The tyranny of fact pleadings

Every procedural system makes choices about how hard or how easy it should be to file and pursue a legal claim.  These choices sometimes involve the financing of litigation.  The availability of legal aid, conditional fees, fee shifting, group actions and the like all influence the willingness and ability of people who believe themselves wronged to file suit against the wrongdoer.  This article focuses on a different part of the balance: how much information the system requires a pursuer to have before she is allowed to file suit, and how much assistance the system will give her in acquiring needed information outside her control.  The rules for ordinary actions in the Court of Session and the Sheriff Court, as applied, over-deter pursuers. They allow the requirements of pleading specificity to serve as too fine a filter to the progress of a dispute:  if you don’t know something from the outset, you can’t plead it, and if you can’t plead it, you can’t recover related documents.  Even if you manage to gather information independently, if you didn’t plead it you can’t lead evidence about it.  In short, the interpretation of the “fair notice” and relevance requirements in pleading serve as the enforcers of an underlying requirement that a pursuer must have pre-suit access to detailed facts and evidence sufficient to prove a claim or that claim should not be filed.  This predictably skews the procedural system in favor of repeat institutional defenders and against individual pursuers in ways that can both prevent suits from being filed and prevent persons with legitimate claims from winning at proof.

This article will focus on personal injury claims filed as ordinary actions.  It will begin by discussing the theoretical benefits of the Scottish system of pleading. The article will then argue that power imbalances outside the procedure rules, party incentives in using the rules, and certain policy decisions inherent in the rules themselves result in a dysfunctional system.  It is no coincidence that all of the recent rule reforms for particular kinds of actions have moved away from detailed pleadings.  It is no accident that recent practice has allowed more disclosure before the record closes, and more amendments as cases proceed toward settlement or proof.  Knowledge is indeed power, and in a society in which knowledge (as well as wealth) are unevenly dispersed, a court system that requires near-complete advance knowledge has tipped the balance too far in favor of protecting defenders from non-meritorious claims.

The theory behind the system

The use of detailed pleading to define the scope of a lawsuit is based on policies of fairness and efficiency. In theory, each side will get sufficient notice of the opponent’s contentions to allow adequate trial preparation, and no time will be wasted on matters that are not genuinely contested.

A requirement that each party should formulate its position in writing at the outset has fundamental advantages, not only as a means of giving fair notice to the other side and helping to focus and cut down the issues in dispute but also, and fundamentally, as an encouragement to each party to analyse the substance of the case, before trying to give it expression in writing. In my opinion, if a high quality of written formulation can be achieved at the outset, much expensive and time consuming oral procedure can often be avoided.

A lawyer drafting pleadings correctly is forced to think about the elements of her client’s cause of action or defense, and to match the alleged facts with those elements.  If there is something missing, there is no cause of action and no claim should be filed.  Further, the lawyer will not carelessly fail to offer evidence of a provable but forgotten element.  Thus pleadings can be a good exercise in clear thinking and preparation.

Similarly, in theory, the initial drafting and the adjustment of pleadings will narrow the issues in the case.  The defenders will admit those things they know to be true and will volunteer alternate accounts of events or missing bits of information. The pursuers will respond by limiting their claims or responding to the inferential rebuttals or affirmative defenses.  By the end of the adjustment period, the parties and the court will have the benefit of a case that has been dramatically narrowed to the precise factual disagreements involved.

This exchange of information that theoretically occurs during the adjustment period also, in theory, avoids the need for an American-style discovery system. Rather than provide information through sworn answers to interrogatories, sworn testimony at a deposition, or production of relevant documents (helpful or hurtful), the pleadings provide the necessary information, at substantially less cost in time and money. The pursuers plead in considerable detail their version of facts; the defenders respond in kind. All that is required is candor and fully informed parties.  Such, at any rate is the theory.

I suspect that there is also a certain professional pride and satisfaction involved.  Mastering this system of pleading is quite an accomplishment. Years are spent learning exactly how to frame pleadings, how to identify flaws in the pleadings of opponents, and how to lay traps for the unwary.  Those who have the intelligence and the perseverance to have learned this system must be reluctant to abandon it for something unknown.

