Rule 21, Part 1

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

"A cynic is a man who, when he smells flowers, looks around for a coffin."

H. L. Mencken, US editor (1880-1956)

Mencken was a thoroughgoing cynic. But truth be told, smoke has indeed been shoveled. I've had a couple of Rule 21 motions that in one way or another nearly triggered the fire alarms recently.

There are very good reasons in theory for pleading rules and avenues to attack and require perfection of the pleadings. Pleading practice can contribute to the refinement of issues and the efficiency of litigation, and can build a sound scaffolding for discovery and for trial and decision. Theory is not always practice. The purpose of this column is to propose an approach to pleadings and pleadings motions that is, I submit, true to the rules and the ultimate purpose of them and if implemented, would reduce the airborne particulate matter I've been seeing lately.

First of all, I'll remind readers of the ideals of pleading. The rules require succinct statements of the facts showing each element of each, separately stated claim for relief. What is to be in the pleading, as everyone knows, is ultimate facts that give rise to a legal right. Pleadings are "statements of the facts and defenses." ORCP 13. ORCP 16 specifies "plain and concise statements in as far as practicable to a statement of a single set of circumstances... Each separate claim or defense shall be separately stated." ORCP 18 reiterates that each claim is a "plain and concise statement of the ultimate facts constituting a claim for relief," plus a demand for relief. The constant thread is that pleadings are spare, clear statements of the minimum that can be said, factually, to require (not merely permit) relief.

It is not just that the pleading has to have the statements that constitute the claim - furthermore, substantially nothing else should be in the complaint. ORCP 21E: "Upon motion made by a party...or upon the court's own initiative at any time, the court may order stricken (1) any sham, frivolous, or irrelevant pleading or defense or any pleading containing more than one claim or defense not separately stated; (2) any insufficient defense or any sham, frivolous, irrelevant, or redundant matter inserted in a pleading." By long practice matter that should be struck from a pleading includes mere conclusions of law and assertions that may be evidence of the existence of an ultimate fact but which do not unequivocally assert that ultimate fact. Please note: the court can strike such matter on its own motion and at any time - a power that has been rarely exercised but nevertheless is express in the rules.

The ultimate facts that constitute a claim are those factual circumstances that fit into the legal formula, A + B + C = D; where A, B, and C, are the ultimate facts, and D is the right to relief. If A, B, and C exist, then the plaintiff wins, and if any one of them is not found to exist, then the plaintiff loses. Therefore, specifying the ultimate facts to be litigated draws the lines in the sand for the controversy. That is what is being contested. That is what the trier of facts turns thumbs up, or thumbs down, on. You cannot plead mere evidence, from which A, B, and C might be - or might not be - deduced ("evidentiary facts"). You plead the facts that (if found to exist) compel a legal consequence.

Some lawyers struggle with the distinction between evidentiary and ultimate facts. In an automobile case, for instance, the ultimate fact is that the driver failed to maintain lookout and control, plaintiff's consequent damage was the natural and foreseeable consequence, and plaintiff was in fact injured as a result.

Mere evidence of the lack of lookout and control might include the evidence that the driver was texting his friend while driving. The jury does not conclude texting/not texting, however; the conclusion that the trier of fact reaches is whether, for that reason or any other the driver failed to maintain lookout and control.

If there is some question, then the following mind experiment can help: could the 'fact' be consistent with non-liability (for some reason other than the absence of another element of the claim)? If so, then it cannot be an ultimate fact. I was part of a discussion recently about the adequacy of a claim on an insurance policy. The complaint asserted that a certain person had not been seen or heard of for seven years. The claim was that that was a well-pleaded assertion of a right to recover insurance proceeds. It is not. Even though a presumption of death may be established by long, unexplained absence (it is evidence of death), it is the death of the insured and not the presumption of death that entitles the beneficiary to a recovery. What if, despite long absence, the insured person comes to attend trial? There would be a defense verdict. The presumption is merely a way to prove death; it is not death itself, and death itself is the ultimate fact to be proved.

The beauty of having pleadings that in a bare and concise way assert the ultimate facts requiring relief is that they are a roadmap to what is to be determined by the litigation. That in turn gives notice to other parties about where the goalposts are (or are asserted to be) and a measure to the court for discovery and for dispositive motions. The court, and the parties, know precisely the questions that are to be answered by the trier of fact or that, if concluded as a matter of law, compel the outcome. Further, if the pleader proceeds on a theory of fact that does not in law result in a right, that fatal deficiency is laid bare. Obviously, good pleadings can be exceedingly helpful in efficient conduct of trial preparation, early resolution of a dispute, and ultimate presentation of the case to the trier of fact.

Unfortunately, those helpful qualities can be defeated by poor pleading and motion practice aimed not at those salutary ends, but aimed at frustrating the same purposes.

Watch for Part 2 of this article in the March Multnomah Lawyer.