FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 8(f). Construction of Pleadings. All pleadings shall be so construed as to do substantial justice.

SIMPSON, "A POSSIBLE SOLUTION OF THE PLEADING PROBLEM". 53 Harvard Law Review 169, 183-187 (1939).1

THE code system of pleading contemplates that complaint, answer, and reply if any; shall each set forth facts which are sufficient in law to give a right of action or defense, or answer to a defense, if proved. It is not enough that the pleadings in question fairly advise the defendant what he is sued for or the plaintiff what defenses he may expect to have to meet at the trial. Each pleading must be demurrer-proof. Moreover, it is improper to plead either evidence or legal conclusions, and violation of this rule will open a pleading to motions for its correction. The requirements of meticulous completeness in substance and careful adherence to form are different requirements from those at common law or in classical equity, but they are the same kind of requirements. To be sure, there is no requirement of singleness of issue, even after the defendant's answer, and there is a large degree of freedom of amendment, so that errors in pleading are seldom ultimately fatal to a party who actually has a good substantive case and also the funds and persistence to carry it to a conclusion. But the system, even in its most recent degree of perfection as exhibited in the new Federal Rules of Civil Procedure, has a number of serious defects when viewed from the standpoint of the function of pleading in a civilized system of procedure.

In the first place, the code system of pleading lends itself to large and unnecessary delay in the conclusion of litigation, especially where the defense is in the hands of an astute lawyer who is not above using the system to his client's advantage. The most obvious method is by repeated objections to the plaintiff's pleadings. Any lawyer who has had occasion to draw a complaint in a case of any complexity knows how hard it is to satisfy the requirement that facts be pleaded which constitute a "cause of action" so clearly that a demurrer or motion to dismiss would be frivolous. Indeed, the very conception of "cause of action" as interpreted by many courts is itself a metaphysical and recondite one. Even more difficult is the problem of

1 Footnotes are from the original article unless otherwise indicated.

2 Witness the learned discussions of the matter in Clark, The Code Cause of Action (1924) 33 Yale L. J. 817; McCaskill, Actions and Causes of Action (1925) 34 Yale L. J. 614; [Clark] Note (1925) 34 Yale L. J. 879; Harris, What Is a Cause of Action? (1928) 16 Calif. L. Rev. 459; Gavit, The Code

putting the complaint in such form that there is no reasonable probability of a motion to clarify, perhaps on the ground that evidence on the one hand or conclusions of law on the other has been pleaded rather than matters of ultimate fact, as if these were sharply distinguishable. One need only refer in this connection to the divergence in view of American courts of last resort with regard to the proper mode of pleading negligence of a defendant. To be sure, errors may be cured by amendment, but only at the cost of delay. Then, after the defendant's objections to the complaint are overcome by argument to the court or met by amendment, he may call for a bill of particulars. Here is further delay.3 . . . Where interlocutory appeals are allowed, moreover, the possibilities of delay are multiplied. The result is that a defendant with a long purse and a wily lawyer may often weary a plaintiff into settling his meritorious claim for a pittance.

Secondly, the code system does not elucidate the real issues in the case so as to inform court and parties of those matters which are the subject of bona fide contest. By the use of the general denial, the defendant may put the plaintiff on proof of matters not really disputed; by pleading affirmative defenses not intended seriously to be urged at the trial, he may cause the plaintiff to incur substantial expense in preparing to meet them. . . . Even in a case where the complaint cannot be attacked for defects of form or substance, a defendant may harass and delay the plaintiff by raising insubstantial issues quite consistently with the mechanism of code pleading. Nor have attempts to meet this potential abuse been altogether successful. The earlier codes required the pleadings to be sworn to; the principal consequence was much casual perjury. The new Federal Rules attempt to deal with the matter of unconsidered denials and fictitious affirmative pleas by imposing an obligation on counsel to certify by signing a pleading that to the best of his information and belief it

Cause of Action: Joinder and Counterclaims (1930) 30 Col. L. Rev. 802; Arnold, The Code "Cause of Action" Clarified by the United States Supreme Court (1933) 19 A. B. A. J. 215; Wheaton, The Code "Cause of Action": Its Definition (1936) 22. Corn. L. Q. 1.

