*If the term “notice of civil claim” doesn’t ring a bell, you probably don’t practise in BC. It’s our term for a statement of claim. We have a different format from other jurisdictions, but the basics are largely the same.
Do you remember the first time you had to draft an originating pleading? Intimidating, right? It was for me. I remember staring blankly at the screen, not sure where to start. With an office precedent? From scratch?
Inevitably I’d follow a circuitous route of doing a little research, then looking for a precedent, then trying to follow the precedent, then realizing the precedent was not great and looking for a different precedent, then re-reviewing the documents, then trying to draft...
You get the idea. It wasn’t the most efficient process.
Eventually, I figured out the importance of being methodical. When I break down the project into manageable steps, I’m faster and less overwhelmed.
Below I’ve set out my process for drafting a notice of civil claim. There are three main steps and a number of sub-steps. It may look onerous, but I promise, it’s faster and more enjoyable this way. If you’re a to-do list person like me, write down each step and check them off as you go along. You’ll feel like a superstar!
Step 1: figure out what needs to go in your pleading
It’s not time to start drafting yet. We’re just making rough notes at the moment. Sometimes I use a pen and paper for this step.
a. Figure out the claims you’re making and the remedies you want to seek
This might just be the most important step of the whole process. You need to figure out what claims you’re making and what remedies you want to seek.
Completeness is incredibly important when it comes to an originating pleading. You are creating a document that will define the scope of the litigation, including:
What documents and answers can be sought on discovery
What evidence can be adduced at trial
What remedies the court can grant
So, take care with this step. For all but the most basic of claims, you’ll probably need to do a combination of the following:
Discussion with the senior lawyer on the file
And don’t forget to think strategically. You may wish to include a claim that will entitle your client to wider discovery, or avoid one that will leave him or her open to questioning on a sensitive topic.
b. For every cause of action and remedy, jot down the legal elements
What elements must you prove in order to establish each cause of action? Jot those down for every cause of action. Do the same for every remedy you seek (most remedies won’t be too complex, though a remedy like a constructive trust may require some thought).
c. For every constituent element of your cause of action or remedy, jot down the material facts that support it
The heart of a pleading is the material facts. This is important. It will probably take a bit of time. Every notice of civil claim must contain a concise statement of the material facts in support of the claim. Go through your file and make sure you have a material fact supporting each element of each claim and remedy.
d. Figure out the parties
Don’t rush through this part. Carefully consider who to name as plaintiffs and defendants.
This will require you to consider the following questions:
Who has suffered a loss?
Who is potentially responsible?
Are any corporate searches required to determine the legal status of the parties?
Is it necessary to add a “John Doe” defendant because a party cannot be identified?
Is someone suing in a representative capacity?
Does someone require a litigation guardian?
Are there any statutory bars to naming a particular individual as a party? (E.g., in BC, the Local Government Act provides that a public officer is immune from suit unless dishonesty, gross negligence, malice, libel or slander is alleged. You’re opening yourself up to an application to strike if you name such a person as a defendant.)
e. Figure out if you need to plead any statutes
Ascertain whether you’re relying on a statute, and, if so, figure out the particular sections you wish to invoke. For example, are you seeking joint and several liability? You may need to plead the Negligence Act.
Step 2: bang out a first draft
Print out the notes you made in Step 1. Set them next to your keyboard. Open up a blank (yes, blank, not a precedent) document and start writing, being sure to include:
All the necessary parties;
A concise statement of the material facts;
The relief sought; and
A concise summary of the legal bases on which your client intends to rely, together with any applicable rule or statute (note that in Ontario, you’re not required to specifically name the legal claim or formula, though it’s often good practice to do so).
Try not to be a perfectionist here; you’ll get too bogged down. There’s lots of time for editing in Step 3. For now, just try to get something down on the page to cover off all your material facts, legal claims, and remedies.
As I write, I usually try to explain the claim chronologically, as a story. In other words, who are the parties, how did they come together, what happened, what is the legal effect, and how can it be remedied?
I also try to be persuasive, while avoiding hyperbole. One of the practical functions of pleadings is to provide an introduction of the case to the other side and the judge. Don’t shy away from a bit of rhetoric. I like what Mr. Justice Perell (then in practice at Weir & Foulds) had to say in “The Essentials of Pleading” (1995) 17 Advoc. Q. 205:
[M]any pleadings are written as if their sole purpose was to avoid an interlocutory motion leading to a summary judgment. A good pleading requires something more than substantive and technical competence. The practical pleader recognizes that delivering a pleading is an opportunity to communicate a message about the merits and justice of the client’s case and about the lack of merit and injustice of the other side.
