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Federal Practice Manual for Legal Aid Attorneys: 4.1.2 Purposes of the Complaint

The complaint has at least five purposes: 1) to commence litigation, 2) to tell a persuasive story to a varied audience, 3) to sufficiently set forth the jurisdictional, factual, and legal bases of the case to avoid or limit the possibility of a motion to dismiss, 4) to enhance the usefulness of the defendant’s answer to the complaint and the ability to obtain useful information though formal and informal discovery and 5) to lay the groundwork for the resolution of the case through settlement.

Federal Practice Manual for Legal Aid Attorneys: 4.1.3 Commencing the Litigation

A civil action commences upon the filing of the complaint with the court clerk.1254 The filing date of the complaint ordinarily determines whether the lawsuit is within the applicable statute of limitations. The date of filing also sets the clock running for other dates, such as the deadline for serving the defendant with the summons and complaint.1255 The date of service then triggers the timing of a series of pretrial procedures.1256

Federal Practice Manual for Legal Aid Attorneys: 4.1.4 Telling the Story

The complaint is the first opportunity that an attorney has to tell the client’s story and to explain why the lawsuit has been filed. It is the first document that will be seen by the judge and law clerks and will be referred to by them repeatedly throughout the case. The complaint may also have an audience in the clients, the defendants, opposing counsel, the public, the media, and other observers.

Federal Practice Manual for Legal Aid Attorneys: 4.1.5 Protection Against Motion to Dismiss

The complaint must be sufficient to survive a motion to dismiss. Your thorough review of the law in the substantive area involved should reveal to you the typical grounds for motions to dismiss and the potential weaknesses in your case. It is helpful to imagine yourself as the associate in the opposing counsel’s firm or office assigned to draft a motion to dismiss your case, thus providing yourself with an opportunity to identify and address your complaint’s weaknesses before you file it.

Federal Practice Manual for Legal Aid Attorneys: 4.1.6 Enhancing Usefulness of the Answer and Discovery

The manner in which the complaint is drafted can enhance the usefulness of the opposing party’s answer and facilitate initial disclosures. The defendant has a duty to answer factual allegations affirmatively and in good faith, and a plaintiff’s factual assertion is deemed admitted by the defendant when not specifically denied in the responsive pleading.1281 Hence, the more specific and defined your factual allegations are, the less “wiggle room” your adversary has to answer those allegations evasively.

Federal Practice Manual for Legal Aid Attorneys: 4.1.7 Basis for Settlement

You will be thinking about settlement from the moment you begin to prepare the litigation. The complaint serves as the basis and framework for settlement throughout the case, especially if prompt settlement is desired or possible. Although there are exceptions when settlement can provide more relief than you can request from the court, in general, the relief portion of the complaint serves as the outside boundaries of what you can request from the defendant in settlement negotiations.

Federal Practice Manual for Legal Aid Attorneys: 4.1.9 Individual, Group, and Class Plaintiffs

The first named plaintiff in a case involving more than one should be the best able to surmount jurisdictional challenges, such as standing and mootness, and most likely to see the case through to conclusion. Frequent changes to the case caption throughout the case can prove confusing. You may also wish the first plaintiff to have a particularly compelling set of facts and to be effective at articulating it publicly. At the same time, the concerns of other named plaintiffs may suggest a neutral ordering system.

Federal Practice Manual for Legal Aid Attorneys: 4.1.11 Pleading Facts and Theories

For the strategic reasons outlined above, the facts should be drafted so that they tell a clear and compelling story guiding the reader to believe in the obvious need for relief. Casting the story in human terms makes it more immediate and, therefore, more compelling. As explained above, this factual presentation must be made in sufficient detail to satisfy the new plausibility standards and should be framed in terms that will resonate with the judge’s experience and common sense. Where possible, refer to the plaintiff by name rather than by legal designation.

Federal Practice Manual for Legal Aid Attorneys: 4.1.12 Framing Relief

The prayer or request for relief is a required part of the complaint. It forms the opening gambit in any negotiations. It acts as the “ceiling” for what you can obtain either in settlement or from the court. It colors the way others, including the court and the defendant, perceive the lawsuit depending on whether they view what you want as reasonable or as overreaching. Thus, how you frame your request for relief is a strategic decision.

Each type of relief you want must be listed. Your requested relief might include the following:

Federal Practice Manual for Legal Aid Attorneys: 4.2.2 Standards for Making Representations to the Court

Rule 11(b) provides that,”[b]y presenting to the court a pleading, written motion, or other paper–whether by signing, filing, submitting, or later advocating it–an attorney or unrepresented party certifies that to the best of the person’s knowledge, information, and belief, formed after an inquiry reasonable under the circumstances” that the material presented is not filed for an improper purpose and has the requisite degree of evidentiary and legal support.1303 This language raises two interpretive questions: what “later advocating” means

Federal Practice Manual for Legal Aid Attorneys: 4.2.3 Sanctions

Rule 11(c) permits, but no longer requires, the court to issue sanctions to attorneys, law firms, or parties in violation of the rule or responsible for the violation.1347 The 1993 amendments made the issuance of sanctions, whether prompted by motion or by the court’s own initiative, discretionary rather than mandatory.1348 The advisory committee’s notes list several factors that the courts should consider in deciding whether to issue a sanction and, if appropriate, the kind of sanction to i

Federal Practice Manual for Legal Aid Attorneys: 4.2.5 The Inherent Power of the Court

The sanctioning power of the federal courts “is not limited to what is enumerated in statutes or in the rules of civil procedure.”1385 Federal courts have the inherent power to punish persons who abuse the judicial process. The inherent power of the court is an “implied power squeezed from the need to make the courts function.”1386 Rule 11 and § 1927 do not displace the court’s inherent power, but instead they exist concurrently.1387

Federal Practice Manual for Legal Aid Attorneys: 4.2.6 Ghostwriting

As increasing numbers of litigants proceed pro se, many lawyers and legal offices offer “unbundled legal services” also known as limited scope representation.1401 Limited representation is permissible if reasonable and the client consents.1402 In such representation, attorneys and clients agree that the attorneys will provide discrete and limited services for the clients as part of the clients’ efforts to represent themselves.

Federal Practice Manual for Legal Aid Attorneys: 4.2.7 Ethical Concerns

Various courts and ethics committees have found the practice of ghostwriting to be in conflict with the duty of candor owed to the court by giving a “false impression of the real state of affairs.”1409 They regard ghostwriting as violating Model Rules of Professional Conduct Rule 3.3(a)(1) (candor to the tribunal) and/or 4.1 (truthfulness in statements to others).

Federal Practice Manual for Legal Aid Attorneys: 4.2.8 Procedural Concerns

Federal courts have been hostile to the practice of ghostwriting, finding that it violates the spirit of Rule 11 by circumventing the attorney’s signature requirement.1418 Courts have specifically interpreted the purpose of Rule 11(a) as requiring attorneys to sign court documents that they prepared “in any substantial part.”1419 However, one court acknowledged that if a ghostwriter no longer represented a litigant when the complaint is filed, the author’s failure to sign a complaint “is not