Checklist for Writing a Civil Complaint that Scares the Defendant and Persuades the Court
Tips for Writing a Civil Complaint to Increase the Likelihood of a Reasonable Settlement
The complaint is the first court filing in a lawsuit (a pleading). This document starts your civil action to recover damages from another person or a company.
As the saying goes, “First impressions are the most lasting.” You should, therefore, do more than provide the bare minimum in your complaint (or petition or claim for benefits depending on the court or administrative agency with jurisdiction).
Your civil complaint must allege facts to support legal claims under state or federal statutes or the common law (causes of action) against a defendant and say what remedy you seek (monetary damages, injunction, etc.).
But a well-written complaint can do more than this. It can frame the litigation’s scope to expand pretrial discovery into the areas you need, defeat a demurrer, a plea in bar, a motion to dismiss for failure to state a claim, or a motion for summary judgment, and persuade the insurance claim adjuster, defendant, and court of your case’s strength.
This article explains how to write a complaint that meets the specificity and notice pleading requirements for various tort claims.
Follow these tips to draft a civil complaint that increases the chance of winning your lawsuit or negotiating a fair settlement.
Keep reading for more information about the pleading that starts a civil suit.
And if you have questions about tort claims involving traumatic brain injury (TBI), construction accidents, third-party lawsuits arising from work injuries, or car crash law in Virginia, call our personal injury law firm: (804) 251-1620 or (757) 810-5614.
See what results we can get for you.
What are the Civil Complaint’s Goals?
A well-drafted civil complaint has several purposes and goals.
For example, the complaint:
- Starts the civil litigation
- Enables the court to find the existence of a legal basis for judgment
- Establishes the litigation’s scope, which determines what evidence the defendant must disclose in pretrial discovery
- Helps you defeat a plea in bar, a demurrer, a motion to dismiss for the failure to state a claim, or a motion for summary judgment and keep your case in court
- Identifies the transaction, event, or occurrence giving rise to the complaint
- Increases the information and documents the defendant must disclose and produce under Rule 26(a)(1) of the Federal Rules of Civil Procedure if you filed the lawsuit in federal district court. This civil procedure rule requires the answering party to provide you with the following information without a discovery request: “the name and, if known, the address and telephone number of each individual likely to have discoverable information – along with the subjects of that information…,” and documents, electronically stored information, and tangible things relevant to the case.
- Informs the defendant of the nature and character of the legal claims asserted (notice pleading) and the facts relied on
- Persuades the court that you have a viable case and should win
- Prevents the defendant from raising the affirmative defense of statute of limitations (as long as you filed the complaint within the applicable period)
- Reduces the likelihood that you will have to file an amended complaint to avoid dismissal based on a defensive pleading
- Shows the defendant and the judge that you conducted a thorough investigation and researched the applicable statutory and case law before filing suit
- Tells the defendant and judge what relief you seek
Who Can Write, Sign, and File a Civil Complaint?
Only two categories of people can draft, sign, and file a civil complaint in state or federal district court:
- You can sign and file the complaint if you appear pro se, which means you represent yourself in court without an attorney’s help.
- An attorney in good standing with the state bar
The signature means the person signing certifies that:
- (i) They have read the complaint,
- (ii) to the best of their knowledge, information, and belief, formed after reasonable inquiry, the complaint is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law, and
- (iii) the pleading’s purpose is not to harass or cause unnecessary delay or needless increase in the litigation’s cost
Pleading Standards under the Civil Procedure Rules: How Much Detail Do I Have to Include in the Complaint?
The specifics required in the complaint depend on whether you file the lawsuit in state or federal court.
We recommend including detailed factual allegations to survive a demurrer or a motion to dismiss under any pleading standard – plausible suggestion, notice pleading, or fact pleading. And we provide our tips for writing the factual allegations in the complaint later in this article.
Federal Pleading Standards
For years, the “notice pleading” rule determined if a complaint was sufficient. Under this rule, a complaint was adequate if it had enough information to notify the defendant of the claims’ basis.
The pleading standard has changed somewhat in federal court.
Through its decisions in Bell Atlantic v. Twombly and Ashcroft v. Iqbal, the United States Supreme Court established that complaints must now allege enough facts to “plausibly suggest” the defendant is liable for the harm.
This standard requires more from plaintiffs than the notice pleading standard followed in Virginia (except for some claims that you must contend with specificity, such as fraud).
Virginia Follows Notice Pleading
Virginia’s pleading standard is more relaxed.
Your complaint is sufficient “if it clearly informs the opposite party of the true nature of the claim.”
What Should I Do Before Drafting the Civil Complaint?
It’s tempting to fire off a complaint when someone else has caused you harm. But you must ignore this urge if the goal is to win and recover fair compensation.
Although the complaint officially starts the litigation, recovering a remedy through the legal system begins well before you write the complaint. Indeed, the strategic decisions you make before pleading the case will impact the likelihood of success.