Step 3: clean up your draft
Okay, you’re done drafting. That was quick, right? Now, onto something much easier - editing.
a. Look (just look) at precedents
This one may be a little controversial. I counsel looking at precedents only after you’ve written your own first draft. And never, ever use a precedent by modifying the original.
There are good reasons for this, particularly for more junior lawyers:
You’ll avoid unwittingly adopting someone else’s bad writing habits;
You’ll avoid the risk of accidentally including details from the previous file;
You’ll avoid the risk of missing a legal claim that might have been irrelevant to the previous action but is important to yours;
You won’t waste time wrestling with your facts to try to fit them within someone else’s writing structure; and
You’ll have the chance to create something even better!
That said, there’s nothing wrong with looking at precedents. They can be incredibly helpful, especially for students and more junior lawyers. They might alert you to something you’ve missed.
So go ahead and review your precedents, take what you like from them and edit your pleading accordingly.
Caveat: if you are the junior lawyer on a file and the senior gives you a precedent and tells you to follow it, you’d best do that instead. As always when you’re a junior lawyer, it’s important to know your audience.
b. Remove evidence, embarrassing allegations, or anything else that’s not supposed to go in a pleading
There are a number of things that shouldn’t be in a pleading. Your jurisdiction’s rules of court will give you a list.
In BC, it’s set out in Rule 3-7. I won’t reproduce the whole thing. Here are a few highlights:
Pleadings must not contain evidence.
The effect of any document or the purport of any conversation referred to in a pleading, if material, must be stated briefly and the precise words of the documents or conversation must not be stated, except insofar as those words are themselves material.
Conclusions of law can’t be pleaded without material facts to support them.
Full particulars must be provided if the pleading alleges misrepresentation, fraud, breach of trust, wilful default or undue influence. Libel and slander also require particulars, such as the specific words complained of.
Take a look, also, at the rule for striking pleadings. In BC, that’s rule 9-5(1). It provides that the court may strike out a pleading on the basis that:
It discloses no reasonable claim (if you’ve gone through Step 1 carefully, you should be good here);
It is unnecessary, scandalous, frivolous or vexatious or may prejudice, embarrass or delay the fair trial of the proceeding (i.e., completely irrelevant and only designed to make the other side look bad);
It is otherwise an abuse of process of the court (i.e., your claim or issue has already been determined by a competent court).
c. Edit for style
Now that you’ve included everything you need to include and excluded everything you need to exclude, it’s time to go back and make sure your pleading is clear and readable.
Due to the constraints inherent in the rules of pleading, it can be difficult to turn a notice of civil claim into a beautiful piece of legal writing. However, clarity remains important. Here are a few tips for a well-written pleading:
Use headings - Headings are absolutely appropriate in a pleading. They help orient the reader and make your pleading easier to digest. I try to write my headings in neutral language so that the defendant can follow them if they’re so inclined (which, in turn, will make it easier for a judge who is reading the two documents).
Don’t use unnecessary legal jargon - Pleadings tend to contain a lot of legal jargon. Not all of it is inappropriate, but you definitely don’t need phrases like this:
“The plaintiff states, and the fact is, that…"
“The plaintiff pleads that…"
Be careful about how you identify the parties - A little story. In one of the first cases I ever worked on, as an articling student, our client was a numbered company. Let’s say its name was 1234567 Ontario Inc. Recognizing that this was a mouthful, I decided to make it a defined term and give it a shortened name. Guess which short form I chose? “1234567". Yep, just a string of numbers. This escaped the notice of the partner on the file, but not opposing counsel. I recall him making submissions on one occasion and every time he referred to our client, he would say, in a withering voice, the whole darned seven-digit sequence. I distinctly remember my earlobes turning red. So, don’t do that! If you are going to define the parties’ names, choose something that’s short on paper and out loud. Most people will tell you not to refer to the parties as “plaintiff” or “defendant”, though sometimes it makes sense if a party’s name is long or complicated and difficult to shorten. Finally, if you do use defined terms, make sure they’re consistent throughout the document.
d. Leave it for a little while
This one’s optional. It requires the luxury of time.
Once you’ve finalized what feels like the perfect draft, leave it a day or two. When you come back, read it over with the following points in mind:
How will the defendants and their counsel view it when it first arrives on their desks?
How will a judge view it as an initial introduction to the case?
How may it affect discoveries and the introduction of evidence at trial?
How may it affect the remedies granted at trial?
This read-through doesn’t need to take more than 20 minutes, but it can be immensely helpful.
So there it is! My three (okay, ten) easy (okay, easy-ish) steps to drafting a notice of civil claim. Comment below if you have something to add!