1 See Cook, Statements of Fact in Pleading Under the Codes (1921) 21 Col. L. Rev. 416; Isaacs, The Law and the Facts (1922) 22 Col. L. Rev. 1; Clark, Code Pleading (1928) § 38.

2 For example, compare King v. Wilmington & N. C. Elec. Ry., 1 Penne. 452, 41 Atl. 975 (Del. 1898), with Clark v. Chicago, M. & St. P. Ry., 28 Minn. 69, 9 N. W. 75 (1881). Numerous cases are collected in Clark, Code Pleading (1928) 206-208.

3 It is now proposed that bills of particulars be abolished in the federal courts. See Second Preliminary Draft of Proposed Amendments to Rules of Civil Procedure for the District Courts of the United States (1945) 14-16. Cf. p. 213, supra. — ED.

4 A quotation from Bolster, "The Municipal Court", 134 Boston Bar Bull. 3, 7-8 (1938), pp. 255-256, supra, is omitted. - ED.

has good ground to support it and that it is not interposed for delay, and by providing that a pleading signed with intent to defeat the rule may be stricken as sham and disciplinary action taken against the attorney.1 This seems merely to express a pious wish. Proof of a wilful violation of the rule will seldom be forthcoming, and, even if it is, it may be doubted whether the courts will enforce the rule with any degree of vigor. If the use of the pleading stage as a cause for delay is to be prevented and the really controverted issues are to be determined, something more is required.

Thirdly, the code system does not prevent surprise. So far as surprise in matters of law is concerned, neither the common law nor equity has ever attempted completely to do so. To be sure, the system of forms of action did require that the legal theory of the plaintiff's case be to some degree indicated, while the equity doctrine of the frame of the bill was perhaps even more effective in this regard. That it may well be desirable to require the parties to disclose the legal theories on which they are proceeding prior to trial or hearing seems arguable. This has been required in Scotland for many years; it is the practice in France, Germany, Italy and Spain; and I believe that some of the much-criticized decisions in our own states establishing the doctrine of "theory of the pleadings" under the codes are to be interpreted as a clumsy but not necessarily unintelligent groping toward a similar practice. So far as matters of fact are concerned, the code system ordinarily does prevent surprise of the plaintiff by unanticipated defenses at the trial; it does not prevent the less dangerous but fully as costly surprise which results when evidence painfully and expensively collected is rendered unnecessary by the abandonment, of denials or affirmative defenses which it turns out were never intended seriously to be urged. More important, in jurisdictions where no reply is required to new matter in the defendant's answer, surprise at the trial is not only possible but usual. All this is consistent enough with the theory that litigation is a battle of lawyers' wits; it is not consistent with the administration of justice.

The fact is that the code system of pleading gives just about as much scope for procedural trickery as did the common-law system under the Hilary Rules or the equity system of the Bleak House period. Delays can be spun out; costs can be multiplied; procedural devices conceived in reformist enthusiasm may be turned to purposes

1 Rule 11.

2 See the illuminating discussion of this matter in Millar, The Old Regime and the New in Civil Procedure in I Law: A Century of Progress 1835-1935 (1937) 207, 240-41.

3 Even this is not true in all code states. In most of them it has been held, as for example in Piercy v. Sabin, 10 Cal. 22 (1858) [p. 263, supra], that affirmative defenses cannot be proved under a general denial even though they are such as would have been available under the general issue at common law, but in a few states some affirmative defenses are allowed although the only pleading by the defendant has been a general denial. . . .

of chicane.1 . . From the standpoint of the plaintiff in a code cause, there is no assurance of speed and cheapness in the pleading stage; from the standpoint of the defendant, there is no assurance that the bona fide issues will be so elucidated that he will know what they are at hearing or trial and that the court will be able to deal fairly and accurately with his defenses.2

