Can You Sue Someone In Fifty Words Or Less?
Why Plaintiffs' Lawyers Ignore The Supreme Court's Instructions To Keep Complaints Brief

All lawsuits begin the same way: The plaintiff files a complaint in court. It may be the most important moment of the lawsuit, because if the complaint is not properly pled (legalese for "correctly written"), then the court will dismiss it. To avoid just that result, plaintiffs regularly file thirty-, forty-, and fifty-page complaints. Indeed, a hundred-, five hundred-, or even thousand-page complaint is now far from uncommon.

Last term, in Swierkiewicz v. Sorema N.A., the Supreme Court unanimously explained that lengthy complaints were unnecessary. Indeed, the Court even gave an example of a sufficient complaint: "On June 1, 1936, in a public highway called Boylston Street in Boston, Massachusetts, defendant negligently drove a motor vehicle against plaintiff who was then crossing said highway." That's it - twenty-eight words.

This raises two questions: Why does the Supreme Court dislike lengthy complaints so much? And why are plaintiffs ignoring the Court's model of keeping it short and simple?

From The Common Law, to the Field Codes, to the Federal Rules

Prior to the mid-nineteenth century, courts relied heavily on the parties' "pleadings" - that is, the oral answers and, later, legal papers that set forth their positions. It was believed that by forcing the parties through a maze of proceedings, the court could eventually carve a case down to a single issue on which the entire case would turn.

Unfortunately, that didn't happen. Instead, courts and cases became mired in paper. Resolving the actual dispute between the plaintiff and defendant became slow and expensive. The advent of the pleading was, in the words of one scholar, "the glory of the technician and the shame of the lover of justice."

Widespread public dissatisfaction gave rise to a reform movement. In 1848, New York adopted a set of procedures drafted by David Dudley Field. Other states quickly followed suit.

Under these "Field Codes," the parties were only to develop facts - not arguments - through their pleadings. The New York Code, for example, required every complaint to include: "A statement of the facts constituting the cause of action, in ordinary and concise language, without repetition, and in such a manner as to enable a person of common understanding to know what is intended." At the same time, plaintiffs only had to plead "ultimate facts" (those necessary to establish a legal claim) - not evidence or legal conclusions

Courts issued conflicting opinions. Once again, plaintiffs and defendants fought "paper wars" with each other and whether a complaint survived turned on hyper-technicalities invented by the courts. Resolving disputes thus remained slow, expensive, and arbitrary.

Then, in 1938, the then-controversial Federal Rules of Civil Procedure were enacted. These rules still control procedure in federal court, and have been copied by a majority of the states.

The goal of the new system was clear. Rule 1 instructed courts to interpret the Rules so as "to secure the just, speedy, and inexpensive determination of every action." The drafters recognized that relying on pleadings was anathema to this goal, so pleadings were to be kept to a bare minimum.

Under Rule 8, a complaint was to be composed of "(1) a short and plain statement of the grounds upon which the court's jurisdiction depends, unless the court already has jurisdiction and the claim needs no new grounds of jurisdiction to support it, (2) a short and plain statement of the claim showing that the pleader is entitled to relief, and (3) a demand for judgment for the relief the pleader seeks."

The Appendix of Forms even gave examples of complaints that, as Rule 84 explains, are "sufficient under the rules and . . . intended to indicate the simplicity and brevity of statement which the rules contemplate." For instance, apart from the jurisdictional statement, a "Complaint for Money Lent" could simply say, "Defendant owes plaintiff _____ dollars for money lent by plaintiff to defendant on June 1, 1936. Wherefore plaintiff demands judgment against defendant for the sum of _____ dollars, interest, and costs."

In asking for a "statement of the claim," the Rules avoided the facts/evidence/law distinctions that had previously bogged down the courts. The new system of pleading was only intended to tell the defendant what kind of claims were being brought against him - all that fairness initially required (usually referred to today as "notice pleading").

If the defendant didn't understand the claims being brought against him because it was "so vague or ambiguous," then he could "move for a more definite statement" under Rule 12(e) and "point out the defects complained of and the details desired."

The parties would develop their facts and narrow the issues with the "discovery" of evidence - through interrogatories, subpoenas, depositions, and the like. Trial courts could prevent discovery abuse under Rule 16, which gave them the power to "take appropriate action . . . as may facilitate the just, speedy, and inexpensive disposition of the action." Courts would eliminate meritless claims by granting the defendant "summary judgment," under Rule 56, and frivolous actions would be deterred with sanctions under Rule 11.

In Swierkiewicz, then, the Supreme Court was only following the plain language and original intent of the Federal Rules in holding that Swierkiewicz's complaint was sufficient. Its example of a complaint for negligence was taken straight from the federal rules themselves (Form 9 in the appendix).

Why Plaintiffs' Lawyers Still File Lengthy Complaints

So why haven't plaintiffs - or, more realistically, plaintiffs' attorneys - taken this thrice-repeated instruction from the highest court in the land?