‘If you can’t plead it, you can’t lead it’:  Pleadings as a barrier to proof

This relationship between pleading and proof is an art form.  One can state the principles of what is required and what is not, but these principles are not particularly helpful in application.  They represent a label slapped on at the end rather than a method of reasoning.  First, the pleader must state all “essential facts.”  But which facts are essential?  Those which the pleader needs to have pleaded in order to be allowed to lead evidence – the test is thus circular.  Second, the pleader should not plead “evidence” – excessive detail about those facts which need to be pleaded.  The incentives within this system, however, lead the pleader (at least the pleader who will have the burden of proof) inexorably toward pleading more rather than less.  “The cardinal sin for a litigator is to have evidence which is otherwise admissible, but cannot be led because there is no notice on record...The prudent practitioner might prefer to be criticised for verbosity, than run the risk of crucial evidence being excluded.”  Detailed pleadings are also required to support requests for the recovery of documents.

A high degree of specificity is not based purely on paranoia, but on existing case law applying the tests for relevancy and specification.  For example, in one case the pursuer ultimately needed to prove that the defender had knowledge of a particular matter.  The pursuer averred that a representative of the defender had knowledge of a conversation about this matter. The Lord Ordinary held that pursuer needed to plead the exact way in which the defender’s representative knew of the discussion, whether as a participant, an eavesdropper, or through hearsay:

As a matter of fair notice it would be proper for the pursuer to clarify the point in his condescendence.  Whilst counsel for the pursuer correctly submitted that matters which are simply of evidential significance do not require to be set out in pleadings it seems to me that the condescendence as it presently stands does not give sufficient notice of the way in which Mr Simms and through him the defenders came to acquire the knowledge which is the critical element in the dispute.

Similarly, the duty condescendence requires extreme particularity. In a case in which water pipes burst and flooded the defender’s property, a claim that the pipes had not been properly maintained was held to be insufficient. “There is no averment as to what kind of maintenance would have been appropriate or even possible, with the result that the court is provided with no canon for judging what falls short of ‘proper’. The pursuer did not offer to prove what is meant by ‘proper’.”A look at the suggested forms in Green’s Litigation Styles discloses the kind of narrowness and detail required in pleading, particularly in pleading particularized duty, breach, and causation in personal injury cases.

If the pursuer has access to the required information, she has been forced to reveal a considerable amount of her case and her evidence and to limit that case to a narrow set of particularized claims. If the pursuer does not have access to the required information, even if that information exists, she will not be able to go forward, because the pleading will fail the test of relevance.The pleading requirements can thus stop a case dead in its tracks. It is not that the pursuer has no valid claim – she may or may not – but that the system will not help her find out. This is a decision that it is more important to protect defenders against potentially meritless claims than to help an information-poor pursuer pursue a potentially valid one.

Once pleadings become mired in detail, their ability to bar evidence increases. The pleader has only given fair notice of what is in the pleadings, and it is only precisely those things that one can try to prove. A pleading that a defender was negligent in driving at an excessive rate of speed provides far more significant limits on evidence than does a pleading that a defender drove negligently. The more specific a pleading is required to be, then, the more the pleader’s knowledge at the outset of the case has limited the course of any ensuing proof. It is possible to prove a proper cause of action, but for the pursuer to lose because it differed too much from what was plead.

Consider the case of Hook v. Brown.The pursuer was injured when a saw blade broke and a piece of the blade became detached. The condescendence read: “It was their duty to take reasonable care to...provide a guard or fence over the blade and pulleys of the said band saw which could be adjusted so that only the part of the blade which was actually being used for cutting would be exposed.” The pursuer argued after proof that the saw was inherently unsafe because it broke, but the court rejected this claim as outside the pleadings. “The charge against the defenders in the present case is that they ought to have provided a guard or fence over the blade and pulleys which could be adjusted, and that they failed to do so...No other charge can legitimately be spelled out of the Proof.” Had the duty condescendence been permitted to simply allege that defenders had a duty to take reasonable care to provide and maintain safe plant and equipment, there would have been no issue of a fatal variance between pleading and proof.

