Deck 4: Drafting the Complaint

Question 1

What is the federal and your state rule on joinder of parties in a lawsuit?

Answer 1

Joinder is Federal Rule 19. State rule numbers will vary.

Question 2

For your systems folder, research the elements of the following causes of action for reference in preparing complaints for your supervising attorney:

Answer 2

a. Anticipatory breach of contract
• Existence of a contract;
• The actions of the defendants which caused the anticipatory breach;
• That these actions happened before the time of performance of the contract;
• That the plaintiff has performed his duties under the contract; and
• That plaintiff has been injured by the actions of the defendant. b. Specific performance (Construction case)
• That the plaintiff has performed his or her duties under the contract;
• That the defendant has failed to perform his or her duties under the contract; and
• That the plaintiff has an inadequate remedy at law. This means that an award of money will not compensate the plaintiff for the damages suffered. It is this element that separates a cause of action for specific performance from a cause of action for breach of contract.
c. Unfair competition
• The plaintiff must be engaged in a business affected by the interference of the defendant;
• The defendant must have engaged in improper conduct, an unlawful, unfair, or fraudulent business practice or have been engaged in unfair, untrue, or misleading advertising; and
• Defendant's conduct must have resulted in injury to the plaintiff. d. Discrimination case (racial, age, and religion)
Establish that individual is a member of protected class; that he or she was performing job satisfactorily; that he or she suffered adverse action; and that he or she was replaced by someone with equivalent qualifications.
e. Wrongful termination of employment
In any negligent tort, the following elements must be pled:
• The existence of a duty owed by the defendant to the plaintiff (There is no hard and fast rule for determining the existence of a duty. The general rule is the question: how would a "reasonable" person have acted in the role of the defendant? If this reasonable person would have performed differently than the defendant and would have taken steps to prevent or lessen the injury suffered by the plaintiff, then a duty exists for the defendant to act in the same manner.)
• Breach of the duty
• Plaintiff suffered an injury caused by defendant's breach of duty f. Medical malpractice
Same general elements as wrongful termination g. Legal malpractice
Same general elements as wrongful termination

Question 3

What does it mean to have multiple counts in a complaint? Should there be a "wherefore" clause in each count? What is the proper method of incorporating paragraphs of one count into another?

Answer 3

Multiple counts usually means multiple causes of action. Normally each count will have a wherefore clause. The proper way to incorporate each count is by incorporating by reference all the previous paragraphs in the first paragraph of each new count.

Question 4

What are damages and what is the difference between general and special damages? Which must be alleged with particularity (applicable rule)? What are noneconomic damages?

Question 5

What ethical consideration must a paralegal keep in mind when drafting a complaint? Cite the disciplinary rule.

Question 6

What are the minimum requirements in order for a person to be eligible to sue or be sued? What happens when a person has grounds for a lawsuit but does not have the legal capacity to sue?

Question 7

Following class discussion on drafting complaints, especially regarding state court rules, complete the state and systems folder reference blanks in the System Checklist for Drafting a Complaint, and place it in your systems folder.

Question 8

Why is venue important to the drafter of a complaint? When venue must be alleged, what specifically needs to be included?

Question 9

Research the rules of civil procedure for your state for the recommended caption form. If the rules of your state do not have sample forms, go to a book on forms for civil action in your state. Place a copy of the state caption form with copies of the captions from the text at the beginning of the complaint section of your systems folder. Also list the applicable rules and forms. Note any state rules or policy regarding the redaction of privacy information.

Question 10

What is the difference between fact pleading and notice pleading? What federal and state rules set out guidelines for pleading?

Question 11

Describe the various sections of a complaint, their contents, and the functions of each section.

Question 12

What is a syllogism? A major and minor premise? How can it be useful to the drafter of a complaint?

Question 13

What does an attorney certify in signing a complaint where verification is not required?

Question 14

What is the purpose of an appendix to a complaint? What is the proper way to reference either an exhibit or an appendix?

Question 15

What role do jurisdictional amounts play in both federal and state courts?

Question 16

What is the difference, if any, between a prayer for relief, a demand for judgment, and the
"wherefore" clause?

Question 17

Check the pleading rules of your own state. Gather examples of local complaints by researching recent editions of legal forms and pleading books, or obtain them from your instructor. Try to locate a full range of examples of complaints that include pleading in the alternative, pleading in the hypothetical,
joined parties, and joined claims and counts. Place them in your systems folder. Add references to the page numbers in this text where samples of specific types of complaints can be located. Add references to or copies of injunction and restraining order forms.

Question 18

What are the necessary components of an adequate jurisdictional allegation?

