Wednesday, May 20, 2009

The Plausible Pleading Standard

Civil Procedure buffs have been reacting to the Supreme Court decision Ashcroft v. Iqbal, which affirmed that "plausibility" pleading applies to all cases in Federal Court under Rule 8.  Here is a useful post by Scott Dodson on the Civil Procedure Prof Blog Howard Wasserman has also reacted to the decision on Prawfsblog with some useful insights, see here. Constitutional law scholar Michael Dorf has a commentary at Findlaw

Many are saying that this decision will not affect "run of the mill" contracts and torts cases that judges are used to, meaning that most mass tort cases won't be affected.  I wonder if this is true, or if plaintiffs will need to show more proof for these cases as well when they file.  Any causes of action with an intent element and/or conspiracy causes of action, it seems to me are going to be affected.  It strikes me that this decision imports the summary judgment concept into pleadings.  Negligence cases might pass muster under a kind of "res ipsa" theory, whereas intent cases will require more.  More thoughts on this later.

There will be a lot more writing and thinking on this before it stabilizes, probably many years from now.  In the meantime, the costs of litigation have gotten even higher.  ADL

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