E-Brief Sept - Oct - The Advocates' Society

(Continued from page 9)
pleading precedent in any of these texts
that exceeds 10 pages).
2. Understand the distinction
between a material fact and evidence:
Perhaps even more obvious,
but it seems that what should be obvious
is difficult to grasp. Material facts
establish the cause of action, and evidence
is used to prove those material
facts. In a breach of contract claim, you
need to plead the provision on which
the plaintiff relies (e.g. payment was
due December 31) and the fact it was
breached (no payment was made on
December 31). The letters and phone
calls made by the plaintiff reminding the
defendant to pay on December 31 are
unlikely, in a simple breach of contract
claim, to be material facts; this is evidence
and does not need to be pleaded.
Further, every document mentioned
in your claim (the numerous reminder
letters) must now, pursuant to recent
changes to the Rules, be attached to
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the plaintiff's claim. Why plead a document unless it is necessary? More importantly, if you want to ensure your claim attacked
then you should plead lots of evidence, which is all properly struck from any claim.
3. Tell a story, but do it in a concise and easy-to-read manner: We are advocates, and there is no reason why a claim must be
a turgid document that will cure insomnia; however, this is not an exercise in rhetoric, and colourful (or any) adjectives and adverbs
normally should be avoided. Similarly, this is not an exercise in post-modern deconstruction nor a demonstration that you can write
the script to the next Atom Egoyan movie. Lawyers, and more importantly judges, think in a linear manner. Using headings, tell
your client's story in a logical and concise manner. In many commercial cases, there is a short simple story to tell. Be judicious and
remember your claim can come back to haunt you.
4. Identify the claims you are pleading: Despite falling into the land of “so obvious
it is patronizing to mention it,” I regularly see commercial claims where the cause(s)
of action is (are) not identified. This is not impressive, but it does keep defence counsel
on their toes.
MUG SHOT
5. Remember the claims that require more particulars: I also see lengthy pleadings
in which common claims like misrepresentation are insufficiently pleaded.
Remember that the Rules and common law require certain claims, like misrepresentation,
to be pleaded with particularity. Particularity means that the material facts
include who, what, when, where and how. This is not an excuse to throw in irrelevant
evidence, or even worse, speculation, about motives and how poorly your client was
treated (unless, perhaps, you are making a punitive or aggravated damages claim).
6. Repeating something is unnecessary, but once is sufficient: Of course you
want to emphasize certain material facts or issues, but repeating something more
than once is not going to make your document more persuasive or immune to attack,
it will just make it longer.
7. Save time for a good edit: Typos and grammatical mistakes, which are legion in
the pleadings I see, are not impressive. More importantly, one good edit can always
reduce the length of a legal document by at least 10%, if not more. You are doing
your client a serious disservice if you have not saved time to thoroughly edit your
claim.
Not yet convinced? Worried that your persuasive, concise pleading is still going to
be attacked? I deal with these concerns in the next edition of this series.
Please support Campbell
House by purchasing
mugs @ $5.
To order, please call the
museum at 416-597-0227.
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VOLUME 17, NO. 1, SUMMER 2005