Viewed in this light, pleading specificity is not primarily about giving notice. There is no question in Hook v. Brown, for example, that the defenders knew that the pursuer was claiming to have been injured by a defect in the band saw and that they had the opportunity to investigate any possible way in which their saw could have caused that injury. They owned the saw. They could have it examined by experts. They could have a list of the pursuer’s witnesses and exhibits, and the report of the pursuer’s expert. Instead, the defenders claimed the right to limit the pursuer’s case. This kind of pleading specificity functions not to provide information but to put limits on pursuers.

It may be that current practice in some courts does not confine parties to their initial pleadings, but instead routinely allows broader disclosure and minutes of amendment very shortly before the diet of proof or even during the proof. If this is the case, then the pleading system has not limited the issues as severely. However, if this is the case then the emphasis on pleading, and the time spent on adjustment and debate serves primarily to waste time and run up costs, as Lords Cullen, Coulsfield, and Gill have pointed out.

No fishing: Pleadings as a barrier to disclosure

What if information exists that might help the pursuer prove her case, but the pursuer does not have access to that information? It is quite possible that the information will remain hidden. “Each party must collect his own evidence independently and can only compel his opponent to divulge information if specific rules of procedure require this.” Will the court help her get it? Traditionally, the court’s power to order recovery of documents is limited to documents that would help a party prove a case she had already pleaded, and only then after proof has been allowed (in other words, in cases in which the party has already survived challenges to the relevancy and specificity of the pleadings). Once again, therefore, the pursuer needs to have information at the outset. The court may order production of documents that will help the pursuer make “more pointed or specific that which is already averred.” An attempt to recover documents that go beyond the pleadings (and remember that those pleadings are quite specific) may be rejected as an improper “fishing diligence.”

There are other tools that could, but often do not, fill the gap. The defenders could plead their defensive theories with specificity, and immediately lodge supporting documents, but often they do not. In theory a party has an opportunity to interview all persons with knowledge and take a precognition from those witnesses. There is, however, no way to compel a person to speak to the pursuer’s adviser. And while it is thought to be better practice for a defender to tender witnesses and make interview facilities available, no witness can be forced to provide a statement by court order. Expert reports will eventually be lodged, but all communications between an expert and solicitor are confidential and treated as privileged. Similarly, lists of fact witnesses and documentary exhibits will eventually be lodged, but this occurs (if it occurs) immediately before trial. By then those detailed pleadings have long been in place, and convincing the court to exercise its discretion to allow an amendment may be extremely

Defenders’ pleadings: of skeletons and preliminary pleas

The pursuers, then, have every incentive to plead in considerable detail. If the defenders have similar motivation, the nature of information sharing will at least be balanced. The defenders, in theory, are required to admit those matters that are not genuinely contested, thus decreasing the pursuer’s burden of proof and saving the court’s time. Unfortunately, it appears that this is often not the case. Instead, the defenders file skeletal defenses which deny most, if not all, of the averments in the pursuer’s summons or writ. Each article of condescendence is met merely with “denied.” This “lack of candour” does not provide fair notice and it does not limit the issues to be tried. Yet “it is not possible for the court or the other party to go behind a basic denial of this kind and ask the defender to say anything more. If he denies it, then the pursuer must prove it and can only do so after proof.”

Why do the defenders not feel the same pressure to plead in detail in order to guarantee the admissibility of evidence at proof? The answer lies in the allocation of the burden of proof. In order to prevail, the pursuer will need to prove her case by a balance of probabilities. The defender, absent an affirmative defense, does not need to prove anything. A great deal of the defender’s needs can be accomplished under the umbrella of the general denial. Certainly a straight contradiction of the pursuer’s claims is safely covered. Potentially even alternative versions of events (‘we deny that it happened this way because it happened that way’) may be admissible under a denial. All a defender needs is for the pursuer to fail to prove her claim, and this rests not on the defender’s pleadings but on those of the pursuer. Further, few cases actually make it to proof. Something like 95% of all civil cases settle, so the prospect of a proof with a defense based only on denials is not a daunting one.

