9 Tips For Better Pleadings
Your case will be won – or lost – on your pleadings. Here are 8 tips on how to draft bullet-proof Pleadings.
(or ‘Advice to Juniors-Part 3’)
You must have drafted, by now, numerous pleadings. Here are some useful, practical techniques.
How do you plead a case? This is how you might have done it in the past:
Step-1, take instructions from the client.
Step-2, go into the precedents of pleadings [say, Bullen and Leake on Precedents of Pleading], and then start drafting.
That is not a good approach.
[Tip-1]: Never believe your client’s version – test it independently
If you plead your case on what your client tells you, you ‘plead blind’.
Check if the available evidence corroborates the client’s story. Study the old House of Lords case of Myers v Elman.1 1 AC 242 You might find some useful tips there.
Pleading a perfect case that appears brilliant on paper, filing it in court – and then hoping the evidence for it can be found later – is madness.
Months down the line when the judge might rip your head off for amending pleadings at the last minute, you might discover some pleaded facts are untrue, or the evidence for them cannot be obtained.
You will then be compelled to force-fit your evidence to your pleadings.
All that is suicidal – and we have outlawed seppuku in chambers.
[Tip-2]: Prepare an ‘End of Trial Submissions’ (‘ETS’) right at the beginning
Shortly after interviewing your client, draw up an ETS.
It may not be perfect, but it will give you a ‘helicopter view’ of the case you have to meet – and will save hours when drafting the inevitable Written Argument at the end.
[Tip-3]: Write a 100-word background story with available evidence
Do it as you would in an End-of-Trial Written Argument, but use only available evidence.
Set down the law, the questions the case poses, the relevant evidence (or what the evidence you think will be useful – if you can get your hands on them) .
Consider how your opponent might exploit any weaknesses in the ETS.
Search for weaknesses in the case, and overcome them; identify pitfalls, and avoid them.
Can you see the problems you will encounter – both legal and evidential? Good!
Now take whatever steps that are needed to avoid these problems.
Ninety percent of your problems and sleepless nights will be averted.
[Tip-4]: Identify & hunt down missing evidence & witnesses
Determine who will be the source of these missing evidence: determine, right now, whether you will get it by discovery, by calling a witness.
Identify witnesses for each area. Place their names on a Witness Subpoena List – straight away.
If you need a document, hunt it down. Do not hope to draw missing information through cross examination. You cannot get what you do not know exists.
[Tip-5]: An example – pleading a Claim in Defamation
Suppose you intend to plead defamation: study the law and extract exactly what elements the court will look for at the end of the trial.
The elements are:-
(1). a statement;
(2). that is false;
(3). and directed at the plaintiff;
(4). which was published; and
(5). that had the effect of lowering the plaintiff’s reputation.
So plead that the defendant made a particular statement, that the statement was untrue, that it was directed at the plaintiff, that it was published; and that it had the effect of lowering the plaintiff’s reputation among members of the public, or a select group of individuals.
Then provide the details that follow the ‘WH List of Questions’: –
(4). ‘how?’ and
The ‘what’ element requires you to set out the actual words of the publication: and so on. Follow through with the ‘WH List of Questions’.
Provide details of the date, time, venue and the manner of its publication.
Because defamation is a tort of words, and by words, unless you set out the meanings or the way in which the words were meant to be read, you will not be allowed, during trial, to refer to other meanings not in the pleadings. The court is very strict about it.
Then, set out the ‘natural and ordinary meaning’ of each of those words or phrases, taken in the context of the entire document, seen as a whole.
Plead any innuendo meanings that arise outside of the words complained of: show the court that you understand the difference between ‘ordinary meaning’ and ‘innuendo meaning’.
Set them out, one at a time.
Then set out the details of the publication – the full details.
Being smart, you will no doubt plead in any Reply to the Defendant’s Defence, that the publication was ‘malicious’, and explain why it was malicious. In this way the defendant will not be able to set up the defence of Fair Comment or Qualified Privilege. Think of these things far ahead of time.
When you pray for relief, ask first for two injunctions that the defendant will not repeat these or similar words against your client.
The first is pending trial.
The second is an injunction taken on a permanent basis: this is sometimes known as a ‘Sivaperuman injunction’.
Show the court that you understand that each of these relief are different in nature and require different tests to be satisfied.
[Tip-6]: A Bare Denial is Suicidal – have an Alternative Hypothesis
“Paragraph 10 of the Plaintiff’s Statement of Claim is denied and he is put to strict proof thereof” – and then stop.
