This blog is a discussion based on a key training video titled “#VinnyUniversity Drafting Complaints 101.” While it serves as a response to the concerns and questions of one of our clients, the video specifically aims to inform and enlighten you about why we, here at Miletti Law®, draft complaints the way we do, the rationale, and the thought process behind it. In other words, it is generally intended for those clients who are more analytical and inquisitive, those who like “testing the waters” beforehand, and those who have questions about why and how we do what we do. In this regard, it is designed to be informative, and while we understand that every client and case is different, the video does a good job of explaining the rationale and thought process behind it.
By way of backdrop, if you have ever interacted with Mr. Vinny, Esq., you may have an idea about how personalized and aggressive he is at what he does best, especially in preparing legal documents that go hand in hand with providing personalized services and experience to every client.
That being said, let us boil down to it!
So, the elephant in the room is – Why do we draft “Complaints” the way we do?
For starters, what is a COMPLAINT? In simple terms, while filed with courts, whether state or federal, a complaint is a formal document prepared by an attorney as a pleading that commences an action and initiates a lawsuit. It is crucial to mention that while they are subject to jurisdictional requirements, complaints generally set forth the complainant’s cause of action (allegations) and demand for judicial relief, among other things. For instance, while Miletti Law® operates in New York and New Jersey, we find that the latter has additional nuances that clients should be aware of. For the purposes of record, we are exclusively going to dwell on New York as a jurisdiction, i.e., the State Court and New York courts in the five boroughs and other counties and areas of the greater New York State.
Technically speaking, while still remaining compliant with jurisdictional requirements, Vinny has a customized technique of preparing and drafting complaints, which follow a linear fashion and usually have several sections, as discussed below. As noted earlier, cases are different and, therefore, while they follow a similar layout, depending on jurisdictional requirements, some complaints may vary when it comes to sections, length, and format. Please take note of the complaint of an employment discrimination case that Vinny uses as the draft template or model to explain why we prepare complaints the way we do. In fact, it is the model we would use to draft a complaint concerning such an employment issue or others, such as harassment and retaliation.
Terminologies & Sections
Preliminary Statement
Usually, a “Preliminary Statement,” which is basically a summary of the complaint, is the first section. In Vinny’s opinion, this section should be prepared last, and while it should include precise details of the case, it should be enticing and very straightforward to directly inform the reader, whether the Judge or Clerk of the Court, what the issue at hand is. Vinny also believes that although it should maintain some degree of formality, this section should be interesting and captivating to read. After all, we are dealing with human beings, and a judge or clerk is definitely one.
Parties
Parties are the individuals/entities involved in a particular case. Parties in a complaint include plaintiff(s) and defendant(s).
1. Plaintiff
When it comes to terminologies in a complaint, it is very important to identify the “Plaintiff.” While he/she or it (in case it’s an entity) can go by the name “Petitioner” or “Complainant,” the plaintiff is the party bringing a case against another party (who will then be the Defendant) in a court of law. In case you have more than one plaintiff, then they should be mentioned under this section, including their names, addresses, and if the particular court has the power to hear the case involving them.
2. Defendant
The “Defendant,” who may also go by the name “Respondent,” is the individual or entity being accused or sued in a court of law. Similarly, if there is more than one defendant, then they should be mentioned under this section, including their names, addresses, and if the particular court has the power to hear the case involving them.
Jurisdiction & Venue
On the one hand, jurisdiction entails the state and the court that the plaintiff(s) have filed their lawsuit. For instance, the New York State Human Rights Law (NYSHRL) is a law applicable in the state of New York, and, therefore, New York is the jurisdiction where the law applies. This means that if a party brings a claim under the NYSHRL, they should bring their claim to the state of New York and a court within this jurisdiction. However, for the law to apply to them, the plaintiff should also reside, work, or operate a business in the state where the event giving rise to the lawsuit, such as discrimination, took place.
On the other hand, venue refers to the county where the plaintiff files their action. For instance, New York has several counties; therefore; therefore, the specific county where the action has been filed and the hearing will take place is the proper venue.
Factual Allegations
This is the one section of a complaint where Vinny uses a very specific and customized method – a linear or timelined sort of arrangement. For instance, this happened on this date and at this time, where applicable. Then, this or that happened on this date and at this time. Here, it is very crucial to be as specific as possible, which means that the plaintiff has to do their best to remember what exactly happened, on what day, and probably at what time. When did this start, and for how long did it continue?
Here, you may agree with us that very specific information is a key pillar to a strong case. You would want your case to create an impact head-on, such that the reader will have no choice but to pay attention and, accordingly, empathize with you right from the start. While precision is important, you need to have a catch-all paragraph such that the judge will not have to review your complaint every time to confirm your factual allegations. The point is that you are creating a precise and sleek structure that anyone can easily follow and understand every time your case is being reviewed. It should be something like what Vinny usually likes referring to as a script for Netflix!