The answer is that, in practice, the lower federal courts have betrayed their own Federal Rules and Supreme Court by requiring far more than notice pleading.

For instance, the U.S. Court of Appeals for the Fourth Circuit, in Iodice v. United States, recently dismissed a complaint because the plaintiff "failed to allege facts sufficient to state elements of such a claim." (Emphasis in original.) It even cited Swierkiewicz in support of this proposition - despite that decision's emphasis on the modern system of notice - not fact - pleading.

In light of decisions such as Iodice, it is safer, and more prudent, for plaintiffs' lawyers to file lengthy complaints. They are highly unlikely to be sanctioned for doing so. And the consequences of filing a brief complaint, even if it is plainly sufficient under the Rules and the Supreme Court decisions, can be serious.

A lower court judge looking for a more detailed complaint may dismiss the case. If the plaintiff wants to continue the case, she must file an amended complaint complying with the court's order.

Indeed, ire might even cause the judge to dismiss the case with prejudice, meaning there can be no refilling of an amended complaint. If that occurs, the plaintiff must appeal the decision, which will only cost her more money and impose further delay.

Should the plaintiff and her attorney find herself before an appellate court such as the one in Iodice, the court will merely affirm the dismissal of the complaint. Given that the Supreme Court only considers around 80 cases a year, it is almost a guarantee that the case will come to an end once the appellate court issues its decision.

A one or two page complaint may be ideal from the perspective of the Rules - the Supreme Court has held as much. But this makes little difference from the perspective of a plaintiff's lawyer if the lower courts are unwilling to follow the Court's decisions.

Why We Need to Return to a True System of Notice Pleading

It would be an overstatement to say we have completely returned to the pleading requirements of the Field Code, or the common law before it - and entered into yet another cycle in which reform is imposed, undermined, and then re-imposed. Yet, given the lower courts' resistance to following the Federal Rules and the Supreme Court's decision, we are not so far removed from that cycle either.

A recent, well-publicized case proves the point. In an August 2002 complaint in the case of Pelman v. McDonald's, the plaintiffs alleged that McDonald's violated various state laws by failing to adequately disclose the ingredients and health effects of its food.

The plaintiffs filed a nine-page complaint alleging five claims against McDonald's under New York law. For example, the first claim alleged that McDonalds violated New York state law by failing to adequately disclose the ingredients and health effects of eating its food and by describing its food as "nutritious." In October 2002, McDonald's moved to dismiss the complaint.

The parties filed briefs (typically, three briefs are filed, 25-pages in support of the motion, 25-pages in opposition, and 10 pages in reply). The judge then issued a 65-page opinion dismissing the complaint without prejudice. The plaintiffs subsequently filed a 48-page amended complaint.

Consider the tally:

Total pages consumed: Up to 173. Total labor and expense for the court and parties: Huge. Total time passed: Almost a year.

Total new facts learned: 0. Total progress in the plaintiffs' case: 0.

Now McDonald's will probably move to dismiss again, leading to hundreds of pages of legal analysis and another year of wasted time - exactly what the Rules were trying to prevent.

(In fact, the judge who dismissed the complaint did an even better job than the plaintiffs of describing the claims in a short and plain fashion. On pages 13-14 of his opinion, the judge uses 247 words to summarize the plaintiff's five claims - and no reasonable person who reads those words can say that he doesn't understand the lawsuit.)

At the same time, one might ask whether the complaint against McDonald's has any merit. There is a real possibility that it does not, although it should be emphasized that we don't know the facts precisely because we are still at the pleading stage. Accordingly, it might be wise for the judge to keep a tight control on discovery, perhaps proceeding in stages, and then allow McDonald's to file an expedited summary judgment motion at the end of the first stage.

But to allow, indeed encourage, the parties to file lengthy complaints and have them argue over whether they provided enough facts and law to support the complaint contradicts the text and purpose of the Federal Rules.

Moreover, Pelman is not an anomaly. In case after case, plaintiffs file lengthy complaints and the lower courts entertain defendants' motions to dismiss for failure to properly plead the claims. To take another high-profile example, lawyers for the employees of Enron filed a 303-page complaint against the company and its executives alleging that they violated the federal laws of RICO (the Racketeer Influenced and Corrupt Organizations Act) and ERISA (Employee Retirement Income Security Act) as well as Texas state law prohibiting conspiracy and negligence.

Various defendants then filed at least ten motions to dismiss for failure to properly plead the complaint, each motion requiring arguments and briefings by all of the parties. This complaint against Enron was filed in April 2002, and the judge has yet to issue a decision. (Meanwhile, in a companion lawsuit for violations of securities laws, the judge did issue an opinion - a whopping 305-pages long.)

The Federal Rules and the Supreme Court have made it clear that complaints should be short and simple. Cases should be decided on the evidence, not the pleadings.

So long as the lower courts ignore the Supreme Court, they will continue to be buried under the very avalanche of paper from which the Federal Rules tried to free them, and the determinations of our disputes will not be just, speedy, or inexpensive.