By Bernstein-Burkley, P.C.
Having practiced in bankruptcy court in both consumer and commercial cases for the last eight years, I have seen a variety of pleadings crafted with varying degrees of creativity and skill. On one hand, there are those that are so short and cryptic that it’s difficult to ascertain how exactly the party’s argument gets them from point A to point B. Others are so painstakingly technical that the argument itself is lost in the monotony of citations, references, and legalese. In my opinion, neither of these extremes do much to further your client’s interests. Simply stated, the best pleading is the one that tells the most convincing story and makes the most sense to the adjudicator. Too much or too little factual detail will only confuse and frustrate the reader (i.e. the Judge). A winning pleading clearly states what relief is being sought and explains how the law applies to the relevant facts of the case.
The Federal Rules of Civil Procedure are based upon the concept of notice pleadings. The general rules of pleadings under the FRCP require that the pleading must contain (1) a short and plain statement addressing the Court’s jurisdiction; (2) a short and plain statement of the claim asserted in the pleading; and (3) a demand for the relief sought.
The notice pleading requirement is intended to be less formal and intended to simply provide notice to parties of the general issues in a case without having to allege detailed facts in support of the claims. It is a general notice of asserted claims, the details of which can be fleshed out as the case progresses.
The result of the notice pleading requirement is sometimes the filing of bare bones motions and responses. In some cases the factual details may not be available to supplement the pleading or response, but more often than not a bare bones pleading in a contested matter is a poorly drafted pleading. The issues in contested bankruptcy matters are often complex, particularly in complex commercial matters. Even the relatively straightforward matters often contain potentially mitigating facts and circumstances. Every opportunity should be taken within reason to make clarity out of chaos.
In my experience, Bankruptcy Judges tend to be learned and prepared individuals. They will take the time in advance of the scheduled hearing to read and understand the pleadings filed in the matters before them. Accordingly, your filed pleading is the very first opportunity for you to present your side of the story to the Judge. If you have written it in a way that clearly and concisely explains your client’s position and how the law supports that position, then you are on the right path. The benefits of a well-written pleading are far out-weighed by the additional time it takes to draft it. A well-written pleading will lay the foundation for a solid argument and will make your job at the hearing that much easier. It will enable you to more effectively and efficiently argue in support of your client’s position at the hearing and will enable you to be a better advocate overall.