THE IMPORTANCE OF WORKING YOUR THEORY INTO THE PLEADINGS
A. INTRODUCTION Since the amendments
to the Judicature Act, approximately
125 years ago, when the rules and forms related to pleadings were overhauled,
there has been very little written about pleadings
[1]
. This may be because there is little to
be said, or as is more likely, because practitioners see pleadings as cause
of action specific, where form triumphs over substance. Once the elements of the cause of action are established and
the general rules of pleading have been followed, most practitioners believe
that the drafting is at an end. The
goal of this paper is to demonstrate that there is much more to be said in
a pleading. The pleading is one of the most important
documents that you will prepare. It
should be more than a bare recitation of the relief claimed and the material
facts that ground the cause or causes of action. The pleading
[2]
should be viewed as a persuasive document that captures
and projects the essence of the dispute.
For the pleading
is the one document that is used at every stage of the action and which
will repeatedly be referred to by the court. Initially, it defines
the issues and establishes the factual and legal foundation for the
action. The facts and issues as pleaded govern
production and discovery. The
pleading may be the only document available for interlocutory motions. For instance, on refusals motions, the
pleadings will determine the relevance of questions and documents. Motions for summary judgment can succeed
or fail based on the case as pleaded. If
the action proceeds to trial, the first exposure the trial judge will
have is the pleading.
Originally,
pleadings were oral
[3]
. The parties would literally state their
case and the judge would then delineate the issues to be determined. This procedure had its obvious drawbacks. In Gulliver's
Travels, Jonathan Swift observed that one could not help but feel that
the element of surprise was the essence of the whole litigation process. The goal was ambush
[4]
. The oral tradition has been replaced
by a written one, which has evolved into today's paper heavy battles.
The importance
of a pleading that clearly describes the theory of the case has never
been more important than it is today. The
focus of our system is judicial management and efficiency. Because of demands on the judiciary, the best way to ensure
that the court understands and is sensitive to your case is to make
your pleading clear and articulate, directed to a persuasive theory.
The pleading
is a marketing tool. The
target is the court. The
goal is to sell your theory. The
pleading must tell a simple and logical story, setting forth the theory
that will persuade the court to help your client. You
know that you have succeeded when the court adopts your theory and
your language into its Reasons for Decision.
B. WHAT
IS THE THEORY? Mauet, in Fundamentals
of Trial Techniques, defined the theory of the case as: A
theory of the case is simply your position and approach, to all the
undisputed and disputed evidence, which will be presented at trial. You must integrate the undisputed facts
with your version of the disputed facts to create a cohesive, logical
position at trial. That
position must remain consistent during each phase of the trial. At
the conclusion of the trial your position must be the more plausible
explanation of what really happened to the jury.
[5]
Lubet, in Modern
Trial Advocacy, stated: "A theory of the case should be expressed in a single
paragraph that combines an account of facts and the law in such a way
as to lead to the conclusion that your client must win.
[6]
"
However, developing
your theory should not wait until trial. It must begin with the originating document – the pleading.
Your theory underscores the entire case. It,
therefore, must be developed at the beginning. In
order to understand how to develop the theory into the pleading, it
is first necessary to understand what is the purpose of pleadings.
C. THE
PURPOSE OF PLEADINGS
The primary
purposes of the pleading may be stated as follows:
a.
To define with clarity and precision the issues or questions
of fact and law which are in dispute between the parties and that are
to be decided by the court;
b.
To provide the opposite party fair and proper notice of the
case that it has to meet;
c.
To provide a permanent record of the issues and questions
raised and to be decided in the action so as to prevent future litigation
upon issues already adjudicated upon between the parties or those persons
privy to them;
d.
To limit the ambit and range of documentary discovery;
e.
To limit the ambit and range of oral examination for discovery;
f.
To allow for the determination as to whether a reasonable
cause of action or defence is disclosed;
g.
To fix the burden of proof;
h.
To provide a measure for the court to compare the evidence
adduced by a party with the case which has been pleaded;
i.
To determine the range of admissible evidence which the party
is entitled to adduce at the trial; and,
j.
To advise of the relief being requested
[7]
. Not only must
your pleading do all that, but it also provides the opportunity to
integrate your theory of the case. By
setting out the facts and the legal basis for the relief claimed in
a cohesive manner, you can market the "more plausible explanation
of what really happened" to the court.
