Reply #22: And its all "pampango" fault [View All]

[happyslug]

"pampango" was the person who posted the link in question. DU made that claim in its counterclaim, through I wish someone would post the Complaint of the Plaintiff, it is impossible to understand the "Answer" without a copy of the Complaint.

For you non-lawyers out there, a Complaint is the name given to the documents filed by a Plaintiff where the Plaintiff claims someone did the Plaintiff a wrong. An "Answer" is the Defendant's response to the Complaint. Thus to understand the "Answer" one has to have the "Complaint" to see what is being agreed to and disagreed with. A "Counterclaim" is attached to the "Answer" as a listing of what the Plaintiff did wrong to the Defendant. Most of the "Counterclaim" would be better off named a "New Matter" i.e. items that are NOT claim of the Defendant as to the Plaintiff, but facts that are needed to decide this case but were NOT made by the Plaintiff. "New Matter" occurs in those jurisdictions that still use "Fact Pleading" (as my home state of Pennsylvania does) as oppose to "Notice Pleading" as does the Federal Government and some states.

The difference between "Fact Pleading" and "Notice Pleading" is that the former all facts must be stated in the pleadings, "Notice Pleading" just requires that both sides know what is the underlying cause of action as oppose to pleading all known facts. "Fact Pleadings" started to replace common law pleading starting in the 1840s, "Notice Pleadings" started with the Federal Government in the 1930s. "Notice Pleading" came out of the situation where a Plaintiff may not have access to all of the information needed to take his case to court, for it is in the hands of the Defendant. "Fact Pleading" did not address this problem even when "New Matter" was introduced.

I had to do some research on this years ago and as late as the late 1800s, what we call "Discovery" was not permitted. "Discovery" i.e. the exchange of information between the parties after the pleadings were done is a product of the 20th century. By the late 1930s it had become a permanent part of Federal case law and when the US Supreme Court introduced "Notice Pleading" it was do to the fact that additional facts would come out in the Discovery part of litigation not the pleading part. "Fact Pleading" jurisdiction also added discovery to their rules either before or after the Federal acceptance of "Notice Pleading" but given many states have cases where the facts are really not in dispute, "Fact Pleading" does a better job of flushing out such litigation then "Notice Pleadings" so most state courts have kept "Fact Pleading" do to such cases.

The Federal Courts tend to see more complex cases that are better flushed out via discovery and this preferred by the Federal Government. Notice the difference is more a reflection of the type of cases each court is seeing NOT any difference in law. Furthermore, given the expansion of "Discovery" even in "Fact Pleadings" jurisdiction, the differences between the two types of pleading is more academic then real. In a "Notice Pleading" you may not be able to do "New Matter" but then you plead it as part of your counterclaim (as apparently was done in this case). Even in "Fact Pleading" jurisdiction, "Discovery" is permitted. Just pointing out the differences and why these new facts were plead as a "Counterclaim" as opposed to "New Matter".

I notice the following "Fact" in the "Counterclaim": There are 162,000 DU members at the time the Counterclaim was filed. We are a community of 162,000 people plus lurkers.