The Fine Art of Drafting Pleadings

Publication Source: New York Law Journal

I had the rare fortune of playing the role of fly on the wall when I recently appeared in chambers in the Nassau Supreme Court Commercial Part on behalf of a non-party, where, in the comfort of a spectator’s box, I was able to observe counsel for plaintiff and defendants duking it out over motions to dismiss and injunctive relief. The case involved a dispute among participants in a long-standing real estate investment and development enterprise. The attorneys on both sides were seasoned commercial litigators from respected law firms, one based in Manhattan and the other in Nassau County.

Before addressing the substance of the issues arising from the motions, the Court chided plaintiff’s counsel for needlessly complicating the allegations of the complaint by inserting several factual assertions into each paragraph, thereby making it difficult for the Court to identify what the defendants admitted and what was in dispute. Before defense counsel could relish in the Court’s displeasure with plaintiff’s counsel, the Court then turned to defendants’ attorney and noted that the counterclaims suffered from the same malady. What happened, the Court pondered aloud, to the rule that each factual allegation of a pleading should be set out in separately numbered paragraphs?

In their quest to “tell the story” in their complaints, some litigators turn themselves into novelists, crafting complex storylines and packing paragraphs with intricate facts and details. Others apparently feel compelled to follow their English teachers’ admonition that good paragraph structure requires a topic sentence, supporting sentences and a concluding sentence.

The Court’s observation above is one of those refreshing wake up calls that can invigorate the minds of seasoned litigators (or afford guidance to those on the ground level) as to the fine art of drafting pleadings. Pleadings involve a special form of writing and have their own rules of practice. On the most basic level, as the Court noted above, there are indeed procedural rules under both state and federal practice that require simple factual allegations to be separately pleaded.

Read the full article in the attached PDF.

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Kevin Schlosser is a Shareholder at Meyer, Suozzi, English & Klein, P.C., where he is Chair of the Litigation and Alternative Dispute Resolution Department which has a full roster of available private judges from virtually all disciplines of law. Mr. Schlosser also authors the popular blog, “New York Fraud Claims,” which analyzes the latest developments concerning civil fraud claims under New York law.

Reprinted with permission by the New York Law Journal.