Lawyers are a bunch of complainers.
Allow me to explain.
You see, it all starts with a “complaint,” a lawsuit that is, which I have always found a curious word when applied to what is usually the dignity and erudition of the law. That said, however, I’m not sure what would be a better word: A gripe? A grouse? A grumble, whine or carp?
But here we are — in the lottery of legal history, “complaint” was the clear winner. And so, “complaint” it is.
What, then, is one, and how does one work?
A complaint is a kind of “pleading,” so let’s define that first. Although the term itself sounds a little mealy-mouthed — to “plead,” after all, is not a far cry from beggary — “pleadings” are formal written statement of a party’s claims or defenses. There are as many kinds of pleadings as there are short hairs on the back of a Chihuahua. And the first one, the one that kicks off the whole shootin’ match of litigation, is called a “complaint.” In it, the kicker-offer, known more formally as the “plaintiff,” must state their gripes against the party known as the defendant. Think of the complaint as a spelled-out bag of woes.
A “plaintiff” is a person who brings a case against another in a court of law and is not a far cry from the word “plaintive,” which means to sound a sad and mournful cry. But I digress.
All of the plaintiff’s claims against the defendant are laid out in the complaint. Not only are all the plaintiff’s slights, maligns and beefs against the defendant stated, but the complaint must also state the legal theories under which “relief” should be granted. The plaintiff must specify the remedy she or he wants. However, under generally accepted rules of pleading (known as “notice pleading”), the complaint does not need to be overly specific; it merely has to lay out enough to advise the defendant of what she or he is accused.
Let’s take a step aside and dash quickly down the two rabbit holes of relief and remedies.
“Relief” at law is — whew! — exactly what it sounds like. With the aid of the court, what the plaintiff hopes for is a respite from (or liberation from) the defendant’s wrongful harm or conduct. What the plaintiff spells out in his or her complaint is all they ways they have been injured or aggrieved at the hands of the defendant and what they want the court to do about it.
In law school, whole semesters and textbooks as thick as cored concrete blocks are devoted to the subject of “remedies.” In its simplest terms, a remedy is a form of court enforcement of a legal right resulting from a successful civil lawsuit. Remedies fall into three general categories: damages (monetary compensation for the plaintiff’s losses), coercive remedies requiring a party to do or omit doing a specific act through injunctive relief (a court order to do this or that specific thing) or a court order of specific performance (in contracts, specific performance may be an award of the thing itself that is in dispute rather than its monetary equivalent); and declaratory judgment where the court determines (or “declares”) individual rights in a specific situation without awarding damages or ordering particular action.
Because of their historical origins, monetary damages are often referred to as a “legal” remedy, while coercive and declaratory remedies are termed “equitable” remedies.
Another way to imagine a complaint is to think of it as a fuse that ignites the fireworks of litigation. Once the girandola of the lawsuit is launched skyward, the usual response is for the defendant to file their “answer.”
In Sluggo cartoon character terms, what the answer says is “Oh yeah?! Well, that ain’t so!” The answer details how and why the complaint fails to hold together. There are generally three parts. First, the defendant will admit, deny or deny “on information and belief” each of the plaintiff’s allegations. The first two of these — admit or deny — are pretty intuitive. What the third — denial on information and belief — consist of is a statement to the effect that the defendant lacks sufficient information about the specific allegation and, on that ground, denies it.
The allegations thus disposed of, what comes next are “affirmative defenses.” An “affirmative defense” is a defense that introduces evidence, which, if found to be credible, will negate the defendant’s liability. Even if it is proven that the defendant committed the alleged acts, if the affirmative defense or defenses are found applicable, they will escape culpability.
Sometimes — but certainly not always — the defendant will articulate their own “counterclaims” against the plaintiff. A counterclaim is a claim for relief filed against an opposing party after the original claim is filed. What it says is, “While we’re at it — and now that the plaintiff has kicked this whole thing off — I’ve got some gripes of my own that I need the court’s help in resolving.”
Lastly, the defendant will express their own “prayer” for relief — “this is what the court should do.”
Complaint and answer; however equivocating the language of the tiff may be, thus starts the dance, tactics and strategy of litigation.
Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices Of Counsel in the Vail Valley with the Law Firm of Caplan & Earnest LLC. His practice areas include: business and commercial transactions; real estate and development; family law, custody, and divorce; and civil litigation. Robbins may be reached at 970-926.4461 or rrobbins@CELaw.com. His novels, “How to Raise a Shark (an apocryphal tale)” and “The Stone Minder’s Daughter,” are currently available at Amazon.com, and coming soon, “Why I Walk So Slow.”