Nor is the defender likely to need specific pleading as a basis for recovery of documents or other disclosure. Often in personal injury actions, most of the relevant information is already in the hands of the defender. In employment injury cases, the defender owns the premises and equipment and employs the witnesses. The defender also employed the pursuer, thus giving it access to documents relevant to wage loss. In claims involving defective products, the defender designed and manufactured the product and has access to plans, tests, and people. What the defender might lack is information about the pursuer’s own actions, which must be pleaded by pursuer, and about the basis for pursuer’s claim for quantum. Conveniently, the pursuers are required to describe their damages in great detail, and in the Court of Session the pursuers must aver the name of every doctor and hospital from whom they received treatment. The information that the defenders might need is either within their power or automatically provided by the rules.

In the meantime, the skeletal defense can bring a number of advantages to the defender. In addition to keeping the pursuer in the dark, it allows several bonuses:

1 Delay. As noted above, the only way for a pursuer to combat denials is by proving her claim. The proof will be a year away, probably longer, after the defenses are lodged. Since the lack of meaningful information also makes settlement more difficult, skeletal defenses can also bring about delay in settlement. And since delay generally works to the benefit of defenders (who profit from the status quo because they retain the sums in controversy and because evidence can weaken as time passes), the filing of skeletal defenses creates a procedural advantage for defenders.

2 Avoiding or minimizing interim damages. In personal injury cases, pursuers are often disadvantaged by being forced to bear the interim costs of their injuries. For that reason, the rules allow the recovery of an interim award of damages where liability is probable and the defender can afford to pay them. Where the defenders have candidly admitted liability, these damages can be awarded. However, when generic denials are routinely filed, it may make the recovery of interim damages difficult or impossible, increasing the pressure on the pursuer to settle the case for a smaller amount of money.

3 Requiring more time and out of pocket costs from pursuers and their lawyers. Since the defender has denied everything, the pursuer must be prepared to prove everything. This will require more in the way of informal preparation (such as precognitions and witness preparation) and more in the way of formal preparation (such as commission and diligence, notices to admit). It may also require the hiring of more expert witnesses.

4 Avoiding jury trial. Because the skeletal defense fails to narrow the issues, it makes it more difficult for the case to be in a posture in which proper jury issues can be identified. A closed record containing only the pursuer’s averments met with unspecific denials may leave the issues too broad, thus depriving the pursuer of the right to a trial by jury.

The skeletal defense is not the only pleading device providing an advantage to the defenders. The practice of raising preliminary pleas to the relevance and specification of the pursuer’s summons/writ is routine. The pleas may arise out of flaws in the pursuer’s condescendences. More likely, however, they are asserted because there is again a procedural reward for the defenders in asserting these complaints. First, it can again bring about delay. The case will not be admitted to probation until a dispute about the pleadings has been considered by the court. Second, given the courts’ tendency to require great detail, the plea may succeed in forcing the pursuer to narrow her claims. Third, the pleas require very little effort on the defender’s part. In many cases, the pleas to the relevance and specification do not reveal the basis for the complaint. Even with the more recent practice of requiring a note explaining the argument, the note provides little information and takes little time. The plea can also be abandoned just prior to the hearing, securing the delay without any associated cost. Fourth, even if the plea is unsuccessful the defender has forced the pursuer to allocate the time and effort available to the case to a diversion that does not forward the pursuer’s cause. Finally, “in order to avoid the trouble and delay which a procedure roll debate would entail [the pursuer] will agree to a proof before answer instead of insisting on a jury trial.”

The pleading system in practice has become lopsided. Pursuers are not supposed to file a suit unless they have in their possession the detailed information necessary to plead and prove fault. Their initial state of knowledge will limit the development of the claim. Defenders, properly or improperly, will do their best to divulge as little as possible and to require a very narrow claim to be pleaded. Documents can be recovered only as to theories already pleaded, and the tendering of witnesses is strictly voluntary. Those who have information can keep it. Those who benefit from delay have delay within their grasp. And those with the resources to front the cost of legal fees of accomplished counsel will benefit in the long run from the ability to apply pressure that will discourage litigation, increase the incentive to settle for less, and make pursuer success less likely in those rare cases that make it to proof (which in turn decreases the settlement value of cases to come).