We recommend completing the following steps before writing the complaint in a civil lawsuit:
- Investigate the Facts: This step may include interviewing witnesses, collecting the relevant documents (police crash report, medical records, operative reports, photographs, videos, earnings statements, medical bills), asking treating physicians for disability letters addressing medical and legal causation, work restrictions, permanent impairment, and future medical expenses, identifying all potential defendants (especially important in construction accident and product liability lawsuits), and finding applicable insurance coverage.
- Create a chronology of the facts
- Research the statutes and judicial opinions to determine potential claims (causes of action): In Virginia, you cannot prevail on a claim unless you pled that cause of action, so include all possible theories for relief. For example, in a personal injury lawsuit, you may claim negligence, strict liability, assault, battery, breach of warranty, or other theories arising from the same incident.
- Review the jury instructions for your causes of action: Your complaint should address the legal elements for each cause of action pled, and this research will allow you to do so.
- Determine what courts have subject matter jurisdiction and personal jurisdiction over the defendants.
- Determine the proper venue for filing a lawsuit (there might be more than one), then decide which is best for your specific action.
- Review applicable statutes and rules governing complaints and other pleadings: Title 8.01 of the Virginia Code addresses civil procedure and remedies in this state. And the Federal Rules of Civil Procedure, the Rules of the Supreme Court of Virginia, and Local Court Rules provide insight into what the court with jurisdiction over your action considers a well-pleaded complaint that can survive early motions to dismiss.
The Form and Content of the Complaint
Your complaint satisfies the goals of an initial pleading if it includes the following:
Caption
The top part of the complaint should say:
- The court’s name (where you file the pleading)
- The case’s style, which includes the names of all plaintiffs and defendants
- The type of pleading (if you are reading this article, the pleading is a civil complaint)
- A blank space for the court to enter the civil action number assigned after the clerk’s office processes the complaint
- Each party’s last known address, telephone number, and email address. If you cannot identify an appropriate party by name, you can designate the party as “John Doe, the true name being unknown presently.” Often this styling is necessary for hit-and-run auto accident actions.
- Whether the defendant is an individual, a government agency, an organization, or a corporation
- In what capacity are you suing the defendant – individually, in a representative capacity as an officer of a business, or both
Introduction to the Lawsuit
Though not required by civil procedure rules, we recommend beginning your complaint with an introduction section.
Your introduction should be short – one to three paragraphs at most – and explain the case type, why you should win, and what damages you want.
The introduction should be short – one to three paragraphs – and serve as an advertisement for your theory of the case. You want the judge to know within a few seconds of reading the complaint what the dispute is, why you should win, and what damages you want the court to award.
Every decision you make during pretrial discovery and motions should advance the theory in the complaint’s introduction.
Description of the Parties
At a minimum, the complaint must include the names and addresses of the parties. But we recommend going further.
Include background information that puts you in a good light, such as age, career, community involvement, family, and challenges overcome. The more likable and authentic you are, the greater the chance of a successful resolution.
Statement of Jurisdiction
You must include a short and direct statement explaining why the court has jurisdiction over your case.
Jurisdiction refers to:
- Subject matter jurisdiction: Whether the court has jurisdiction over the case based on the law and facts in dispute. If filing the complaint in federal court, you must state whether the court has federal question or diversity jurisdiction based on the parties’ state citizenship. Federal courts have diversity matter jurisdiction if the amount at stake is more than $75,000, not including interest and court costs.
- Personal jurisdiction: Whether the court has the power to decide a claim involving the parties. Citizenship is essential in determining personal jurisdiction, as is the number of contacts the defendant has with the state where you file the action.
- Venue: Whether it’s appropriate to hear the lawsuit where you filed it. Usually, the venue is proper where the accident occurred or where the defendant lives.
Statement of the Factual Allegations
A solid personal injury complaint recites the events that give rise to the legal claims and the impact the injuries have had on you.
You must state the facts you rely on in numbered paragraphs.
Keep the sentences short and precise, with one fact or statement per numbered paragraph.
There is a benefit to this: In its answer, the defendant must admit or deny each allegation separately.
You want as many admitted facts as possible to streamline the litigation and get a fast (and good) result. And short sentences are more likely to get admissions than long and ambiguous allegations.
The “numbered paragraph” requirement provides less opportunity for persuasion than the requirements for motions, trial court briefs, and appellate briefs.
Nonetheless, organizing the facts to make your pleading persuasive would be best.
One method for fact statements is to lay them out chronologically, using headings for each section describing a new act.
Another method for a persuasive fact statement is separating the allegations by category (pre-accident condition, accident, medical care, insurance, etc.) with headings.
Causes of Action (Legal Claims, Actions at Law, Etc.)
Your complaint must include separate counts (sections) for each cause of action you allege entitles you to relief.
And listing and using specific facts to cover each element of the cause of action pled is best method for satisfying this requirement and persuading the judge and defendant of your claim’s strength.
