The Devil in the Details

Judicature, September/October 2007 | Go to article overview

The Devil in the Details


A recent decision of the United States Supreme Court on pleading requirements is disturbing because of its potential impact on access to court.

A recent Supreme Court decision on pleading may close the courthouse to people who previously were able to sue, We believe that the policy questions should have been addressed in the more transparent and democratic process of rulemaking, where they would have been subject to public comment and to congressional review.

Pleading is the process by which civil litigants inform each other and the court of the claims and defenses on which they rely. Rules regulating how specific pleadings must be have their greatest impact on those who seek to disturb the status quo by initiating litigation-plaintiffs. The level of factual specificity that a legal system requires of plaintiffs attempting to state a claim depends on the role the system wants pleading to play in litigation, the role it wants litigation to play in social ordering, and, ultimately, on its level of attachment to the status quo. Pleading rules may seem technical, but in their details repose fundamental questions about access to court.

The Supreme Court promulgated the original Federal Rules of Civil Procedure in late 1937, and after review by Congress, they became effective in 1938. The members of the Advisory Committee who wrote these rules rejected mandatory factual specificity in pleading except in a few designated categories of cases (e.g., those alleging fraud or mistake). Rule 8(a) (2) requires "a short and plain statement of the claim showing that the pleader is entitled to relief-not, as in prior systems, all facts necessary to constitute the claim. Their reasons for rejecting fact pleading (and embracing "notice pleading") were of two quite different orders.

First, experience had demonstrated the wastefulness of decisions ruling on the sufficiency of complaints by attempting to distinguish "facts" from "legal conclusions" and "evidence." More fundamentally, the drafters of the Federal Rules believed that, in a world of increasingly dispersed and anonymous transactions and occurrences, it was unjust to require plaintiffs to have uncovered all of the facts necessary to state a claim before initiating a lawsuit. Convinced that pleading should play a more limited role in litigation, the drafters hoped that liberal discovery methods (e.g., interrogatories, depositions, and document requests) would (1) unearth the facts prior to trial, making trials more efficient, and (2) in conjunction with a liberal rule on amendments to pleadings and with pre-trial procedure, including the motion for summary judgment, enable a more informed and finely tuned elimination (or narrowing) of the issues.

Seventy years of experience with die Federal Rules of Civil Procedure have made it clear that, in focusing on the problem of delay and expense at trial, the framers of those Rules did not foresee the potential costs of notice pleading and broad discovery. As a result, once changes in the larger legal environment created a traffic jam on the litigation highway they had built, their successors sought to refine the original system. Successive amendments to the Federal Rules have relied on sanctions, active judicial management, and narrowed discovery as remedies for costly, meritless litigation. Recent years have also witnessed an invigoration (without rule amendment) of summary judgment. Although the rulemakers have considered amendments to Rule 8 to require greater factual specificity, they have never formally proposed such an amendment. There are good reasons for their forbearance.

First, in 1957, when some members of the federal judiciary advocated an amendment to Rule 8 to require fact pleading, the Supreme Court decided a case ( Conley v. Gibson) with an opinion that soundly rejected an interpretation of the existing rule that would have had that effect. Instead, the Court in Conley embraced anew the procedural philosophy of those who drafted the 1938 rules.

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