Denver Bar Association
February 2010
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Form ‘R’ Substance: This is still a “notice pleadings” state, right?

by Dennis Walker

Clients want to get down to the core reality of key facts right away. But when one person’s notion of the truth is at odds with the impressions and contentions of their adversary, the conflict begins.

As advocates, we must work for the just, speedy and inexpensive determination of all civil actions, according to Colorado Rules of Civil Procedure, Rule 1.

Pleadings have exploded over the last 15 years under Rule 26, General Provisions Governing Discovery; Duty of Disclosure. Better disclosures are supposed to result from facts stated with particularity in the complaint and answer.

How this works in practice can make you wince.

More details than ever before get spelled out up-front in civil cases. It is not unusual to see 80-90 paragraphs with four claims for relief, factual recitals of extensive "general allegations."

Parties should get more-complete disclosures. They should need less discovery with this approach, even though adequate notice is enough to state a claim for relief. However, the cost and time involved in discovery has not necessarily been reduced.

We often see responses such as:

"The allegations of paragraph 14 of the Complaint state legal conclusions or matters of a purported application of law to opinions, positions or legal issues to which no response is necessary or required, and to the extent any response is considered necessary, said allegations are denied or are denied based on lack of information or knowledge sufficient to formulate a position as to whether said allegations state truthful facts."

Where does this come from? Conclusions are essential, but a complaint full of nothing but conclusions usually is not helpful.

The rules on how statements of conclusions are supposed to be done are spelled out in Rules of Civil Procedure, No. 8 — General Rules of Pleading and No. 9 — Pleading Special Matters. Complaints must state claims for relief. Then, it can be evaluated whether the assumed facts demonstrate that the party is entitled to some legal relief.

One way that debated issues are tested is when a party states that a notice relevant to a claim was given to the other party, and that the notice was adequate. If a fact carries a bit of weight with it, that should not warrant avoidance. The Rules require the specific statement of affirmative defenses, such as waiver or estoppel, or they will be considered waived. We are required to state "legal" conclusions in pleadings along with material facts.

So, why do we see a dance of spin? For example, the respondent "cannot be required to answer that conclusory matter." Why can’t we meet the issues head-on, and focus on the things that count?

It reminds me of the occasional round-about that sometimes follows from an early conference about the positions of clients. You get ready to kick around the issues and tough facts. Your adversary expounds on his client’s side of things. After you have let him finish, then you attempt to share another perspective. With the first mention of some hot-button fact, he quickly cuts you off with a preemptory, "I don’t want to argue with you." No ideas get exchanged. Progress is deferred. No one really confers.

Perhaps we see a bit more form over substance. I thought that was for tax practitioners.

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