Sunday, February 12, 2006
Every once in awhile, a lawyer forgets to include a prayer for relief at the end of a complaint. It may seem a trivial matter when you can simply amend the complaint. But there are times when you cannot amend a complaint. A statute may allow a limited time period for filing a complaint, and if that time runs out and the cause of action is created by statute alone (i.e., did not originate at common law), there may be no opportunity to perfect the pleadings.
One huge example is the filing deadline in the Administrative Procedure Act for a jurisdiction. You can hear a pin drop in my classroom when I tell my students how I once received a complaint appealing a decision of the state agency at which I worked, and I realized the complaint contained no prayer for relief. I waited until I was sure the time period for filing a complaint had run, called the attorney who had written the complaint to tell him the bad (for him) news, filed my motion to dismiss in court, and had it granted quickly. One good horror story should stick in the memory of students and new attorneys, so they will always remember to ask for what the client wants, always "ask for the sale."
All experienced sales people know what "ask for the sale" means. Ask any group of law students or CLE participants if they have any sales experience. Inevitably someone will have sold insurance or managed a retail store in a prior life, and others sold cookies for the Girl Scouts or candy bars for the school band. Ask them to explain how they succeeded. With little prompting most participants in American commerce can tell you that they described the product, persuaded the customer, and then ended with a closer, something like "so may I wrap that up for you" or "so how many would you like?" That's asking for the sale, closing the deal.
Law students need to learn to do the same thing. In a brief to the court, after describing their client's position and persuading the court on each issue, they need to follow through and ask for the sale, saying something like "and therefore this Court should award compensatory damages of $10,000 to the plaintiff" or "and therefore the Court should grant the motion for summary judgment." This type of ending, after each issue's persuasive analysis, is an effective use of repetition. (spl)