PLEADING

I. HISTORY AND GENERAL PRINCIPLES

A. Three forms: Pleading evolved through three major forms:

1. common law, which is of largely historical interest;

2. codes, which are still in effect in a number of states; and

3. the Federal Rules, which are imitated in an increasing majority of jurisdictions.

B. Three purposes: Each of these three forms of pleading was or is characterized by a distinct overall purpose:

1. Common law: The object of pleading at common law was to formulate the issues for trial.

2. Codes: Pleading under the codes was/is designed to reveal the underlying facts on which the claim rested.

3. Federal Rules: The primary purpose of federal pleading is to give notice of the claim (or defense) to the adversary, so that he may make effective discovery requests and trial preparation.

II. MODERN FEDERAL PLEADING GENERALLY

A. Purpose: The guiding principle of pleading under the Federal Rules is that the pleadings should give notice to all parties of the nature of the lawsuit, sufficient to allow the other parties to make pre-trial and trial preparation.

1. Functions of pleadings revised: At common law, and to some extent under the Codes, pleadings served a number of functions: (1) stating the facts underlying the case; (2) formulating the issues for trial; (3) weeding out sham claims; and (4) notifying the parties so that they could prepare for trial. The first three of these functions are not performed primarily by the pleadings under the Federal Rules:

a. Fact stating: The setting out of the facts underlying the claim is now mainly accomplished by the use of extensive discovery procedures, which compel each side to state the facts of the case as it believes them to be. (But some recitation of the factual allegations must still be done by the complaint, or else the complaint may be dismissed for failure to state a claim.)

b. Definition of issues: Issues are mainly defined through discovery, and also through the pre-trial conference—Rule 16 provides for such a conference to consider, among other things, “simplifying the issues.”

c. Sham claims: Meritless claims are now disposed of primarily through summary judgment under Rule 56. This is a more effective means of rejecting unmerited claims, since not only affidavits, but also all the fruits of discovery, may be introduced at the hearing on the summary judgment motion.