Other than good English, pleading-writing requires skill. Skills in pleading-writing are as important as courtroom skills.
I'd like to touch on the initial stages of responding to civil complaints.
Under the rules of civil procedure, upon receipt of the summons, a defendant has fifteen days to respond. There are several ways to respond.
What usually happens of course is that the counsel for the defendant would ask for an additional fifteen days extension, because the "counsel has just been engaged and he needs additional time to study voluminious documents, ek ek".
After the extension, the counsel for the defendant is faced generally with two options---to file a motion to dismiss or to file an answer. (Let us not include the filing of a motion for a bill of particulars, as it has no bearing in this discussion.)
Courts discourage the filing of motions to dismiss. Even the summons indicate that as much as possible, defendants should refrain from filing motions to dismiss.
The general view is that motions to dismiss would only serve to prolong the litigation process.
In order to properly file a motion to dismiss, there must be clear grounds to file a motion to dismiss. The specific grounds for filing a motion to dismiss are found in Section 1, Rule 16 of the rules of civil procedure.
The alternative is to immediately file an Answer to the complaint.
An Answer may be filed which includes therein the grounds for a motion to dismiss. The rules allows this.
Section 6 of Rule 16 states:"If no motion to dismiss has been filed, any of the grounds for dismissal provided for in this Rule may be pleaded as an affirmative defense in the answer and, in the discretion of the court, a preliminary hearing may be had thereon as if a motion to dismiss had been filed."
But most defense counsels, instead of immediately filing an Answer, file a motion to dismiss.
The effect--intended or unintended--of filing motion to dismiss is to delay the proceedings, since the court will have to first resolve the motion to dismiss before requring the filing of an Answer.
But the question is, as a mater of strategy, is it always beneficial for the defense to file a motion to dismiss?
Sometimes, it is better to immediatley file an Answer and include in the affirmative defenses the grounds for a motion to dismiss. Thereafter the defense can subsequently file a motion for preliminary hearing on those affirmative defenses.
Section 6, Rule 16 is a very effective strategy. When there is clear presence of a ground to file a motion dismiss, filing an Answer through Section 6, Rule 16 would be a better strategy, as opposed to filing a motion to dismiss.
Because a motion to dismiss is not a responsive pleading. An Answer is.
Once an Answer is filed, the plaintiff can no longer amend the complaint as a matter of right.
Let me give an example.
A complaint was filed, and there was an error because the plaintiff actually had no capacity to sue.
If the defense files a motion to dismiss (and not an Answer), the motion to dismiss will only serve to alert the plaintiff of his mistake.
What the plaintiff will immediately do is to file an amended complaint. At this stage filing an amended complaint is a matter of right, since no responsive pleading has yet been filed.
Bad defense strategy.
The better way for the defendant, I submit, is to file an Answer and include as part of the affirmative defenses, the ground of lack of capacity to sue (or some other ground for that matter). Then immediately move for a preliminary hearing on the affirmative defense.
This way, as defense counsel, you shackle the plainitff, as he can no longer just arbitrarily amend the complaint. For the plainitff to seek permission to amend the complaint would already be seen as an afterthought, which would be obvious to the court already.
In my earlier practice, almost automatically I would file a motion to dismiss.
But as time passed, and with numerous pleadings filed, I learned to be more circumspect in responding to complaints.
Since then, when acting as defense counsel, incorporated in my analysis on how to properly respond to complaints is the conscious appreciation of the difference between Sections 1 and 6 of Rule 16 of the rules of civil procedure.
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