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September 21, 2009 12:27 PM

The Battle Over Pleading Standards

Posted by Zach Lowe

How detailed must a lawsuit be to survive an initial motion to dismiss on the grounds that the suit's pleadings are insufficient? It's a question that goes to the very core of fairness and the workability of the justice system, and the plaintiffs bar thinks a May U.S. Supreme Court decision has tilted the balance too far in favor of defendants, according to this story from The National Law Journal, an Am Law Daily sibling publication. 

The decision in Ashcroft v. Iqbal states that a plaintiff's initial pleadings must be more than "threadbare," and must give "factual plausibility to their claims." That's a major shift from the prior rule, which required only a "notice pleading," a simple statement of the case against the defendant, according to our colleague Tony Mauro. 

Defense lawyers have used the ruling to win dismissals since May and claim it bars frivolous lawsuits. Plaintiffs lawyers believe it serves as "a padlock on the courthouse door," and that it unfairly requires plaintiffs to present evidence they would only be able to obtain through discovery. Several Iqbal opponents met on Sept. 14 to discuss challenging the ruling by pushing Congress to pass a law effectively overturning it. Among those in attendance, according to the NLJ: the American Association for Justice, the Sierra Club, Public Citizen, the National Employment Lawyers Association, and the Committee to Support the Antitrust Laws.

The quote of the day, for sheer self-deprecation, goes to Arthur Miller, a professor at New York University School of Law, who tells Mauro: "I have spent my whole life with federal rules, and this is one of the biggest deals I've ever seen. Me, old fogy troglodyte that I am, I see serious problems with democratic values here, with access to the courts, with resolution of disputes with a jury of peers."

Is Miller right? 

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