You have just committed harakiri.
The phrase, “he is put to strict proof thereof” add absolutely no value.
If the Plaintiff proves his prima facie case, and his story appears reasonable to the judge, you are dead in the water.
You have no alternative story.
Always have an Alternative but Reasonable Story that will stop the judge migrating to the Plaintiff’s side.
“Paragraph 10 of the Plaintiff’s Statement of Claim is denied. Although a contract was formed, it became illegal by the passing of a new Act (etc). Under the New Act, the contract thus became unenforceable, as a result of which the Plaintiff cannot maintain his claim.”
“Further and in the alternative, even if the contract was enforceable, (which is denied), the Plaintiff did not take reasonable steps to mitigate its losses. It could have recovered almost 95% of the price of its cocoa in Abu Dhabi, at a port at which it docked the Ship, The Lanyard. Had it discharged its cargo at Abu Dhabi the claim would not have ballooned to USD 10 million. In the event, any loss that has been suffered, if at all (which is denied), is nominal.”
In this way, even if the case is lost, you would have just saved your clients millions of dollars.
The judge – for her part – will have her eyes firmly fixed on the effect of the illegality point, even before she addresses her mind to the plaintiff’s lack of mitigation of loss.
[Tip-7]: Another example – Drafting A Defence to a Breach of Contract
Suppose you are to defend an allegation of a breach of contract.
Apply the Defamation example above. What would be your main consideration?
First, you would look out for the Elements of the case. You must have a sound understanding of the key features of a contract. These would be: –
(1). an analysis of the nuts and bolts of the contract: an Offer, an exact Acceptance, Consideration, Intention to Create Legal Relations, etc.,
(2). the Existence of a contract
(3). the most important terms
(5). Which Term had been ‘breached?
Was it a:-
Condition, or a
Warranty; or an
Innominate Term (Remember Kawasaki Kisen Kaisha?);
(6). The Breach,
(8). Remoteness of Damage,
(9). Mitigation of Damages, etc.
Apply these principles to the evidence before you.
If you thought no contract had been formed at all, say so, and give particulars.
If there had been a Total Failure of Consideration – plead so, and explain the circumstances.
If the contract had been formed, but what had been breached was not a ‘condition’ but only a ‘warranty’ not necessitating a ‘repudiatory ‘ action on the part of the plaintiff – say so, and give details.
If you thought there was a breach; but it gave rise to no appreciable loss, damage or prejudice – aver so, and explain why.
If the action is premature – say so: and give your reasons.
If there was a breach but the claim is time barred, you must expressly plead details, or you are lost.
If you have a counterclaim, plead it carefully. See if you need to bring someone in ‘By Way of Counterclaim’, or By Way of a Third Party Notice, then take those steps.
If the contract is illegal, plead it carefully, explaining why and pointing out the law that has been breached.
When you are a defendant in a contractual claim, the idea is to defeat the Plaintiff in the impending Order 14 Application.
They will go for it. How to do this?
Study the papers carefully.
Come up with a Counterclaim that is Greater than the Claim Sum – that will stop the O.14 dead on its tracks.
[Tip-8]: Remember to ask for Declarations
Declarations are exceedingly powerful forms of remedy. Most legal practitioners do not exploit the relief of declarations often enough. Unless they are specifically asked for, the court will not grant this relief. So in every case that you plead – whether for a plaintiff or a defendant – ask for the relevant declarations.
After pleading for a declaration, you need to ask for ‘consequential relief’ that fits with the declarations.
For example, if you ask for a declaration that the defendant is in breach of his fiduciary duties, then you must ask orders disgorging such profits, and to account for such monies or assets he has swindled.
Always ask for prayers right at the end, in the following words:
“that the plaintiff [or defendant] be at liberty to apply”.
This is a useful door to be opened at a later time.
[Tip-9]: Watch your reputation
Do not put up a ‘sham defence’.
The judges will see it a mile away.
Once a reputation is lost, it is never regained.
When you rise and address a judge she must say to herself:
“This guy is here. There must be something in his Defence.
He wont’t lie. I know.
So what is going on here?”
A good reputation and an unimpeachable character is the Best Pleader on your side!
[The author expresses his gratitude to Ms. KN Geetha, Mr. JP Kirat Singh, Mr. GS Saran, and Ms. KP Kasturi]