Tuesday, June 9, 2015

I've Got a Blank Space, Baby

Publishers offer form pleading books in many jurisdictions and a good number of courts and legal aid societies across the country have made form pleadings available for download on their websites. 

Forms pleadings are wonderful when you have no idea where to start. They can help you figure out how to structure the pleading and tell you the type of information that needs to be included. They are particularly good for young lawyers, lawyers developing new practice areas, and those newly admitted to unfamiliar jurisdictions.

But beware the pitfalls! Good practices when using form pleadings include:

Make sure your forms are up to date.

Forms change from time to time to reflect changes to the law. Make sure your forms are up to date. Spend the money every few years to update your forms book or electronic database subscription. If you’re trying to develop a new practice area, go to CLEs and take advantage of the forms that are often provided either in hard copy or electronically. Those forms are generally the most up to date and prepared by a lawyer or lawyers with at least some area of expertise in that area of practice.  

Check statutes and case law against forms.

You may be using a dated form that hasn’t been modified to comply with a new statute or recent case law. For example, in Georgia, lawyers are not to include full birth dates in public filings. New forms reflect this change, but old ones do not. This doesn’t seem like a big deal, but suppose a client sues you after her identity was stolen through a public filing that included her name, full date of birth, and address.

Similarly, forms may not reflect additional required filings, such as an attorney affidavit that must be filed with a motion for default. Your form book won’t necessarily tell you this, so you must check the appropriate statutes or consult a treatise to ensure you’ve done all that’s required.  

And check local rules.

Some courts and judges have local rules that can alter the information that must be included in or removed from pleadings. Even if you’ve practiced in a particular court or jurisdiction before, double check to see if your form needs to be changed to comply with local rules or if that court has an alternative form pleading the court requires or prefers.   

Don’t mindlessly follow the form. Amend if appropriate.

Think critically about whether all components of a form are applicable to your circumstance and amend the form if appropriate. Consider divorce forms, for example. Don’t include form language asking the court to divide the parties’ marital assets if they’ve already reached a settlement agreement that does so. Don’t use a form for a divorce with children if your client and his soon-to-be ex are childless. Will errors like these kill your client’s case? Probably not, but they’re embarrassing and can be confusing for the court and opposing party. Take a couple of minutes to think about what form language is—and isn’t—applicable.        


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