More Is Better

Recently, while in L.A. Superior Court on a demurrer hearing, I heard an exasperated judge pose this question: Why do you plaintiffs' lawyers think you have to plead so many different causes of action based on the same fact pattern?

The judge was struggling with a workload which included one 260-page complaint with 86 different causes of action. He pointed out the difference between contract and tort, and both theories just don't always apply. Moreover, he noted that not every different fact pattern necessarily must include every possible tort theory. Isn't one properly tailored theory good enough?

While I empathize with the bench's concern over the workload and agree that complaints should not go on and on, I want to assure the courts that we lawyers drafting complaints aren't simply hellbent on making specious arguments just to burden the judiciary. Indeed, plaintiffs' lawyers despise opposing demurrers; they're a lot of extra money, take a lot of time and slow down the process.

Some would argue that the primary beneficiaries of these multiclaim complaints are defense lawyers, whose firms are enriched significantly by multiple demurrer proceedings.

Here are some reasons why these complaints end up with so many theories.

Watch Your Back

The most obvious concern for plaintiffs' lawyers is avoiding malpractice suits, getting criticized or being paid by the client because some theory has not been pleaded. The courts have continued to expand and redefine various claims, reconsidered their import and so forth.

For example, where is Business & Professions Code Section 17200 going, anyway? It's not really the plaintiffs' lawyer's fault that this happens. It's just the natural and unpredictable progress of the law.

But the plaintiffs' lawyer doesn't want to be subject to the charge that he didn't plead a viable, or potentially viable, theory if the law changes and the case goes down the drain.

What's the Judge Going to Say?

Different judges have different philosophies on various theories. Since none of us can predict reliably even which judge we will receive, much less what that judge's pet peeve may be, we have to start by recognizing that we may lose a cause of action or two that we shouldn't lose, but that's the way it's going to be.

Inconsistency among the courts in rulings on some claims is not a new concept, and anyone who fails to take it into account deserves to be criticized. So, not knowing what the judge will do, plaintiffs' lawyers should at least take the broadest possible view, recognizing that some judges may knock out a cause of action or two.

But counsel may not be able to predict which causes of action annoy the judge the most.

An example is an interference with business advantage claim: I've seen some judges refuse to touch that claim, while other judges seem to be extremely annoyed whenever they see it. But since we don't know which judge we're going to get, we sure better plead it.

What's Going on Upstairs?

Sometimes, we recognize that the law is in flux and that some appellate court has or is expected to open up a theory that used to be closed. This sometimes happens in connection with claims against insurance companies and employment cases. The law's changes over the past years have been extraordinary. As a result, many attorneys plead a cause of action, expecting to lose it in demurrer or perhaps summary judgment but strategically guarding the assertions so they can revitalize that claim if suddenly the appellate or Supreme Court comes out with some new interpretation that allows a legitimate motion for reconsideration.

The defense frequently is aware of these changes in the law. Plaintiffs' lawyers have settled cases based on pleaded claims that were eliminated on demurrer because all counsel know that the law is in flux and a claim very well may come back.

Insurance, Insurance, Insurance

The existence of insurance is a critical factor in every lawsuit, and plaintiffs should take into account the extent to which they can tap into insurance.

In some instances, a plaintiff may choose to plead claims, knowing no carrier will ever agree to cover the suit. However, more frequently, plaintiffs' lawyers try to plead potentially covered claims. Indeed, some instances occur where several different types of policies may come into play, depending on how many different claims can be pleaded. Finally, a plaintiff may wish to create a conflict between the insured and insurance carrier or carriers by pleading some insured claims and some noninsured claims.

All of these strategies should be taken into account by plaintiffs' lawyers and are extremely material in setting up a case for settlement. However, in order to maximize certain kinds of insurance claims or perhaps certain kinds of conflicts, a plaintiffs' lawyer will have to plead some theories broadly, which may not fit perfectly into the fact pattern.

For example, infliction of emotional distress may bring into play one type of policy, while professional negligence may bring in a different policy. Circumstances exist where we need to take into account complicated sets of insurance exclusions. While these pleadings make the judge's job harder in the short run, they make it easier in the long run because the case can settle if a plaintiff properly sets up claims to involve insurance and therefore money is available to pay off the claim.

And What is the Law?

At times, plaintiffs' lawyers want to change or stretch legal principles to create new law and new theories, so we plead claims accordingly. A good plaintiffs' lawyer may be interested in this but would not plead only the claim which is debatable under existing law. Necessarily, we have to plead theories that will keep our case alive, in addition to perhaps a theory or two through which we are seeking to change the law.

This not only makes for interesting motion practice but also makes for a lot of work for everyone. However, I do believe that it keeps the law vital with plaintiffs pressing the envelope where appropriate.

What Happens Inside That Black Box?

It's not only judges but juries, too, who are frequently inscrutable. I once tried a case in front of one jury which returned a verdict on both negligent misrepresentation and breach of contract but found no breach of warranty. In that case, it was not possible to find a breach of express warranty and a breach of the contract.

I can't explain that verdict, but I do know that the jurors found a difference. Perhaps it was their way of splitting the baby, or perhaps there was a bias, or perhaps they didn't understand the jury instructions, or perhaps they know the law better than I do.

Whatever the reason, if the plaintiff has enough theories in the jury box, the odds increase that counsel hit the right theory with that particular group. It even allows those who feel badly about giving the plaintiff lots of money to throw the defense a bone.

What Are the Facts, Anyway?

It should come as no surprise to anyone that what we learn as "facts" from our clients at the start of the case are very different from the provable facts at the end of the case. I have represented many very honest people, but I don't think I have represented anyone who has explained everything to me at the beginning, no matter how hard I press them.

In discovery proceedings, particularly at certain depositions, you sure do learn the darndest things. Both on the plaintiff and the defense sides, I have been surprised at depositions when suddenly something comes out that I'd never heard before.

When you draft your complaint, you have to draft it broadly enough and with sufficient wiggle room so that, when you finally discover what the evidence really is, including all those little surprises, you can still fit the facts within one of your theories. We know that amendments are granted liberally, but it's more expensive to seek an amendment, and every once in awhile, a judge won't allow amendment. Counsel might even face a statute of limitations or laches argument under some circumstances.

The situation would be much better if, at the front end, when you draft your initial complaint, it is broad enough to take into account all those facts.