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Drafting Pleadings

This guide describes resources and strategies for drafting pleadings that begin litigation such as complaints and answers.

Types of Pleadings

Litigation generates documents that may be considered pleadings.  Pleadings considered here are those that begin the litigation:  the complaint, the answer, third party complaints, and related pleadings to filing an action.  Motions, discovery, and other civil procedure documents are not covered in this guide.

Complaints, Answers, Counterclaims, Third Party Complaints

The complaint initiates litigation. It states the facts that comprise the claim or claims in the case and asks the court to provide an enforceable remedy.  The complaint gives notice to the defendants as to what is at issue in the case, and provides a context for answering and defending against the claim.

The answer is the response to the complaint.  It may admit some of the allegations, deny others, or offer no knowledge of their truthfulness.  The answer may offer defenses and may also state a counterclaim.  Pleadings give all of the parties and the court notice of the claim, the law that supports or defeats that claim, and the respective positions of the parties with regard to the claim.

Preliminary Considerations

Before drafting the complaint, counsel should consider theories of liability, elements of the cause of action, and remedies available given the facts presented.

Court rules generally require short, plain statements in the allegations.  It is plaintiff’s counsel who must clearly allege facts that support a claim against the defendant.

The complaint may be drafted with multiple counts stating the respective issues and relief requested.  

It is important to investigate the applicable statute of limitations period because the case will be dismissed if the complaint is filed too late. 

Jurisdiction is an issue that will determine where to file a complaint.  Review court rules and/or applicable statutes to determine proper jurisdiction.

 

Elements of a Pleading -- The Caption

The common elements consist of the names of the parties and their status (plaintiff, defendant, etc.), the court in which the case is to be tried, and the docket number.  The initial complaint will not have a docket number until one is assigned by the clerk’s office at the time of filing. 

Review the applicable court rules for additional requirements:

  • The Illinois Supreme Court Rules 101 through 138  cover captions depending on the type of action that is filed.  
  • Federal Rule of Civil Procedure 10 describes the form of pleadings in federal courts generally.
  • Local rule 5.2 of the Northern District of Illinois describes the form of documents that are filed there.  

Elements of a Pleading -- Counts

Each count in a complaint is identified as to its nature (Count I – Negligence, etc.).  Each allegation within an individual count is numbered.  State codes of civil procedure allow plaintiffs to plead as many of the claims has they have against the defendant(s). 

Here is an example from the Illinois Code of Civil Procedure:

(735 ILCS 5/2-613)

Sec. 2-613. Separate counts and defenses.

(a) Parties may plead as many causes of action, counterclaims, defenses, and matters in reply as they may have, and each shall be separately designated and numbered.

(b) When a party is in doubt as to which of two or more statements of fact is true, he or she may, regardless of consistency, state them in the alternative or hypothetically in the same or different counts or defenses. 

A fact alleged as an element that is common to multiple claims need only be alleged once and may be incorporated by reference in subsequent counts.  This is done by making a statement at the beginning of each subsequent count explicitly identifying which previously alleged material is incorporated within it.  

Prayer for Relief

The “Prayer for Relief” appears at the end of the complaint and is usually identified by those words.  It contains the remedies the plaintiff is requesting the court to grant. 

These may include a request for money damages; an injunction; restitution; reasonable attorney’s fees and costs; or other relief authorized by the cause of action.  There is usually a general request which asks the court to grant “other and further relief as the Court deems just and equitable.”    

The answer to a complaint may also contain a prayer for relief. 

These may include a denial of the plaintiff’s prayer in the complaint; a request to the court to dismiss the case; and attorney’s fees; or specific relief on the basis of a counter-claim(s).  A request for attorney’s fees should identify the statute that authorizes the fees by citation.

Verification

Pleadings need to be signed by the party or the attorney of record.  They need not be verified unless required by a statute or rule that forms the basis of the cause of action. 

 

Statutes and Court Rules That Affect the Drafting Process

Every state has a code of civil procedure and a set of rules that governs state courts. 

  • A statute, may require a complaint be filed to initiate a civil action. 
  • A court rule will detail the form and content of a complaint. 
  • Local court rules act as operating procedures for that specific court.  