Causes of Action
Generally, the causes of action comprise a set of legal theories and facts that the complainant uses to argue that their claim is enforceable in a court. Here, you must state the specific law you are citing to, and that forms the basis of your lawsuit. Usually, this section is divided into paragraphs, and each states a single cause of action.
For instance, the first paragraph could state that the plaintiff alleges everything previously. The second and third paragraphs could state that the plaintiff was the “employee” pursuant to this statute and the defendant was the “employer” pursuant to this statute, respectively. The fourth could state that you suffered an adverse act, such as discrimination in our case, which caused you damages, but which you should not have based on a protected category, such as color, age, or race, pursuant to this statute.
After that, you outline the elements of discrimination aligned with the specific facts. For instance, as stated previously, the client/claimant meets all the facts here such that he/she (1) was an employee (able, willing, and ready to work), (2) suffered discrimination when wrongful acts were taken against him/her, (3) was terminated or retaliated against, (4) suffered these damages. At this point, the elements are repeated while being tied to your claim.
Finally, you finish off with some sort of a templated paragraph, which will be a repetition of the first cause of action, stating that due to the direct and proximate damages suffered as a result of the adverse/wrongful acts stated above and that give rise to employment discrimination, the claimant continues to suffer additional damages to this day and, therefore, seeks this or that relief.
Then move back to your second and third causes of action, such that you will be building your case piece by piece, block by block, and bit by bit in a streamlined linear fashion. With every cause of action, you are outlining the elements of your issue, such as discrimination, as an example, while expressing and showing proof of how they align with your case and, eventually, how the damage(s) occurred. The same linear structure should appear over and over again, which would help you survive some kind of dismissal or pre-enter motion (explained in a later video) at the very start of your lawsuit.
Arguably, while you do not need to have all your facts stated in the complaint (you might not even have half of them until discovery), you do not have to prove everything in what would be termed a perfect sense. However, you cannot afford to present a gobbledygook complaint that bores the reader head-on.
Prayer for Relief
This is the next section of a complaint that expresses how you would want the court to help or what it should do (enforce) and, therefore, grant you relief. Usually, it is the court’s discretion to provide relief. However, should you prevail, then a court may grant injunctive relief (serve the employer with an injunction requiring them to cease and desist from certain behavior) or even require the employer to pay any back pay, front pay, overtime pay, or consequential damages (additional damages suffered as a result of the initial adverse event suffered), whichever is the applicable depending on your case.
Jury Demand
Lastly, while some attorneys do it while others do not, Vinny always insists on adding “Jury Demand” as the last section. Here, the attorney, as the legal representative, would enforce their client’s case by saying that the plaintiff, hereby, demands a jury trial to discuss all the damages herein.
Signature & Verification Page
Then, finally, you have your signature in line with the legal requirements of your jurisdiction. As a by the way, Vinny also likes adding what is known as a verification page for the purposes of verification, as the term suggests. The reason behind having this page is because historically and based on years of experience, we have found that as an attorney, even though an affirmation is supposedly appropriate for the purposes of discussing a plaintiff’s claim, such that you affirm the facts as true and correct because your client has walked you through them, has provided you with all information and evidential material, such as emails, text messages, or pay stubs, you need, alas, courts do not give a damn!
Whenever they can, courts will often argue that while it is great that you are an attorney and you have presented a great and lovable affirmation, you are not a firsthand person, and, therefore, it is not going to work because you cannot testify to anything. Courts require something, such as an affidavit, which has been attested and affirmed to, discussed, disclosed, and declared by the plaintiff himself/herself.
In light of these issues, a verification page (which verifies the complaint) serves almost the same function, such that the court will review and accept the complaint as if its contents were disclosed and declared by the plaintiff himself/herself. Therefore, as a best practice, we like to present the court with a verified complaint and verified answer for that matter.
As a recap, and as mentioned earlier, the preliminary statement comes as the first section, but should be prepared last because it is basically a summary of the complaint. However, it is crucial to bear in mind that while it should precisely summarize the complaint, it should draw attention, be enticing, and be very straightforward to directly inform the reader, whether the Judge or Clerk of the Court, what the issue at hand is.
Hurrah‼ If you follow us on YouTube, you may notice that the video upon which this blog has been created is a bit longer than the others created before. However, this length was due to the need to be thorough and exhaustive as we answered why we, here at Miletti Law®, draft complaints the way we do, the rationale, and the thought process behind it.
While everyone likes watching 3-minute videos, we would highly appreciate it if you took a few minutes (hell, more than 3) to watch the Video and get it yourself directly from the horse’s mouth. Otherwise, in case you need further clarification regarding the information shared in the video and this blog, we are just a call or email away!
As we continue dropping knowledge bombs every day, stay tuned for more educational videos, inspiring training, & legal advice. As usual, stay tuned for more legal guidance, training, and education.
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Always rising above the bar,
Isaac T.,
Legal Writer, Author, & Publisher.