by George Benaur
Clients sometimes ask why a certain amount of time is spent on drafting and researching this document or that document. There is so much talk out there about how the practice of law (often by those who don’t really practice) is in many ways based on “forms,” so clients naturally start to think that lawyers should become like robots pumping out legal briefs, contracts and other memoranda as efficiently as possible. While this may be possible to do in certain circumstances, clients should not expect a good litigator to rush to court with a pre-packaged complaint, especially in complicated cases, without deliberation and preparation.
Lawyers do have a responsibility to have a good faith basis for filing complaints. Meeting this standard generally requires the lawyer to conduct a reasonable investigation of the facts of the case, the scope of which is different in every case. Collecting the evidence to have a good faith basis for the complaint may take time and clients are advised to be forthright with counsel during this process. Ideally, a good pre-litigation case assessment looks at the good, the bad and the ugly facts, but it can only be done if the client is open about the history of the circumstances at issue during this case assessment phase. To the extent the client wants to minimize fees, it is a good idea to prepare key documents and information before going to speak with the lawyer about it. The clients need to understand that they are investing into putting the case together in order to draft the complaint, just as the lawyer is investing his or her time into it.
There are times, after the investigation is complete, that the correct decision may be not to litigate the case. For example, the legal claims may be weak and unsupported by the evidence, the case may be too expensive to litigate, or it may be too risky to expose the plaintiff to potential counterclaims, or there may be other facts that outweigh the desire to litigate. If the client does decide to proceed with commencing litigation, and there is sufficient basis for it, the complaint should be carefully drafted to maximize chances of victory.
In virtually any type of civil litigation, including personal injury, commercial, bankruptcy, real estate, product liability, employment, contract, securities and others, the complaint is one of the most important documents in case. This document sets forth in writing the factual and legal basis why the plaintiff is entitled to a particular legal remedy (such as an injunction or monetary relief). It will most likely be available to the public and will be the subject of defendant’s attack for the remainder of the case, which can last for years.
The complaint can also be used for pre-litigation alternative dispute resolution purposes. In some cases, for example, it may be possible to send the complaint to the adversary in advance of filing and offer to meet to discuss the case and try to resolve it. An experienced litigator can evaluate the case, and any potential for settlement, once he or she sees the complaint. This document generally shows whether the case can be subject to attack on an early phase motion to dismiss, what type of proofs will be needed in order to win, whether discovery is likely to take a long time or be relatively straightforward, whether experts will be needed to litigate, and other strategic alternatives for how the litigation is likely to proceed. For these reasons, investing into a strong complaint is probably one of the most important steps in the litigation process.