Trends and discontents

Despite the power of the traditional system of written pleading, the trend is to the contrary. Every major reform of civil procedure in recent years has been toward subject-specific systems that loosen the pleading requirements. Since problems were perceived in personal injury cases, the optional procedure (in theory) requires only general pleading. Since problems were perceived in commercial cases, the commercial cause rules require only general pleadings unless the Lord Ordinary finds that greater detail would be helpful in the specific case. In sheriff court ordinary actions, the 1993 amendments decreased (in theory) the ability of quibbles about pleadings to slow the case down, and put the power to allow a debate in the hands of the sheriff. In summary cause and small injury cases, the pursuer’s pleadings are allowed to be general, and the defenders’ pleadings are almost non-existent. Even in cases governed by the ordinary cause rules in each court, the trend is away from the straightjacket of traditional pleading. Courts have begun to allow disclosure before the record closes. Amendments after the record has closed, even close to trial, have become more and more common. Parties can send their opponents notices to admit in an effort to overcome the inability of pleadings to do the job. Exchanges of lists of witnesses and documentary exhibits shortly before trial provide more notice of the case to be met than do the pleadings. All of these developments reflect an understanding of the exchange of information in a lawsuit as a process that continues throughout the dispute rather than as a formal exchange of notifications, over and done at the outset.

Recent studies of the procedure system by eminent jurists focus on wasted time rather than premature limits, but they too recognize that the pleading system on the books is not serving the people of Scotland well. Lord Gill, in his speech to the Law Society of Scotland back in 1995, noted:

I can only express my impatience with the tiresomely clever pleading points taken in debates – for example, where in strict accordance with our rules defenders are able neither to know nor to admit that which, with no great effort, they could know full well; or where time is spent arguing as to the appropriate circumstances in which pleading formulae such as ‘believed and averred’ may be used and minatory ‘calls’ may be administered by one pleader to the other.

Lord Cullen, in his 1995 Review of the Business of the Outer House of the Court of Session, also criticized the pleading system. “The parties’ averments, and in particular the averments of the party on whom the burden of proof lies, tend to become encumbered by detail which is unnecessary as a matter of averment, as opposed to evidence...and the defender’s averments may lack candour...” Similarly, Lord Coulsfield’s committee on personal injury actions reported in 1998 that the task of identifying precisely the issues which require to be decided can only be carried out once the work necessary to enable the parties to identify those issues has been done. It is also immediately obvious that the job of stating the cases in the written pleadings must be precisely and expertly carried out if it is to succeed in its object without prejudicing the position of one party or the other. Daily experience confirms both of these points. It is, and has for many years been, normal that a party’s true case is only made precise in a minute of amendment lodged relatively shortly before the date fixed for a proof. It is equally well known that the courts have repeatedly – perhaps more often in Sheriff Court cases but not exclusively so – drawn attention to the fact that blunders in pleadings have prevented the true issue in a litigation from being properly determined.

Time for change

The former critics of the system are now in charge of it. Lord Cullen is Lord President of the Court of Session. Lord Gill is Lord Justice Clerk. Both divisions of the Inner House, then, are led by men who are well aware of the consequences of the current pleading rules. Lord Coulsfield, author of two different critical reports, is also a member of the Inner House and was the devil-master to Justice Minister Jim Wallace. Given the political will, the forces for change are in place.

Fairness is important, and lawsuits need focus. But in modern Scotland (as in modern America), private lawsuits by private individuals are the primary means by which the civil law is enforced. If bringing and winning suits is too difficult, there is too little deterrence of unlawful behavior. Rules that favor those who have greater information at the outset of litigation are a relic of a different legal world.

The mantra of ‘fair notice’ does not answer the questions of fair notice of what, fair notice when, or fair notice by what means. Fair notice does not have to come from stylized detailed pleadings completed at the outset of a lawsuit. Scotland’s courts are already evolving away from this model. They are poised to keep going toward a system that maintains its unique Scottish identity but is better able to assure that the law of Scotland is enforced. Reform of procedure is not sexy, but it is crucially important. As long as lawsuits remain a primary means through which citizens assert their rights, access to justice requires a more evenhanded set of rules.

This article first appeared in the SCOLAG Journal

Professor Elizabeth Thornburg is Professor of Law, Southern Methodist University, Dallas, Texas.