D. HOW
TO DEVELOP THE THEORY INTO YOUR PLEADINGS Chances are
you know very little, if anything, about the facts in dispute when
you are first retained. The
temptation, for counsel and client, is to obtain the basic facts, draft
a quick pleading and issue it. This
approach is cost effective. However,
it is a sacrifice at the expense of a complete understanding of the
case and, most importantly, the development of your theory.
But how do you
develop and work your theory into the pleading?
Before you even
begin to draft your pleading, you must gather as much information as
possible from your client. In
doing so, do not be afraid to cross-examine your own client. If there is an important fact, either helpful or unhelpful,
you want to know about it before you commit to a theory in the pleading,
rather than after. Once
you have the information, take the time to interview witnesses. Obtain witness statements if possible. There is no such thing as too much information or too much
confidence in the credibility of that information as the underlying
foundation for your pleading. You
must answer the following questions: What
happened? Why did it happen? What approach explains your client's conduct? What approach explains the other party's
conduct? Why does that
suggest your client should win?
A factual chronology
of all events and documents must be prepared. Only by walking through the facts, good
and bad, in chronological order will you appreciate how the events
transpired to bring the client to your office. The
chronology not only assists in developing the theory, it will form
the factual structure of the pleading.
[8]
The next step
is to analyze the facts and identify available causes of action. Do your legal research now. Do not issue a pleading without knowing
the law. It is impossible
to develop your theory if you do not know the applicable law.
When analyzing
the facts separate the “undisputed good facts” from the “undisputed
bad facts” and the “disputed good facts” from the “disputed bad facts”. Remember that it is essential that the
theory be consistent with all of the facts, good and bad. Acknowledging and working with the bad
facts from the outset will ensure that your theory remains credible
and persuasive, and explains or puts those bad facts into context.
Where there
are numerous disputed facts and issues, it may be helpful to prepare
a “Scott Schedule”.
[9]
Such a chart sets out the items in dispute
and each party's position. This
schedule can assist in analyzing each party's position and may be useful
at any attendance before the court.
As
part of this process, you must always have in mind your client's objective,
articulate her objective and canvass all possible available remedies
or results.
In
developing a theory, regard should be had to the following principles:
·
Comprehensive - The theory
must be comprehensive so that it addresses both the strengths and weaknesses,
consistencies and inconsistencies as well as each fact, witness document,
piece of physical evidence and principles of substantive procedural and
evidentiary law of the case.
[10]
·
Theme - Lubet says: "Just
as your theory must appeal to logic, your theme must appeal to moral
force. A logical theory
tells the trier of fact the reason why your verdict must be entered. In other words, your theme - best presented in a single sentence
- justifies the morality of your theory and appeals to the justice
of the case"
[11]
. The theme captures
the most persuasive arguments and may be expressed through statements,
phrases or words that capture key images that may be strategically
repeated during the course of the trial. The
theme is the case's mantra.
·
Consistency – Consistency
requires that the party's theory be resilient enough to avoid the microscope
through which the evidence will be viewed.
·
Plausibility – The theory
must pass the “straight face test”. It
must remain plausible with the trier of fact's belief about how people
act and how the world operates. It
should address issues of credibility. It
should respect the emotional nature of human decision making to include
feelings, such as sympathy, rage and fear as well as a sense of fairness
and justice. An implausible
theory offers explanations that are illogical and improbable or simply
silly.
·
Legal Structure – It
requires you to analyze and evaluate the legal authority and identify
legal issues so that you may assess and justify the relative merits of
alternative or competing legal positions.
·
Accountability – The theory
must confront its weaknesses and admit its deficiencies. A sound theory does not rest upon
assertions not clearly provable nor contest those that are uncontestable. A reasonable theory admits its weaknesses
and turns them into strengths. A
successful theory accounts for all facts and explains them in an accurate
and honest way.
·
Congeniality – Congeniality
suggests that you select the least disagreeable explanation available. For
example, a defence theory that suggests that a mistake was made as opposed
to someone acting negligently or foolishly would have a more sympathetic
appeal.
·
Simplicity – A simply
theory is one that may be presented as succinctly and persuasively as
possible, regardless of the volume or complexity of the evidence. Simplicity requires clarity in both presentation
and in an explanation of the law. It
requires the use of simple language and simple sentence structure. The case should be broken down into its
basic elements so that any complexity can easily be explained by an understanding
of each of its parts.