Question 19

Review the federal rule on class action lawsuits. Prepare a general outline of the required allegations for a class action suit.

Question 20

What are class actions and in what ways can they be beneficial?

Question 21

What should a paralegal do to be sure that a claim is properly alleged in a particular jurisdiction?

Question 22

List and give examples of four types of remedies typically sought by plaintiffs in civil litigation.

Question 23

List the five suggested references on good legal writing and add them to your systems folder.

Question 24

What is the proper procedure for notarizing a verification?

Question 25

Your attorney is not sure whether she wants to file the Forrester matter in state court or federal court. Prepare a memorandum using your state and federal case law to determine what options are available in deciding in which court to file the complaint.

Question 26

What must a paralegal keep in mind regarding a demand for a jury trial? What federal rule applies?

Question 27

What is the relationship between due process and a complaint?

Question 28

Determine your jurisdiction's requirements for demanding a jury trial in a civil complaint.
Summarize the requirements and place in your systems folder.

Question 29

Describe and define the other common forms of relief: recovery of property, injunction, and specific performance.

Question 30

What factors are used to determine whether punitive damages are reasonable?

Question 31

Micky Speer has contracted with hall of fame trainer Eddie Fast to train Mr. Fix, a racehorse, for the Kentucky Derby. Fast resigns on April 6, a month before the race, in a dispute over fringe benefits. To force Fast to train his horse through the race of a lifetime, Speer sues for specific performance. What are the elements of a cause of action for specific performance? Prepare a complaint that Mr. Speer intends to file against Eddie Fast. (Be creative.)

Question 32

Your boss is an avid baseball fan and cannot believe his luck. In walks Johnny Vance who was injured when he was at the Kansas City Royals game. He tells your boss, Bernard Roberts, that while watching a Royals game, the mascot, Sluggerr, tossed a hotdog at him and injured him. He wants to sue the Kansas City Royals organization and your attorney has asked you to prepare the complaint. Refer to Coomer v. Kansas City Royals Baseball Organization, 437 S.W. 3d 184 (Mo.
2014) for a synopsis of the facts and create your own complaint with possible causes of actions.

Question 33

For an adequate allegation of a claim, what must a paralegal know about the legal basis of such a claim?

Question 34

How can a paralegal determine the extent of facts to allege in a fact-pleading jurisdiction?

Question 35

Find out how to prepare and draft the caption for a civil claim in both your federal and state courts.
Note any differences and place in your systems folder.

Question 36

Why is jurisdiction important to the drafter of a complaint?

Question 37

While attending a football game, Harry Crane was filmed by the network television cameras sleeping during the game. This broadcast was watched by millions of people as it was one of the play-off games. During the broadcast, the commentators focused on Harry and said that he was a slovenly character who was in a stupor during the one biggest games of the year. The commentators continued to broadcast that Harry was so bored that he had nothing better to do than sleep through the game. They said that he looked like he had "way too much beer and pizza" based on appearance. Harry is furious and says his reputation has been ruined. He was tired from some medication he was taking and did not appreciate the national attention he received. He wants to sue the National Football League for defamation, intentional infliction of emotional distress, damages, and exemplary damages for the intentional acts of the League's announcers. Research the elements of the causes of action that Harry wants to advance and determine whether Harry has a legitimate claim against the NFL. Prepare a memorandum with your findings to your supervising attorney. (Based on Rector v. MLB, ESPN New York.)

Question 38

What is procedural due process of law?

Question 39

Review the guidelines and techniques for drafting the body of the complaint.

Question 40

What caption information might be restricted to protect the privacy of the parties?

Question 41

It's best to avoid the archaic language found in some legal forms when you draft documents.

Question 42

Ms. Schnabel is a real party in interest in the Forrester case.

Question 43

When filing a complaint or other document electronically, the signature should also include the statement "electronically filed."

Question 44

Find examples of prayers for relief that request exemplary damages, specific performance, and an injunction. Identify the elements that need to be proven for these remedies and add the information to your systems folder.

Question 45

A complaint is the formal introduction of a lawsuit.

Question 46

Jurisdictional amount must be alleged in federal question complaints.

Question 47

Should an insurance company have to pay exemplary damages on behalf of the insured? State arguments for and against.

Question 48

Determine the federal requirements for filing a discrimination case. Place the information in your systems folder for future review.

Question 49

Draft the discrimination complaint for the Rakowski v. Montez Contraction Co. case (Case V in Chapter 1).
Research what Darlene Rakowski should do in preparing to file a discrimination/harassment case against Montez Construction Co. Find examples of complaints in cases with similar facts to the Rakowski case or locate form books to assist in preparing the complaint.

