On the Critical Use of Forms: Handy Tools With a Few Exceptions
Being thorough is a primary hallmark of a good attorney. Litigation provides many opportunities to be thorough—or to miss a small detail. In order to avoid an error, it is therefore tempting to be too thorough.
August 16, 2018 at 11:55 AM
7 minute read
The original version of this story was published on The Legal Intelligencer
Being thorough is a primary hallmark of a good attorney. Litigation provides many opportunities to be thorough—or to miss a small detail. In order to avoid an error, it is therefore tempting to be too thorough. The use of forms containing boilerplate affirmative defenses and discovery objections without supporting facts or arguments is one example; used properly they can increase efficiency and prompt you to consider objections and arguments that you might otherwise miss. Used improperly, they are rarely effective, can lead to unnecessary motions practice, additional expense and difficult conversations with clients. They are a reminder that being thorough does not mean using every tool and making every argument that can be made—but that being thorough means thinking through a form to ensure that only the relevant portions are used.
Forms can be seductive; you can take forms that have been used successfully by your firm, plug them in to a pleading, modify them to make sure your case's needs are addressed, and file the document. Forms reduces the work you have to do and appears to ensure that issues you may have missed are covered. The goal of this article is not to convince you to avoid forms or boilerplate—they are useful tools that can help you avoid the error of missing a defense or argument, and allow you to use time-tested documents quickly for your client. Instead, I argue that an attorney must think critically when using forms, ensuring that all defenses and objections listed are arguably supportable by factual allegations or relevant legal conclusions. By using the forms critically, you can ensure that you do not miss an objection or argument, without opening yourself and your client to the time and expense involved with motions practice and overbroad discovery. You can use forms as an analysis tool as well—an opening to consider how the case will develop based on the allegations that you are able to support.
Below are two situations that underscore the need to carefully scrutinize the forms that you use in litigation.
- Boilerplate Affirmative Defenses Can be Struck in Pennsylvania
The appellate courts in Pennsylvania have not ruled specifically on this issue, but the Common Pleas Courts have repeatedly held that Connor v. Allegheny Hospital, 501 Pa. 306, 461 A.2d 600 (1983) applies to new matter and requires factual averments to be pleaded in support of affirmative defenses. See Meyers v. Carey, No. 11-01166 (Lyco. Co. 2012); Lee v. Denner, 76 Pa. D. & C. 4th 181, 192 (Monr. Co. 2005); and Allen v. Lipson, 8 Pa. D. & C. 4th 390, 395 (Lyco. Co. 1990).
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