·
Community – The social
setting in which the case is to be tried must be respected. Moral values and public perceptions help
shape a case for the fact finder and of course are even more important
in jury trials.
·
Flexibility – The theory
usually results from painstaking attention to detail, meticulous preparation
and a thorough understanding of the facts and the legal issues. But trial practice has taught that flexibility
and adjustment are essential. A
theory should be sufficiently adaptable to accommodate an unfavourable
evidentiary decision that compromises at least a portion of the theory. A theory should not rely on misstatements,
mischaracterizations, misrepresentations or misconduct.
After articulating
your theory, a good next step is to prepare your closing argument for
trial before you begin drafting your pleadings. This process allows you to “put together” all your analyses. You can choose the language to be used
in the pleading that supports your theory.
Just before drafting the pleading,
there is one last question you should ask: How much of your theory
should you reveal in the pleading? There
is no easy answer. It
may be that your client does not have enough information at this time
to formulate a coherent theory for the pleading. While
you may have a general idea of the nature of the claim, you cannot
predict what documents, evidence or position the opposite party will
take. The best course of action is to
have a theory that is broad enough to encompass potential positions
of the defendant. That requires a careful analysis of the
various alternative possibilities. However,
it is better to go through this while drafting the pleading before
much time and energy have been expended on a theory that will never
succeed.
E. DRAFTING THE PLEADINGBefore writing
anything, prepare an outline using the following headings:
a.
the relief claimed;
b.
the parties;
c.
the material facts;
d.
why your client is entitled to the relief claimed; and,
e.
remedies.
You can then
develop your theory under each of these headings. ExampleWe will use the following fact situation:
The plaintiff
enters into a contract on August 1, 1999 with the defendant for the
supply of 1000 widgets. The
plaintiff manufactures computers. The
defendant is the only supplier of widgets in Canada. The
widgets are essential components of the computer. The defendant was to deliver the widgets
by December 1, 1999. The
defendant did not deliver the widgets by December 1, 1999, with the
result that the plaintiff cannot deliver the new computers in time
for January 1, 2000. The defendant knows that the plaintiff
needs the widgets by December 1, 1999 in order to manufacture new computers
that are Y2K compliant. The
defendants know that the plaintiff cannot obtain the widgets anywhere
else. The plaintiff knows that the defendant
may be merging with another company that manufacturers the same computers
as the plaintiff. The
theory is that the defendant purposefully failed to deliver the widgets
by December 1, 1999, knowing that the plaintiff could not deliver the
computers by January 1, 2000 because it could not get the widgets anywhere
else. 1. Relief
Claimed In the relief claimed you could
simply state: "The plaintiff
claims: a. $1,000,000.00
in damages"
While
this says that your client wants $1,000,000.00, it does not provide
any other information.
More
persuasive is this: “The plaintiff
claims:
a.
$1,000,000.00 in damages as a result of the defendant's breach
of an agreement dated August 1, 1999 to supply 1000 widgets to the plaintiff by December
1, 1999 (the "Agreement")
[12]
Immediately
the reader knows part of your theory; there has been a breach of an
agreement by the defendant to supply widgets. From that point on, the
reader will know that the case is about a breach of contract. The
reader also knows that the date of December 1, 1999 is important.
2. Parties An explanation describing the parties
comes after the prayer for relief. No
matter if there are two parties or twelve, you want to describe the
parties in a way that advances the theory of the case. Frequently, we take the easy way
out and simply define the parties as follows: "1. The plaintiff
is a corporation incorporated pursuant to the laws of Ontario with
its head office in Toronto (the "Purchaser").
2. The
defendant is a corporation incorporated pursuant to the laws of Ontario
with its head office in Mississauga (the "Vendor")”
While this establishes who the
parties are and that they are legal entities, it provides absolutely
no real information and does nothing to advance your theory. Instead, try this: "1. The plaintiff,
a corporation incorporated pursuant to the laws of Ontario, manufactures
computers from its plant in Toronto (the "Purchaser"). 2. The
defendant, a corporation incorporated pursuant to the laws of Ontario,
is the only supplier of the widgets that are used in the plaintiff's
computers in Canada (the "Vendor")." In
this version, not only have you provided more information to the reader,
but you have also furthered your theory by establishing the connection
between the plaintiff and the defendant, and the plaintiff's reliance
on the defendant for widgets. A
caveat: these two paragraphs offend the general rule of "one
thought per paragraph", however, it can be useful to develop the
theory and is permissible where you know the facts to be undisputed. While
our example only involves two parties, often the situation is more
complicated. Part of the
development of your theory is an identification of who are necessary
parties to the action. It is important that all necessary parties
be added. For instance,
where a 50% shareholder brings proceedings against his co-shareholder
to wind up the corporation, both the co-shareholder and the corporation
are necessary parties. However,
there is a condition. Adding
a party simply for atmosphere or embarrassment will not be permitted.
