The planets must be aligned or misaligned as the case may be, because I’ve been flooded with callers who are dissatisfied with their current attorneys, and want to fire them to hire me.
I get a lot of these calls, and reviewing the cases to decide if I want them gives me great insight into the manner in which other attorneys handle cases (and the terrible ways that some organize their case files). I have just reviewed my fourth complaint of the day, and encountered one of my pet peeves. I had to take a moment to vent.
All of the complaints were guilty of the offense, but one particular complaint, with attachments, is 125 pages long. The attorney has seriously over-pleaded the case, and that is a topic for another day, but he has also attached 12 exhibits.
It’s actually not proper to attach some exhibits to complaints, and it is often a really bad idea to do so. In the case I was reviewing, the attorney had attached the contract, and I would venture to say that most attorneys would do the same.
Think before you attach! Even in a breach of contract action, you don’t have to attach the contract (at least not here in California). The problem with doing so is that anything you attach to a complaint becomes an allegation. The defendant is then free to cite to any provision in that contract to support a demurrer or other motion.
Most of the time that is no problem, but you may not have all the facts when you file the complaint. Your client may have forgotten or failed to tell you that there was a subsequent modification. You could end up fighting over some issue that could have been completely avoided if you had simply alleged the relevant terms of the contract instead of attaching a copy.
I’m not saying you should never attach a contract to a complaint, but just take a moment to consider whether you are painting yourself into a corner by alleging that the attachment is the operative contract. I have disposed of a number of cases over the years based on exhibits plaintiff’s counsel chose to attach to the complaint. Presumably the results would have ultimately been the same when I introduced those exhibits myself via a motion for summary judgment, but my job was made a lot simpler and the cases were disposed of much earlier.
Here’s how it plays out when an attorney is overzealous in attaching exhibits.
In California, the defendant can demur to the complaint; basically contending that the complaint fails to state a cause of action. But for purposes of a demurrer, all allegations of the complaint must be taken as true, and a “speaking demurrer” is improper. By that, it is meant that the demurrer must rely on the allegations as stated, and those allegations cannot be refuted with extrinsic documents. (There are some exceptions, but this is not a treatise on demurrers.)
In almost all cases, if I successfully persuade the court that the complaint fails to state a cause of action, the plaintiff will almost always be given leave to amend to address any deficiencies. But an amendment is not permitted if it contradicts a prior allegation. For example, if the complaint alleges that a written contract was breached five years ago, and I demur on the basis that the statute of limitations for breach of a written contract is four years (two years on an oral contract), the plaintiff cannot simply amend the complaint to allege that the breach was less than four years ago.
And that is how I once defeated a complaint with an over-zealous exhibit-attacher. (I don’t exactly recall the facts, but it went something like this.) The complaint alleged that parties had entered into an oral agreement, and that the contract had been breached just shy of two years before the complaint was filed. But the attorney had attached an email to establish the breach, and that email showed that the plaintiff was already claiming breach more than two years before the filing of the complaint. Normally, even with that email in hand, I could not have offered it to support a demurrer, but since the email made clear that the action was barred, my demurrer was sustained without leave to amend. Easy peasy lemon breezy.
But back to the recent complaints. Let’s give the attorney the benefit of a doubt as to his decision to attach the contract, but there was no justification for the other 11 exhibits. He attached invoices, emails between the parties, his demand letter, and the responsive letter from opposing counsel. None of these exhibits were necessary, and offer nothing of benefit except to the opposition, who can now rely on all of them for a demurrer.
I see this behavior a lot from new attorneys, and I think in their minds they feel the need to prove the case via the complaint and to that end attach all the evidence. It doesn’t work that way. The case can only be decided by a dispositive motion or trial, and any evidence can be presented at that time. As satisfying as attaching documents to the complaint may feel, doing so can doom the case.
Similarly, if the strategy is to intimidate the other side into settlement by showing the vast amount of evidence supporting the case, that strategy can be accomplished without attachments to the complaint. Provide the exhibits with a demand letter instead.
[UPDATE:] A reader named Steve very kindly commented (see comments below) that in Florida, the plaintiff is required to attach the contract to the complaint. But interestingly, even in the Sunshine State, the Rule says that only the “material portions” of the contract need be attached, and the Rule goes on to state that “[n]o papers shall be unnecessarily annexed as exhibits.” My point exactly.