Question 50

Draft both a fact and a notice complaint for the Briar Patch Dolls, Inc. case (Case IV in Chapter 1).
Find examples of contract cases with similar facts to the Briar Patch Dolls case or locate form books to assist in preparing the complaints.

Question 51

What is required for ability to sue or be sued?

A) Capacity
B) Domicile
C) Real party in interest
D) Both a and c
E) All of the above

Question 52

A poorly drafted complaint can cause all of the following except

A) delay.
B) injunction.
C) negative impressions.
D) dismissal.

Question 53

What 2003 U.S. Supreme Court case reaffirmed the principle that punitive damages must be reasonable to be constitutional? What is the constitutional concept applied, and what key factors determine the reasonability of punitive damages?

Question 54

Using the checklist and examples in the text, draft a complaint for Sean Coleman (Case III in Chapter 1) to be filed in your United States District Court District alleging diversity jurisdiction. Place copies of the federal (notice) complaint into your systems folder. Assume that Coleman resides in a state other than your home state.

Question 55

List and give examples of four types of remedies typically sought by plaintiffs in civil litigation.

Question 56

What Federal Rules of Civil Procedure cover notice pleading requirements? Compare and contrast fact (code) pleading with notice pleading.

Question 57

What are the federal court privacy restrictions governing redactions of Social Security numbers, names of minors, birth dates, and addresses? What federal rule governs this after Dec. 2007?

Question 58

Briar Patch Dolls (Case IV) does most of its business in Colombia, where Teeny Tiny Manufacturing is located, but federal diversity exists because Briar Patch is incorporated in Ohio.

Question 59

Pleadings include

A) cross-claims.
B) memoranda.
C) motions.
D) evidence.

Question 60

A guardian ad litem permits suit when

A) a corporation is a party.
B) there is no interpleader.
C) there is a lack of capacity.
D) multiple parties are joined.

Question 61

Requirements for class action suits include all of the following except

A) the action of the adverse party is inconsistent toward members of the class.
B) the members of the class are too numerous for joinder.
C) the representative will protect the interests of the class.
D) there are common questions of law and fact.

Question 62

Why are the subscription and verification of a complaint important?

Question 63

List four ways that related claims are handled to save costs and time, and their pertinent Federal
Rules of Civil Procedure.

Question 64

Money sought as punishment for malicious conduct is

A) special damages.
B) specific performance
C) exemplary damages.
D) prohibitory injunctions.

Question 65

How are separate claims stated in a complaint?

Question 66

Pain and suffering and emotional distress are included in damages.

A) mandatory
B) noneconomic
C) exemplary
D) special

Question 67

Why must jurisdiction always be alleged in federal courts but not all state courts?

Question 68

(A) Why can the caption of Case IV read Briar Patch Dolls, Inc. v. Teeny Tiny
Manufacturing Co. rather than Heinz v. Smith and McGinnis? (B) If Teeny Tiny were owned solely by Ethel Meyers, now deceased, could Briar Patch still sue? Why or why not?

Question 69

Why is it necessary to research local practice in drafting complaints in a particular state jurisdiction?

Question 70

Adequately stating a cause of action in a particular jurisdiction requires research into all of the following except

A) local court rules of procedure.
B) case law applicable to that court.
C) the Federal Rules of Civil Procedure.
D) successful pleadings previously filed in that court.

Question 71

Demand for jury trial should

A) be postponed until the beginning of trial.
B) be made within 30 days of service of the last pleading.
C) always be included in the complaint.
D) be conspicuous.

Question 72

What do pleadings have to do with our right to due process?

Question 73

What information must be presented to allege jurisdiction in a state court?

Question 74

A wherefore clause states the

A) demand for relief.
B) cause of action.
C) elements of law.
D) counterclaim.

Question 75

What other documents might be attached to a complaint, and for what purposes?

Question 76

Language in the complaint needs to

A) prove the plaintiff's case.
B) be assertive.
C) address possible defenses.
D) state the law.

Question 77

Fact (code) pleading

A) is used in federal courts.
B) is simple and requires no technical forms.
C) is used in all state courts.
D) must support each element of the rule of law.

Question 78

Why does venue not have to be alleged in complaints in federal court?

Question 79

In filing legal documents, procedures regarding protection of personal privacy information are determined by

A) the ABA rules on e-filing.
B) the format chosen by the opponent.
C) the attorney filing the document.
D) federal court policy.

Question 80

Appendices to complaints usually include

A) contracts.
B) explanatory material.
C) bills of lading.
D) motions to dismiss.