Newspaper article THE JOURNAL RECORD

New State Pleading Code Shifts Burden of Proof to Defense

Newspaper article THE JOURNAL RECORD

New State Pleading Code Shifts Burden of Proof to Defense

Article excerpt

Oklahoma's new pleading code, as it applies to the state court system, has shifted much of the burden of proof to the side of the defense.

In cutting down the amount of information required in a plaintiff's petition, the defendant is forced to spend a lot of money and the attorney a lot of time in the discovery process in order to determine the exact details of the charges, according to District Judge David M. Cook.

The Oklahoma Pleading Code, effective Nov. 1, 1984, was patterned after federal rules and collects and centralizes pleadings in the statutes.

"It was again, the Legislature acting pursuant to requests of the legal profession to adopt federal rules of civil procedure," said Cook.

"Federal courts seem to pioneer reform in procedure. This is another example."

The new code has both disadvantages and advantages. Though it places more burden on the defendant, the cumbersome pleadings resulted in a delay and "legal game playing," placing too much emphasis on strategy rather than on a prompt settlement of the dispute, Cook said.

"Under the old system, they're forced to consider strategy. Strategy was more important than substance. Form was more important than substance," he said.

In many instances, the defense has simply filed for a motion of summary judgment in an attempt to educate the judge on the facts of the case, and in substitution of motions excluded from the code.

If the motions are unfounded, they are not well taken by the bench.

Filing an action in district court today is very simple - too simple, Cook said.

Federal rules of procedure adopted by the state courts promote a more general, relaxed pleading standard.

"The principle prevails that if there is a valid claim, let the petition or action be heard after use of discovery and proper pre-trial procedure," Cook said.

The principal advantage is found in the form of the petition.

By streamlining the procedure, the plaintiff's attorney only has to include a short statement of the claim showing the plaintiff is entitled to relief and the demand for relief.

It has for the most part eliminated dramatic petitions loaded with sometimes biased information used to persuade the judge and jury early in the case.

Historically, pleadings were read to the jury at the first trial. It was the first opportunity to state the case. As the courts pulled away from that practice, it seemed more practical to establisha code conforming with federal procedures.

The new code also allowed elimination of causes of action, facts, conclusions of law and ultimate facts, Cook said.

The disadvantage is that it forces the defendant "to go to the time, trouble and expense to find out what the claim is all about," Cook said

Although much of the explanation is no longer required in the petition, Cook said a good pleader will still include it. Lengthy petitions are not forbidden.

Oklahoma City Attorney Larry Tawwater disagreed that streamlining procedures had worked to the disadvantage of the defendants.

"I don't see considerably more discovery than we had anyway," Tawwater said, adding that discovery has always been used extensively by both sides. …

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