[13]
Likewise, making allegations in the pleading
against a non-party will also be struck.
[14]
3. Material
Facts It is here that you can do the
most to advance your theory in the pleading. A
pleading must inform as to the particular issues toward which proof
must be directed. This
requires that the material facts be provided persuasively. Failure
to do so will lead to either a pleading being struck or particulars
being ordered.
[15]
On
the other hand, on a strict reading of Rule 25.06(1) the pleading “shall
contain a concise statement of material facts in which the party relies
for the claim or defence, but not the evidence by
which those facts are duly proved”. The
restriction on pleading evidence would appear to limit the ability
to "market the theory". However,
this does not need to be the case. The
first part of Rule 25.06(1) does refer to the minimum requirement of
a pleading, that is, a concise statement of material facts, but it
does not limit the ambit of “material facts”. In
fact, the only limiting factor is that “the evidence by which those
facts are to be proved” is not to be pleaded.
[16]
The temptation to plead evidence
to provide a persuasive context or create atmosphere is strong.
[17]
The difference between materials facts
and evidence is a paper unto itself. Master
Sandler in Copland v. Commodore Business
Machines Limited,
[18]
an oft cited case, discusses the difficulty in distinguishing
between material facts and evidence and soundly suggests that regard be had
to texts such as Bullen & Leake and the rules of pleading in order to
determine what elements must be pleaded for a specific cause of action. The
litmus test to determine between a material fact or evidence is “do
I need this "fact" to support my cause of action either in
terms of liability or damages?” Any
fact which a party must prove at trial is relevant and therefore material,
and ought to be pleaded even though it may relate only to the quantum
of damages or the type of relief claimed.
[19]
“Material” has been said to be a fact necessary for the
purpose of formulating a complete cause of action or a full defence.
[20]
[21]
Notwithstanding these limitations,
there are techniques that can be used to develop your theory without
offending the Rules of Pleading set out in the Rules of Civil Procedure.
Organization To ensure that
the court quickly understands your theory, organize the material facts
of the pleading in a logical and coherent way. Most
stories, especially where the reader is reading it for the first time,
are best told chronologically. A
pleading that is disorganized and jumbled may still contain all the
elements required for the pleading, but it will not be persuasive.
For instance,
in our example, it would be confusing to begin the recitation of material
facts with the fact that the defendant did not deliver the widgets
and then jump to the fact that an agreement was made between the plaintiff
and the defendant.
Instead, start
with the first fact: that is, that the plaintiff and the defendant
entered into an agreement on August 1, 1999.
Organization
is key; the reader should not have to look for the theory. This is not a hide and seek exercise. Nor should it be a return to trial by
ambush and surprise. Remember,
if you attempt to make the theory so obscure or ambiguous so that your
opponent will not "catch on", chances on the court will not "catch
on" either.
Defined
Terms Defined terms
are invaluable tools to market your theory. Defined
terms avoid needless repetition and therefore make the pleading easier
to read. The Honourable Madam Justice Lang recently commented on defined
terms in Toronto-Dominion Bank
v. Leigh Instruments Ltd.
[22]
and again in Sun
Life Assurance Co. of Canda v. 401700 Ontario Ltd.
[23]
In using defined
terms it is important to be consistent; failure to do so will not only
be confusing but can also be a defect that can invite a motion to strike
and require amendment.
[24]
In our example,
you would not repeat "the agreement entered into between the plaintiff
and the defendant on August 1, 1999". Instead, this collection of words should be defined as the "Agreement".
There is a caveat
to the use of defined terms. One
must be careful not to be too descriptive. Inflammatory
terms and language is liable to be struck thereby leaving holes in
your pleading and making it more difficult to understand. As well, defined terms that draw the
very conclusion that is domain of the trier of fact will be struck. For instance, "informed purchases"
[25]
, "honest employees"
[26]
and "conspicuous"
[27]
have been struck.
