There are certain things which you should think about before you begin to draft a complaint. If you consider these things in advance it will substantially increase the chances of your complaint surviving a motion to dismiss.
- Understand Your Client.
This may sound elementary. However, it is surprising how many lawyers do not understand who they are representing. Is your client a corporation, a limited liability corporation, or a partnership? Is your client from Florida, California or from China? All of these things factor into the equation of where your lawsuit will be filed.
Who is it from the client that has to authorize the filing of a lawsuit. Is your client a public company? Is board approval required? Do the company’s bylaws have special provisions governing under what circumstances litigation may be commenced? These are all things which the careful lawyer should think about in advance.
- Understand the Defendant.
This is equally important, if not more important, than understanding your client. Who the defendant is will have a substantial impact on what type of lawsuit you file and where you file it. For example, is there diversity of citizenship? Is the plaintiff from one state and the defendant from another? Is the claim for over $75,000 in damages ? If so, you may want to consider filing the Complaint in federal court. If you file in state court, and the claim is over $75,000, you and your client need to be aware of the possibility that the case may be “removed” from state court to federal court. Removal has serious consequences for the progress of the case and ultimate cost.
3. Personal Jurisdiction
If you do not have personal jurisdiction, it is likely that the complaint will be dismissed. In order to have personal jurisdiction over the defendant, you must be able to show, among other things, that the defendant resides in or was doing business in the state in which you choose to sue. If the defendant does not reside in the state in which you choose to sue, consider how you may go about obtaining jurisdiction under the Florida long arm statute. See F. S. §48.193. The specific bases of personal jurisdiction under §48.193 are beyond the scope of this article; however, these are things to be aware of when drafting the complaint. Remember that you are required to plead the basis for long arm jurisdiction in the Complaint.
4. Your Complaint Should Tell a Story
Litigators are, after all, storytellers at heart. What we do is explain our client’s saga in writing and, at appropriate times in front of the judge and jury. There is no reason to wait in order to get the story down pat. You should understand the story before you file the complaint. Try writing it down on a piece of paper, or dictate it before you begin. Make sure there is a beginning, a middle and an end and explain why, and how, your client has been harmed. You would be surprised how many complaints fail to follow this basic formula and are dismissed for that reason.
5. Consider the Causes of Action
Once you understand your client’s story, you should give serious thought to causes of action. Now that you have told the court why your client has been wronged, you need to explain why the law provides a remedy. There is an excellent book called “Florida Causes of Action” which you should review before you draft causes of action for your complaint. http://www.floridalitigationguide.com/. A simple review of the index will also help jog your mind as to what the defendant can be sued for. The book also contains the specific elements necessary to be pleaded in each cause of action. You would be surprised how many plaintiff’s lawyers fail to consult this book and rely, instead, on old forms or from memory. Bad idea. Why be lazy? A simple review of “Florida Causes of Action” significantly decreases the likelihood that your complaint will be dismissed.
6. Pleading with Particularity
Many complaints, particularly those involving fraud, require that the circumstances constituting the fraud be pleaded with “specificity.” You should understand what “specificity” actually means. Most often it means that, if the complaint was based upon false or fraudulent representations made by the defendant, that you identify who made representations, when the representations were made, how your client relied on them, and the dates of the representations, including a specific description of what was said. This will also assist in avoiding an early dismissal of your complaint.
7. Attach Relevant Contracts to your Complaint
It is important to attach the contracts, if any, upon which your client is relying, to the Complaint. It is not necessary to attach every document and email to your complaint as an exhibit. Instead, the Florida Rules of Civil Procedure provide that you should attach copies of the contract upon which your claim is founded. This will assist in giving the defendant notice of what your claim is based upon. It is hard to understand why so many plaintiff’s lawyers fail to do this.
You should also give consideration as to whether the contract which is attached to your complaint is actually consistent with the facts alleged in the complaint. If there is a contradiction, you will get a “Harry Pepper” motion. This motion is designed to dismiss your complaint based upon the fact that your complaint conflicts with the exhibits. By careful drafting, you should be able to avoid this.
The above are just a representative sample of the things that you should consider before filing a complaint. Thinking through the allegations of the complaint in advance, including potential causes of action, jurisdiction and damages, will assist you in obtaining a better outcome.