We recommend detailed pleading even if the rules of court do not. For example, Rule 3:18 of the Rules of the Supreme Court of Virginia permits an allegation of negligence without specifying the particulars. But, in our opinion, such a vague allegation is easy for the defendant to deny in its answer.
Demand for Damages and Sought – The Ad Damnum Clause
Your complaint must include a request for damages or other relief.
For example, a personal injury lawsuit based on a motor vehicle crash or some form of negligence should ask for a specific dollar amount plus any other compensatory damages, punitive damages, interest, attorney’s fees, and other relief the court finds proper.
And if you filed a lawsuit for defamation or a business tort (such as stealing trade secrets or copyright infringement), your pleading should ask for declaratory and injunctive relief.
Further, a complaint based on the employer-employee relationship (labor or employment law claim) may seek the reinstatement of your position.
Whatever you ask for, make sure the amount of damages sought covers all potential losses. In some jurisdictions, including Virginia, you cannot recover any amount exceeding the ad damnum requested in the complaint.
You should also allocate the damages strategically. For example, a party may not recover more than $350,000.00 in punitive damages from all defendants. As such, you should increase the compensatory damages sought to avoid this aggregate cap.
Request for Jury Trial
If you want a jury trial (and we recommend it for all our clients), include a section in your complaint stating that.
Otherwise, the judge will decide your case ( a bench trial).
In Virginia, a civil jury in a circuit court consists of seven persons from a panel of at least thirteen.
Signature
You or your attorney must sign all pleadings before filing them with the appropriate court.
Can I Plead Alternate Facts and Theories of Recovery in the Complaint?
Yes.
The legal doctrine of res judicata says you must simultaneously bring all potential claims against the specific defendant or risk waiving them. “Claim-splitting,” filing a second lawsuit arising from the same operative facts, is prohibited in most situations.
So do not worry if some of the theories of recovery relied on are inconsistent. Federal and state civil procedure rules allow alternative pleading.
For example, negligence and intentional torts have different mental states. Indeed, a person either acts carelessly or intentionally, not both.
But you may seek damages under both theories in your initial pleading, although they are at odds.
Five More Tips for Writing the Complaint – and Pleadings Generally
Now that you know how to format the complaint and what content to include, here are some more tips for drafting an initial pleading that leaves a lasting impression.
- Avoid inflammatory language. By the time you file the lawsuit, negotiations have usually failed. And you are probably upset. We get it. But avoid using insults and defamatory language in the complaint.
- Use short sentences. Use “plain language” to persuade your audience.
- Use headings. We are fans of using descriptive titles throughout pleadings to persuade the court. Our goal is for the judge or defendant to understand our theory of the case by reading these headings.
- Avoid conclusory statements. Alleging that the defendant was “negligent” is not a fact. It is an opinion. Alleging that the defendant ran a red stop light and struck your car when you had a green light is better and requires an admission or denial that you can work on proving.
- Cite supportive documents – and attach them. If you are filing a civil action for injuries, cite police reports, medical records, the defendant’s product manuals and press releases, and other applicable paperwork, and state you incorporate these papers by reference. For example, mentioning a document in the complaint in Virginia (and some other states) makes it an exhibit. And some states allow you to attach documents to the complaint. Referencing documentary evidence strengthens the complaint.
What Other Documents or Forms Should I Submit with My Civil Complaint?
In additionYou must submit a civil cover sheet stating the lawsuit’s nature when you file the complaint and its exhibits.
In the federal courts, the civil cover sheet is Form Number JS 44.
In Virginia, the civil cover sheet is Form CC-1416.
Do I Have to File a Complaint to Resolve My Legal Dispute?
No.
You can resolve a legal dispute without filing a lawsuit.
But sending a proposed complaint to the defendant (or filing it with the court but not serving it) may help resolve the problem.
The parties have often discussed the case and started settlement negotiations before beginning litigation. And in personal injury cases, this usually results in an insurance settlement without court involvement.
But sometimes, a pre-litigation settlement is impossible because the parties value the claim differently. When this happens, you must file a lawsuit.
Some attorneys believe you should always file a complaint before beginning settlement negotiations. The rationale is that this puts the insurance company on the defensive and forces it to act quicker.
There are some cases where this is necessary. But we reject a blanket rule for all situations.
Filing the charging pleading with a court means you will incur fees and legal costs you would otherwise not have to pay if you settle out of court.
Further, many insurers are unafraid of litigation. Therefore, filing suit is unlikely to get a sudden jump.
Again – consider all factors before filing a complaint and starting litigation without talking with the defendants about an informal resolution.
Contact a Top-Rated Lawyer to Draft a Well-Pleaded Complaint
Your complaint’s factual allegations should tell a story that results in one conclusion: The defendant should pay you for the harm it caused.
For help preparing your case – and winning – call us today: (804) 251-1620 or (757) 810-5614.
We write effective complaints to scare insurers into paying workers comp benefits to injured employees and making auto accident victims whole. See the results here and here.
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