Catch
Phrases Catch phrases
can be descriptive and help advance your client's theory. For instance, if your client's facts
suggest that there were several agreements, that taken together formed
the basis for a distribution relationship between it and the defendant,
then define those agreements and that relationship as the "Overall
Agreement". This term may then be repeated throughout
the pleading. When you
use this term consistently, the trier of fact will hopefully identify
with the term and adopt the underlying premise. The
repeated use of the term reinforces your theory that the relationship
is more than one single agreement and defines the nature of the relationship
as one of distribution. Spend time creating and developing descriptive
catch phrases and terms that are the foundation of your theory and
that you will use throughout the litigation.
Headings Headings are
much more than simply an organizational tool. They
are extremely useful in developing a theory, especially in pleadings
where the parties are numerous and the issues and facts are complicated. Headings
provide a road map for the reader. Headings
are not formally part of the pleading i.e. they do not need to be admitted
or denied. Look at them
as a bridging or transitional question. Headings
must guide the reader as to the purpose of the next section.
Headings should
be descriptive and should highlight elements of the theory. A defined
term, or catch phrase can be used. Well-organized
headings are similar to an index to a book, which when read together
give an outline of the claim. However,
like defined terms or catch phrases, headings cannot be unnecessarily
conclusive or inflammatory.
[28]
Language Language should
be disciplined and concise. It is best to stay away from inflammatory
language. Be creative. Keep the language and sentence structure
simple. There is nothing
more frustrating than having to re-read a sentence to understand what
it means. If the theory is presented in complicated
language, it will be difficult to follow.
Avoid
pronouns if it is not clear to whom you may be referring by such words
as “he” or “she” or “it”. Always
allude to the same thing or person by the same name. If
you maintain the same phraseology throughout the pleading, then it
will be easy to follow. Short
blunt sentences drafted in the positive; stay away from negative statements
and double negatives. One
should avoid “ifs” and introductory phrases that take away from the
material facts or limit them.
An
Overview There is nothing
in the rules that prevent an overview paragraph at the outset of the
pleading. Providing the
context in which the material facts can be better understood is arguably
a material fact. The overview can be used much like the
headings, to capture the theory and language of the dispute.
As set out a recent article by
the Honourable Mr. Justice Laskin related to factums in the Court of
Appeal,
[29]
the beginning of a pleading could summarize the theory
in a paragraph to explain what the case is about and why your client should
prevail. This can make it easier for the reader
to understand what follows as the reader will now have the context in order
to understand why and how the particular details in the pleading are important.
For instance,
using our example, after the relief claimed and the description of
the parties, you may want to plead as follows:
"4. The Vendor intentionally failed
to deliver widgets to the Purchaser, knowing that the Purchaser would
not be able to fulfill its obligation to deliver computers to its customers
by January 1, 2000, and would suffer damages including loss of profit
and goodwill." OR
"4. The Vendor failed to deliver widgets
to the Purchaser in breach of the Agreement. The
Vendor knew that the widgets were essential to the Purchaser, in order
for the Purchaser to fulfill its obligations to deliver computers to
its dealers by January 1, 2000. The
Vendor knew there were no other timely source of widgets available
to the Purchaser. The Vendor knew that the Purchaser would
not be able to fulfill its obligations to deliver computers by January
1, 2000. The Purchaser
was not able to deliver the computers by January 1, 2000. The
Purchaser has lost profit and goodwill." OR
"4. In breach of the Agreement, the
Vendor failed to deliver the widgets to the Purchaser. The
Vendor knew that the Purchaser would suffer losses when the Purchaser
was not able to deliver the computers by January 1, 2000."
Because these
overviews are placed at the beginning of the pleading, the reader is
not only immediately confronted with the theory, but is also provided
with the context of the action. Especially
in pleadings that are lengthy, an overview can make the theory more
easily understood and therefore, more persuasive.
Incorporation
of Documents A document that
is referred to in a pleading, even if only "in passing",
will be deemed to be incorporated by reference as part of the pleading.
[30]
For instance, in our breach of contract
example, the agreement between the plaintiff and defendant is part of the
pleading subject to production. Make
sure that you are prepared to produce any document referred to. This rule applies not only to agreements,
but other items; for instance, "widgets", videotapes and computer
disks.
Charts
and Tables Some types of
cases lend themselves to being presented with charts or tables. They
can be placed in the body of the pleading or in a schedule. For instance, where a minority shareholder is claiming oppression,
a chart setting out the date and amounts of cheques that the majority
has paid to itself is very persuasive.
