Notice Pleading

With what I hope to be a regular feature in this blog, I wanted to kick off my (non-technical) contributions to the blog with what I consider an interesting, legal issue I learned from school, explained in five minutes. I went into law school with some general knowledge of various pockets of the law, the kind mostly learned from living in the world, reading articles and of course, watching (mostly bad) legal dramas.  I hope that this venue provides a great opportunity to present those “huh, never really thought of that” moments that even non-legally inclined people from similar backgrounds can appreciate.

The first feature will come from Civil Procedure, one of my doctrinal classes about the nuts and bolts of bringing a civil case to trial, and the different machinations that occur along the way. Sounds boring right? (Well, at least relative to the overall boredom non-legal types might attribute to law school). While I have learned many other interesting tidbits in classes I hope to share, I think one of the biggest parts of the legal system I had entirely taken for granted was the first step in bringing a case to trial- filing a complaint.

We have a system called notice pleading. When you file a lawsuit, you have to provide the other party with “notice” about what you’re alleging. This notice pleading system replaced what a fact pleading system, where you had to file the complaint with the specific facts of what happened. Why does this matter?

Well under fact pleading, bringing a case against a corporate conspiracy would be really difficult. How can you allege the specific facts about something inherently secretive? Under notice pleading, you file the complaint with limited evidence and hope to get to something called “Discovery” where you can gather facts about the corporation to determine if there was a conspiracy or not.

Unfortunately one of the downsides of the notice pleading system is that some unworthy claims might squeak through to corporations. Trials are expensive, as is discovery, so unworthy claims might end up getting settled despite their quality. So there’s a (political) pendulum that swings back and forth that tries to balance the chance an unworthy claims gets through versus the risk of not allowing a justified claim through.

Typically notions of justice and equity aren’t often dramatized when they’re part of nitty-gritty procedural stuff. Notice pleading stories wouldn’t make for interesting TV so it’s clear why no John Grisham will ever write it into a movie but it’s a major point of litigation, and an absolutely fascinating starting off point to any legal issue. This notice pleading system to me is one of the best examples I’ve observed so far of the inherent strengths of the U.S. system, even as it rejiggers the balance between on how easy it is to sue other parties and protecting other parties over the years.