being lawyers they usually can think of ways around the defect in the complaint. Then the defendant is left with the question whether to file another motion. It can go on this way for awhile.

So, is it worth it to file a motion to dismiss at the outset of the case? Often it will be. In some cases, the plaintiff simply will not be able to tell a story that justifies relief. The motion to dismiss is definitely justified in those cases. Another reason for filing the motions is it is the first time the defendant gets to start telling its story and why the plaintiff’s story is weak. The purpose is to begin educating the judge on the defendant’s response. The other reason for filing is to tell the judge that plaintiff’s case, even if it survives motion practice, is not worth much litigation, and this can set up motions restricting the amount of discovery that is required of the defendant.

Motions to dismiss can be expensive. The client should require careful analysis from the lawyers in any particular case whether the motions are worth what they are going to cost. The client should request a budget from the lawyers what the motions will cost, and a statement of expected and desired results. As with all parts of litigation, a client should know what it is getting itself into and force its lawyers to do careful thinking before jumping into a procedure.

The Answer

Answering Allegations in the Complaint

Assuming that the defendant has not moved against the complaint or that some version of the complaint has survived motion practice, it is time for the defendant to answer the plaintiff’s allegations. The answer is, like the complaint, a formal and technical document that can consist of several parts. In the first part, the defendant must answer each allegation of plaintiff by admitting it is true, admitting that part of it is true, and denying those parts of the allegation that the defendant does not agree is true. Defendants can also answer by saying they do not have sufficient information to admit an allegation, that it’s a legal conclusion not requiring a response, or that it is an allegation of law or from a document and that item speaks for itself. Defendants also often put an introduction in their answers that summarizes their story before going into the specifics of the answer. This is a good approach because it breaks through the formality of the answer, but it needs to be prepared carefully so that the story is accurately stated and stays true to the litigation positions the defendant takes in the rest of the case. One of the worst things that can happen is later being contradicted by one’s own pleading positions.

Similar to pleading a complaint, answering allegations is more art than science. The active participation of the client is required to allow the defendant’s lawyer to correctly answer each allegation. The defendant’s lawyer must thoroughly interview and investigate the client for the answer to be prepared correctly. This is on top of the investigation that has to occur at the beginning of the case before motion practice.

The goal of answering allegations is to deny them if possible or admit them narrowly and perhaps with a counter-allegation. The purpose of this approach is to weaken the plaintiff’s story and to set the case up for discovery motions and final resolution. This approach also is to make sure not to admit accidentally any allegation that could be dispositive in favor of the plaintiff. But it is critical to keep in mind that the lawyer and the client have a duty to answer allegations truthfully and in good faith. If an allegation is factually true the defendant must admit it, no matter how painful.

Affirmative Defenses

Often the defendant has arguments that the plaintiff should not recover other than denying the allegations in the complaint. These arguments need to be stated in the answer as affirmative defenses, and the plaintiff has a chance to respond to them in a motion to strike or a reply. Two of the more common affirmative defenses are the statute of limitations and claim preclusion. Both require proof of facts not already stated in the complaint or the first part of the answer. To plead the statute of limitations defense, for example, the defendant must allege that the date the claim happened is earlier than the statute of limitations would allow. To plead claim preclusion, the defendant must allege that plaintiff’s case has already been decided by a court or appropriate administrative agency.

At my last litigation job we had a list of the common affirmative defenses. Whenever a case came in we checked that list against the facts of the case. The danger of affirmative defenses is that some can be waived if they are not either raised in a motion to dismiss or in the first answer. In Oregon and most jurisdictions this would be a defense like the statute of limitations or venue. I always thought our list was a good idea, and I recommend finding one or drafting one to all litigation attorneys.

Getting affirmative defenses right requires factual and legal research. Sometimes they are simple and do not require much work, but in more complex cases there is no such luck. Make sure the attorney does the work needed to plead the defense in a way that advances the basic story, and you will be rewarded later.

Counterclaims, Cross-Claims, and Claims Against Non-Parties

An answer can also be a complaint. The defendant can sue the plaintiff in a counterclaim if the defendant has its own reasons for recovering from the plaintiff. The defendant also can sue other defendants (usually for indemnity from plaintiff’s claims) in cross-claims. And the defendant can sue another person not already in the case for a claim related to the case, most often indemnity. As you can see this can become complex very quickly. Sorting through and keeping track of all these claims is the lawyer’s job, but he or she will need a lot of help identifying and pleading claims in these more exotic situations. In my experience, these types of complex litigation have been relatively rare and in my multiple claim cases have been for insurance coverage. In public litigation, complex pleading like this does not happen as often, but it can and has.


This post has provided a 30,000 foot level look at the way pleadings start the case and need to tell each side’s story, despite complexity and formality. I hope it helps clients and beginning lawyers to understand the goal of pleadings and the basic vocabulary lawyers use to discuss them. After the pleading portion of the case is finished, it is time to move on to discovery, summary judgment, settlement discussions, and, rarely, trial. But more about those will come in future posts. The most important point is that the pleadings and pleading practice set the foundation for all of these subsequent steps. They are where the story must start and remain consistent with them throughout the litigation.

About Foundation In Law

Foundation In Law

Over a long career as a practicing attorney, Frank Hammond came to realize many prospective legal clients do not know much about lawyering and lawyers – how they work, how fees are set, and how to deal with them. Beginning attorneys also often have little notion of what actual practice involves. This blog is meant to be a guide for both.

Disclaimer: The Foundation in Law blog is not intended to provide legal advice, and no attorney-client relationship will arise as a result of interacting with this blog. You are advised to consult with your own attorney regarding legal questions. The opinions expressed in this blog are those of the author alone. The author is licensed only to practice in the State of Oregon.