I took Civ Pro from a giant.
When I say giant, I mean in the figurative sense, because he’s only 5’7″ or so, but this diminutive fellow remains among the most talented and effective teachers I’ve ever had. He inspired me to wear bow ties, and illustrated the myriad types of joinder with a shopping bag full of beanie babies (I’m not joking).* I grasped counterclaims and cross claims and third party claims pretty quickly– about the only things I grasped quickly as a 1L– because of an effective teaching tool.
The most basic subject he illustrated (sans plush toys), though, is the one that lawyers constantly forget, and which I constantly rant about: pleading requirements. In short…
FACT PLEADING
Articulate your causes for action, citing chapter and verse of the statute or precedent on which they’re based, and state facts to support your claims. Flesh out your argument as best you can at the beginning, or get kicked to the curb.
NOTICE PLEADING
Best described by FRCP 8(a)(2): “[A pleading that states a claim for relief must contain] a short and plain statement of the claim showing that the pleader is entitled to relief.”
Short and plain. In other words, don’t get wordy about it.
Attorneys often forget that federal actions fall into the latter category. That makes for significantly lower costs to serve abroad… if Notice Pleading is actually observed. In an early post on this blog, I offered some tips in Keeping Translation Costs Down— chief among them being (1) keep brevity in mind and (2) avoid exhibits wherever possible. I got even more practice-specific a year later in Keeping Translation Costs Down, Part Deux (for Patent Litigators), suggesting that a five- (or six-!) figure translation bill could be limited to just a few thousand dollars merely by referencing easily accessible patents instead of attaching them.
But it bears repeating: lawyers do not get paid by the word. Translators, on the other hand, do.
Here in Missouri, we can’t get away from lengthy petitions in state court. We’re a fact pleading jurisdiction, so we pretty much have to put our cards on the table early. But in federal court, such lengthy pleadings are not only unnecessary, they’re often frowned upon.** As such, my clients’ translation bills are consistently lower in federal court than in state court.*** And remember– if a defendant is to be served in a country that is party to the Hague Service Convention, odds are that translation will be required. It is an unavoidable requirement in most of the non-Anglophone world. So keep it short, and keep translation costs down.
* Jeffrey Berman, Associate Dean Emeritus at UMKC Law. Still teaching, still hitting the ball out of the park. And everybody who’s taken his Civ Pro class in the last two decades thinks of a whale and twin unicorns every time they have to join a defendant.
** Which begs another question: if you know you’re going to be removed, why not just file in federal court in the first place? Yes, there are certainly strategic reasons to stay in a state venue as long as possible (see *** below), but if there’s no way to fight removal when it happens, a whole bunch of costs can be saved by just going federal to begin with. Most notably, your number of documents to serve will be reduced because your timing is right, but you’ll also avoid lengthy pleading requirements.
*** A big exception to that conclusion: federal courts that require service of ancillary documents, Rule 4 notwithstanding. Examples: civil cover sheets, ADR program guides, individual judges’ rules of practice, etc. If they have to be served, they have to be translated right along with the summons and complaint.