SECTION 2

PARTIES

NO ATTEMPT has been made in this book fully to present the subject of parties either at law or in equity. Enough has been included, however, to indicate the large difference between law and equity with regard to the parties to actions or suits who may or must be joined as plaintiffs or defendants. We have seen that the common law was reluctant to deal with other than strictly bilateral controversies, while equity not only allowed the joinder of all persons having an interest in a suit but required such joinder in most cases. A part of the jurisdiction of classical equity was developed to relieve against the refusal of the common law courts to permit joinder of parties or consolidation of actions for trial. For example, equity would in. some cases entertain a bill of peace in a strictly legal controversy to permit the settlement in one suit of a controversy involving multiple parties who could not be joined at law. Equity also gave relief by bill of interpleader to one who was threatened by conflicting demands by two or more other persons each of whom claimed something which the plaintiff was willing to pay or deliver

1 Cf. P. L. Sayre, Book Review (1939) 87 U. of Pa. L. Rev. 629, 631-32: "It is a great mistake to believe that because the demurrer, though retained in most codes, is very rarely found determinative on appeal, that the old game of` fighting over the pleadings, and winning if possible on the pleadings when you are doubtful of winning on the merits, has been discontinued. Much to the horror, no doubt, of the early idealistic codifiers, there is perhaps more fighting over the pleadings now than obtained at common law. . . . . For the most part fighting over pleadings (which, regrettably, is on the increase in modern practice) usually takes the form of motions for a more specific statement or motions to strike, so far as the pleadings are concerned, along with various objections incident to amendment of the pleadings or variance between the pleadings and the proof at the trial. Here again, the laudable aspirations of many reformers to get a fair trial on the merits, as economically as possible, have not been realized. Trials are often more prolix and more expensive, so far as procedural pitfalls go, than they were under the common law method, and the instances in which substantial victory or defeat is secured through shrewd bargaining powers and clever use of procedural requirements are more frequent now, in many cases, than at common law."

2 For a proposed remedy for this situation see pp. 920-927, infra. — ED.

to the rightful claimant when ascertained.1 Statutes allowing joinder of parties in actions at law more freely than at common law or sometimes even compelling such joinder, are now to be found in many states, and the general tendency has been to allow in all types of actions something of the freedom as to joinder of parties permitted by equity. The Federal Rules of Civil Procedure indicate the extent to which this policy has been carried in modern unified procedure.

FEDERAL RULES OF CIVIL PROCEDURE (1938).

RULE 19. NECESSARY JOINDER OF PARTIES.

(a) Necessary Joinder. Subject to the provisions of Rule 232 and of subdivision (b) of this rule, persons having a joint interest shall be made parties and be joined on the same side as plaintiffs or defendants. When a person who should join as a plaintiff refuses to do so, he may be made a defendant or, in proper cases, an involuntary plaintiff.

3

(b) Effect of Failure to Join. When persons who are not indispensable, but who ought to be parties if complete relief is to be accorded between those already parties, have not been made parties and are subject to the jurisdiction of the court as to both service of process and venue and can be made parties without depriving the court of jurisdiction of the parties before it, the court shall order them summoned to appear in the action. The court in its discretion may proceed in the action without making such persons parties, if its jurisdiction over them as to either service of process or venue can be acquired only by their consent or voluntary appearance or if, though they are subject to its jurisdiction, their joinder would deprive the court of jurisdiction of the parties before it; but the judgment rendered therein does not affect the rights or liabilities of absent persons.

(c) Same: Names of Omitted Persons and Reasons for NonJoinder to be Pleaded. In any pleading in which relief is asked, the pleader shall set forth the names, if known to him, of persons who ought to be parties if complete relief is to be accorded between those already parties, but who are not joined, and shall state why they are omitted.

1 The simplest example, perhaps, is that of the finder of a chattel which is claimed by two persons each asserting ownership thereof.

2 For Rule 23, see p. 869, infra.

3 As to indispensable parties in the federal courts as distinguished from necessary parties in suits in equity in the state courts, see 2 Moore's Federal Practice (ed. Moore and Friedman, 1938) c. 19.