Here are some things to think about concerning the reading on drafting a complaint.

1) What purposes do you think a complaint serves? What purpose does it serve when  it is handed (with a summons) to the defendant? What purpose does it serve when the defendant answers the factual allegations in the complaint (by admitting them, denying them, or denying knowledge concerning them)? How can litigation be terminated before discovery and trial by means of a complaint and answer? What purpose does a complaint, with the defendant's answer, serve during discovery? During trial?

2) Why are the standards for drafting a complaint in Fed. R. Civ. P. 8(a) so generous to the plaintiff? Isn't this an invitation to frivolous litigation? What, exactly, is frivolous litigation anyway? Are there different ways that an action can be frivolous?

3) Does a plaintiff have to offer evidence for his factual allegations in his complaint? Look at Form 11. Is there any discussion of the evidence the plaintiff has for his factual allegations?

4) How might more stringent standards for drafting a complaint be used to weed out frivolous actions?

5) Be familiar with the distinction between elements of a cause of action and affirmative defenses.

6) Consider the following three ways that a complaint might be deficient:

a) the plaintiff fails to allege facts that add up to a cause of action (that is, the plaintiff fails to state a claim)
b) the plaintiff states a claim but fails to allege facts with sufficient specificity even to satisfy R. 8(a) 
c) the plaintiff states a claim and alleges facts with sufficient specificity to satisfy R. 8(a) but has insufficient evidence in favor of his factual allegations to justify goimng forward with the case.

Questions on Sierocinski

7) Look at Sierocinski's complaint carefully in the light of the particularity requirements of Rule 8(a). Try to figure out why each sentence was included. Does he say more than he needs to?

8) Try to figure out what the elements of a cause of action for negligence are on the basis of the Sierocinski's complaint.

9) Look at Form 11. Notice that all the complaint says is that the defendant "negligently drove a motor vehicle against the plaintiff." Is it always enough simply to allege that the defendant  acted "negligently" in order to satisfy Rule 8(a)? Can you think of examples where more detailed allegations of why the defendant acted negligently - the way his action was negligent - would be needed in order to satisfy the particularity requirements in 8(a)?

9a) Is Biddle right that the problem with the defendant's argument is that he wants evidence from the plaintiff and that evidence is something that is offered (under the Federal Rules) only after the pleading period? Is there another way of interpreting the defendant's argument?

10) Does the fact that the Sierocinski's allegation of negligence subsequently was determined to be without any evidence in its favor (by the Court of Appeals) mean that Judge Biddle decided the Siercocinski case wrongly?

11) Why is it dangerous to plead more than you have to? Why do plaintiffs do it anyway?

12) Think through the arguments in favor and against greater specificity in a complaint.

Questions about Twombly & Iqbal

13) Compare Twombly and Seirocinski. Couldn't the same thing that was said about the plaintiffs' complaint in Twombly also be said about Seirocinski's complaint? Wasn't the fact that the the cap exploded like parallelism in Twombly: evidence (in Seirocinski of negligence, in Twombly of an agreement to restrain trade), but not sufficient evidence on its own? If they are similar, doesn't the fact that Seirocinski's complaint was adequate suggest that something is going very wrong in Souter's opinion in Twombly?

14) There are (at least) three ways that one might think a complaint is defective. The first is that the complaint is insufficiently particular to adequately notify the defendant of what the action is about. This is supposed to be what R 8(a) is about. The second is that the complaint is adequately particular, but it fails to state a claim, because what is alleged fails to add up to a violation of the law. This is supposed to be what R 12(b)(6) is about. The third is that the complaint indicates that it does not have enough evidence standing behind it to succeed at trial. Is there a Fed. R. Civ. P. that addresses that? Which of the three defects is Twombly about?

15) Isn't it the case that Twombly/Iqbal have amended the federal rules by judicial interpretation? Is it OK that the federal rules have been amended by interpretation, since they are created by the Supreme Court anyway?

16) The Seventh Amendment says, "In Suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved..." The Twombly case was a suit at common law and the value in controversy was more than twenty dollars. Doesn't Souter's standard in Twombly therefore violate the Seventh Amendment?

18) Shouldn't all of this be handled by Rule 11? Isn't sanctioning lawsuits that turn out to be frivolous the best solution, rather than using pleading standards to weed them out ex ante?

19) Can the plaintiffs in the Twombly case try suing the same defendants again with a better complaint?

20) Couldn't the problem that Twombly seeks to solve be handled instead by focused discovery - for example discovery solely concerning whether there was an agreement among the telecoms?

21) Think of the three defects mentioned in Q14 above. Which is at issue in Iqbal?

22) Iqbal makes it (relatively) clear that the Twombly standard applies to all pleadings governed by R 8(a). But do you really think that run of the mill negligence cases like Seirocinski will be treated differently now than they would have before Twiqbal? Wasn't there something distinctive about both Twombly and Iqbal that makes them unusual cases, where heightened pleading standards might be advisable? Does it make sense to have one rule - like R 8(a) for a wide range of cases?