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Common-Law Pleading


The system of rules and principles that governed the forms into which parties cast their claims or defenses in order to set an issue before the court.

The system prevailed in the common-law courts and in many U.S. states until it was replaced by statute with a procedure called code pleading in the nineteenth century. Those states that do not have systems of code pleading today follow the pleading procedures established by the rules of civil procedure adopted for the federal district courts in 1938.

During the twelfth and thirteenth centuries a person with a grievance sought a writ from the king's chief minister, the chancellor. The writ ordered the defendant to submit to the plaintiff's demands or to appear and answer the charge made against him or her. Over a period of time, the format of the particular writs began to become standardized and were called forms of action. There were different writs for different types of actions.

The purpose of the writ was to assert the court's authority to hear the dispute and to demand the presence of the defendant. In this regard it corresponded to the modern summons. The plaintiff then had to state the claim against the defendant. For the pleading to be valid the plaintiff had to use exactly those words permitted by the form of action selected. Some forms of action, such as trespass, became immensely popular because they allowed more variation in the facts pleaded than other forms. If a plaintiff selected a writ that did not fit the particular case the action was thrown out of court. If there were no writs for some kinds of actions and the chancellor refused to devise one then the aggrieved person could find no relief at all in the royal courts.

A defendant faced a similar array of established responses. The defendant could, for example, deny the plaintiff's right to legal relief even if the facts alleged were true. Such a response was known as a demurrer. A defendant could choose to enter a dilatory plea, which argued against the court's authority to hear that particular case rather than directly objecting to the plaintiff's claim. A third option was to enter a plea in bar which denied the plaintiff's right to maintain the action at all. An example of such a plea was a traverse, an assertion that some essential element of the plaintiff's case was lacking or untrue. Another plea in bar was confession and avoidance which stated that additional facts rendered the claim unenforceable, even if the plaintiff's facts were true.

Like the plaintiff, the defendant was limited to choosing a single position. The alternative responses were mutually exclusive even though they were not necessarily contradictory. For example, if the defendant pleaded a confession and avoidance he or she conceded the accuracy of the plaintiff's version of the facts and would not be allowed to contest those facts. The issue became the new facts that the defendant had asserted in order to avoid the effect of the plaintiff's allegation. The plaintiff had to argue against the newly introduced facts by entering a demurrer, a traverse, or another confession and avoidance.

Eventually the system of common-law pleading fell into an established order that proceeded alternatively from plaintiff to defendant and back to plaintiff. The plaintiff first stated the claim in a declaration and the defendant answered in a plea. The plaintiff was permitted to respond with a replication. Then came the defendant's rejoinder, the plaintiff's surrejoinder, the defendant's rebutter, and the plaintiff's surrebutter. No distinctive names were given to any pleadings used beyond that stage.

The system of common-law pleading eventually became so encrusted with requirements and risks that actions were won or lost on the fine points of pleading rather than on the merits of a party's case. The insistence on reducing every case to one claim and one answer created more problems than it solved. As a result, in 1948 many states began enacting code pleading, while other states eventually adopted rules of pleading patterned on the rules of federal civil procedure.

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