Bad Answer! On Making Sure Defendants in Civil Cases Properly Respond to the Allegations in the Complaint

I’m looking forward to reading the article discussed in “A Non-Frivolous Challenge to Frivolous Defenses”, a new post at Jotwell, a legal blog that I suspect is going to become one of my favorites. Without getting too nerdy, the piece discusses a recent law review article about the various ways that defense lawyers in civil cases, such as Arkansas personal injury cases, employment discrimination cases, and insurance claims, try to get around actually responding to the allegations plaintiffs make in their complaint.

Here’s how a civil case goes, in very general terms: A lawsuit usually begins when the plaintiff files a document called a complaint. It sets forth the plaintiff’s factual claims and the legal theories for why he should prevail. Then, the defendant files an answer, a responsive pleading that is supposed to make clear what facts in the complaint the defendant agrees with and which they don’t; defendants also list any relevant defenses that support their case. Then begins discovery, motions for summary judgment, perhaps alternative dispute resolution, settlement, trial, etc.

Much of the planning for the rest of the case is figuring out which facts the parties actually agree on, which are in dispute and which are not, and what effect that has on your likelihood of success. Unfortunately, many defendants submit answers that simply don’t meet respond as fully as they are supposed to. And many times it goes unaddressed.

While it’s not the stage where either sides’ attorneys will spend most of their time, the initial complaint and answer are crucial. And, when representing plaintiffs, making sure defendants provide the information your client is entitled to have is an extremely important but sometimes underappreciated step. I’ll be giving the article a look for any ideas that I can work into my practice.