State court systems are typically divided into subdivisions based on subject, the type of relief the grant, or the amount claimed. 

  • Probate court, handles estates. 
  • Family court handles divorce and child custody. 
  • Small claims court hears claims that are worth less than a certain amount. 
  • There may also be divisions between district and circuit courts depending on the amount of relief sought.

It’s up to counsel to know which court is appropriate for the subject and relief sought.

Sections within Title 28 of the United States Code will define the jurisdictional elements that are necessary for filing a case in the federal District Courts.   

The Federal Rules of Civil Procedure govern litigation in federal courts.  Pleadings are referenced in Rules 7 through 12.  There may be local district court rules defining their operating procedures. 

 

Fact Pleading vs. Notice Pleading

Courts generally require plaintiffs to use one of two methods to express a cause of action via the complaint.  These are fact pleading and notice pleading. 

Many states use fact pleading, which requires plaintiffs to plead all facts supporting the cause or causes of action.  Discovery is then narrowed to the issues raised by the facts.

The federal courts use the more relaxed standard of notice pleading.  The Federal Rules of Civil Procedure, specifically Rule 8(a) requires that a complaint to set forth “a short and plain statement of the claim showing that the pleader is entitled to relief.” This allows the court and parties to broaden discovery.

Federal Rule 12(e) allows for the defendant to file a motion for a more definite statement when the complaint is too vague.  The motion must be filed before filing a responsive pleading (the answer).  The alternative to attacking a complaint is to file a 12(b)(6) motion to dismiss for failure to state a claim upon which relief can be granted.  

 

The Use of Form Books and Official Forms

A form book generally contains templates to assist counsel in drafting legal documents.  There are major book sets that are devoted to litigation, including complaints.  Some of the titles include:

  • AmJur Pleading and Practice Forms Annotated​
  • West’s Federal Forms
  • Bender’s Federal Practice Forms

Many states will provide forms through a court’s official website or via practice guides such as IICLE in Illinois.

Drafting Answers

The defendant may have procedural options prior to filing an answer to the complaint.  These may include motions to dismiss the complaint for failure to state a claim, a motion to strike parts of the claim, objections to jurisdiction, or an attempt to remove the case to a different court among others.  

The answer should mirror the complaint as much as possible including the caption.  The answer should be organized and numbered in reference to the counts and allegations of the complaint.  There should be a denial that the plaintiff is entitled to the relief sought and a request for defendant’s costs. The answer should raise any affirmative defenses that are available.  An affirmative defense are facts asserted by the defendant that will defeat the plaintiff’s claim even assuming that the allegations in the complaint are true. 

 

 

Addressing Allegations

The defendant should admit factual allegations he knows to be true. 

The defendant should deny factual allegations he knows to be false.

If the defendant lacks sufficient knowledge to admit or deny factual allegations he should respond that way.

Counterclaims

The defendant may also raise any counterclaims against the plaintiff as part of the answer.  Counterclaims are those claims that the defendant may have against the plaintiff arising out of the same set of facts.  The counterclaim should follow the responses to the allegations and affirmative defenses.  Stating a counterclaim in the answer generally follows the same rules for pleading that apply to a complaint.  A counterclaim will require a response from the plaintiff as to the allegations contained in the counterclaim.

Third Party Complaints

Third party complaints are appropriate in circumstances when there is a party who is not listed as a defendant in the initial complaint but who may be liable for all or part of the plaintiff’s claim.  In this situation, a defendant will file a third party complaint (for example when a sub-contractor is responsible). 

Amendments

Amending a complaint to add counts or parties is usually within the discretion of the court based on court rules and also the effect on the defendant.

Resources

​AmJur Pleading and Practice Forms - Law Reference Stacks KF8836 .A43

West's Federal Forms - Law Reference Stacks KF8836 .W482

Illinois Causes of Action : Tort Actions - Law Reserve Stacks KFI1395 I45 

Illinois Causes of Action: Estate, Business & Nonpersonal Injury Actions - Law Reserve Stacks KFI1730.I46 

Callaghan's Illinois Civil Practice Forms - Law Reference Stacks KFI1730.A65 C55

Nichols Illinois Civil Practice with Forms - Law Reference Stacks KFI1730.N53