Tips from the Bench - Rule 21 (part 2)

March 2010
By By Leslie Roberts, Multnomah County Circuit Court Judge.

Lawyers spend a great deal of their time shoveling smoke.

Oliver Wendell Holmes Jr.
US jurist (1841-1935)

Continued from February

A style of complaint seemingly better designed to obfuscate, than to delineate, the issues has a certain vogue. This is the lengthy, discursive and perhaps even literary description of a long series of facts in a section of the complaint that may be captioned, "Facts" or "Introduction." This is external to any particular claim for relief. Then follows relatively short sections captioned first, second, etc. claims for relief each of which purport to incorporate wholesale, the entire short story which started the complaint, and append some conclusory statement (almost entirely in the form of conclusions of law or unhelpful quotation of statute or Restatement of Torts) which asserts that therefore, the plaintiff is entitled to damages for fraud, or breach of contract, or whatever.

Which of the many colorful circumstances and factual tidbits asserted in the long, introductory section actually contribute, or are asserted to contribute, elements of any particular claim are anyone's guess. The court might believe one set of circumstances is supposed to be significant; the opposing party might think other factual assertions are supposed to contribute to a right; and the pleader may be regarding still other matters as being the load-bearing members of his structure. Any discovery dispute breaks down into a dispute about what is really relevant or might really lead to relevant evidence, where the complaint itself makes no such distinction. Buried deep in a welter of perhaps colorful, but doubtless unessential detail may - or may not - be the essential elements of a claim. The pleadings do nothing to propel the case towards resolution. Because they do not go to a jury, and are more calculated to annoy and frustrate a judge than persuade one of anything, the no doubt very considerable work (i.e., billing hours) involved (and paid for by the client) does not advance anyone's interest.

On the other hand, almost (but not quite) equally mischievous is the tactic of using motion practice to serve as a combination war of attrition and back-handed interrogatory barrage. One sees cases in which the moving party professes to be unable to discern the meaning of the pleading, and thus to require that it be made more definite and certain (ORCP 21 D), because of some minor variation in terms used from paragraph to paragraph - a "car" versus a "vehicle," perhaps. Either this is disingenuous or the exhibition of an abnormal level of paranoia. Does the movant fear that at the moment of trial it will prove that plaintiff is complaining of being struck by an airplane? It is hard to believe this is more than an attempt to harass the other lawyer and waste time.

In the same way, the pleader may move to strike a stray unnecessary adjective or two. Yes, they are unnecessary and strictly speaking ought not to be there. But no, tidying up to this degree is not worth anyone's time where the purpose of outlining the essential bones of the case has been satisfied.

Finally, there is sometimes a desire displayed to parlay the terms of ORCP 21 D into a lever to force the opposing party to in fact do what the rules prohibit: plead evidence, and thus answer the movant's questions about witnesses, timing, articles of damages, and so on. For good or ill, the Rules do not provide for such interrogation. Once the purpose of showing the facts that constitute the factual elements of the claim, all that can fairly be asked of the pleading has been provided.

If in each instance, the party drafting a pleading asks whether he or she has written as succinct, "plain" (ORCP 18) and simple a statement of each factual element of the claim as possible, and each party receiving the pleading asks whether that party can understand from the document the ultimate facts that the other claims exist, then the answers should reveal whether a Rule 21 attack on the pleading is merited. For my part, I will say that those are the questions I ask when I consider whether such a motion should be granted.

As a postscript, please be aware that this essay considers only the major categories of Rule 21 motions against the form of the pleadings. Famously, Rule 21 motions against the form of the pleadings, whether as motions to strike, to make more definite and certain, or the dismiss for failure to state a claim for relief, address only the face of the pleading. The ruling assesses not the truth or falsity of any allegation, but only whether the manner in which the pleading is set out satisfies the rules.

In contrast, other motions are available within ORCP 21 which consider the factual merits of venue, jurisdiction, sufficiency of process, adequate joinder of parties, and similar concerns which go beyond the face of the pleadings. In those types of motions, the parties are bound (at their peril) to introduce evidence of the real circumstances, and the court is entitled to considered that evidence and decide summarily whether (for example) the defendant does indeed reside within Multnomah County, and whether, in fact, there is indeed some other proceedings pending, or the like. ORCP 21 C. It has happened that lawyers may be confused by this distinction and appear at a motion hearing, happily confident of having asserted, in good form, the elements of jurisdiction (for instance), only to find that to be inadequate to avoid an order dismissing the complaint at the instance of a defendant who has thoughtfully provided an affidavit denying the facts alleged.