The
Use of Adjectives The
use of adjectives can be dangerous in a pleading. For example, in a wrongful dismissal action where the plaintiff
referred to “numerous complaints”, the court required particulars of
all of these “numerous complaints” so that the defendant can plead. It would have been safer for the plaintiff
to have pleaded that there were complaints, all the particulars of
which are known to the defendant, to avoid the requirement of particulars.
[31]
Restrictions
on what Constitutes a Material Fact when Pleading a. The
Pleading of a Criminal Conviction A
criminal conviction against one of the parties may be pleaded in certain
limited circumstances. Even
though it is considered an admission, and in general admissions are
not to be pleaded, as they are evidence, the conviction can be pleaded
as one of the surrounding circumstances, such as in determining an
issue of negligence or nuisance.
[32]
b. Motive A
defendant is not permitted to plead a plaintiff's motive for bringing
an action
[33]
. c. Settlement Discussions Unless
you are bringing an action to enforce a settlement, and the settlement
discussions themselves are part of the claim, it is not proper to plead
settlement discussions
[34]
d. Reference to Insurance Reference
to the fact that a party may have insurance to cover any claim may
be struck
[35]
.
4. Why your Clients are Entitled to the Relief Claimed After persuasively
setting out the material facts related to a cause of action, the next
task is to plead the cause of action itself, i.e., in our breach of
contract example to establish that there has been a breach of contract
entitling the plaintiff to damages.
In doing so,
there is a prohibition on pleading law. However,
references to statutes must be pleaded. It is important not to overlook the pleading
of statutory provisions, for it may preclude you from advancing an
argument at trial.
The
theory of your case may be based on alternative possible factual outcomes. When alternative claims are alleged,
the facts relating to each such claim should be stated separately to
show which facts belong to which alternative head of relief claimed. For example, when pleading fraudulent
misrepresentation or in the alternative negligent misrepresentation,
the way you plead it may very well depend on the theory of case. For
example if the facts and the documents indicate that the defendant
was reckless in making the misrepresentation not caring whether it
was true or false or indicate that, at the very least, the defendant
was negligent (although the defendant's conduct may not have reached
the level of recklessness) then the theory of your case would be based
on recklessness or in the alternative negligent misrepresentation. These
inconsistent pleas are easily dealt with by one theory of the case,
the defendant was reckless, not caring whether the statements made
were true or false or at the very least was not careful in the making
of the representation (negligent). However,
if the theory of the fraud case is that it was an intentional misrepresentation,
then that is clearly inconsistent with a negligent misrepresentation. Proving
intent requires a sound factual base, based on some uncontroverted
facts that reasonably suggest intentional misrepresentation. That theory will obviously be totally inconsistent with negligent
misrepresentation. However,
although these are two inconsistent theories, the rules of pleading
allow you to plead inconsistent allegations as long as you make it
clear that they are being pleaded in the alternative.
[36]
However the theory of your case within
those circumstances is based on two separate distinct and inconsistent theories.
5. Remedy The last part
of your pleading will address remedy. The
remedy requested should be supported by the material facts you have
already pleaded, and be consistent with your theory.
For instance,
in our example, it would not be consistent with our theory if at the
end of the pleading we asked for delivery of the widgets.
If requesting
punitive damages, you may consider what additional facts should be
pleaded. This can provide
substantial latitude in pleading.
[37]
For instance, a party's financial means is generally not
relevant. However, when punitive damages are claimed,
it may be appropriate to plead means
[38]
.
At the time
of pleading you may not know all of the particulars of the damages
suffered. It is for this reason that you will often
see "all the particulars of which will be provided prior to trial" at
the end of the pleading. While
this is sufficient, if the action proceeds to trial, seriously consider
amending your pleading to provide those particulars so that the trial
judge knows exactly what your case is before the trial begins.
If this is a
defence for our example, consider the last paragraph of the defence
reading: "The
defendant requests that this action be dismissed with costs, as the
defendant states that it honoured all of its obligations to the plaintiff,
including under the Agreement."
F. AMENDING
YOUR PLEADING The theory must go through a continual re-testing or re-analysis. If a fact learned from a document or evidence at discovery does not fit with the theory as pleaded, analyze this new fact and consider amending your pleading. A good time to re-evaluate your pleading is after discovery, but before the pre-trial. |