The planets must be aligned or misaligned as the case may be, because I’ve been flooded with callers who are dissatisfied with their current attorneys, and want to fire them to hire me.
I get a lot of these calls, and reviewing the cases to decide if I want them gives me great insight into the manner in which other attorneys handle cases (and the terrible ways that some organize their case files). I have just reviewed my fourth complaint of the day, and encountered one of my pet peeves. I had to take a moment to vent.
All of the complaints were guilty of the offense, but one particular complaint, with attachments, is 125 pages long. The attorney has seriously over-pleaded the case, and that is a topic for another day, but he has also attached 12 exhibits.
It’s actually not proper to attach some exhibits to complaints, and it is often a really bad idea to do so. In the case I was reviewing, the attorney had attached the contract, and I would venture to say that most attorneys would do the same.
Think before you attach! Even in a breach of contract action, you don’t have to attach the contract (at least not here in California). The problem with doing so is that anything you attach to a complaint becomes an allegation. The defendant is then free to cite to any provision in that contract to support a demurrer or other motion.
Most of the time that is no problem, but you may not have all the facts when you file the complaint. Your client may have forgotten or failed to tell you that there was a subsequent modification. You could end up fighting over some issue that could have been completely avoided if you had simply alleged the relevant terms of the contract instead of attaching a copy.
I’m not saying you should never attach a contract to a complaint, but just take a moment to consider whether you are painting yourself into a corner by alleging that the attachment is the operative contract. I have disposed of a number of cases over the years based on exhibits plaintiff’s counsel chose to attach to the complaint. Presumably the results would have ultimately been the same when I introduced those exhibits myself via a motion for summary judgment, but my job was made a lot simpler and the cases were disposed of much earlier.
Here’s how it plays out when an attorney is overzealous in attaching exhibits.
In California, the defendant can demur to the complaint; basically contending that the complaint fails to state a cause of action. But for purposes of a demurrer, all allegations of the complaint must be taken as true, and a “speaking demurrer” is improper. By that, it is meant that the demurrer must rely on the allegations as stated, and those allegations cannot be refuted with extrinsic documents. (There are some exceptions, but this is not a treatise on demurrers.)
In almost all cases, if I successfully persuade the court that the complaint fails to state a cause of action, the plaintiff will almost always be given leave to amend to address any deficiencies. But an amendment is not permitted if it contradicts a prior allegation. For example, if the complaint alleges that a written contract was breached five years ago, and I demur on the basis that the statute of limitations for breach of a written contract is four years (two years on an oral contract), the plaintiff cannot simply amend the complaint to allege that the breach was less than four years ago.
And that is how I once defeated a complaint with an over-zealous exhibit-attacher. (I don’t exactly recall the facts, but it went something like this.) The complaint alleged that parties had entered into an oral agreement, and that the contract had been breached just shy of two years before the complaint was filed. But the attorney had attached an email to establish the breach, and that email showed that the plaintiff was already claiming breach more than two years before the filing of the complaint. Normally, even with that email in hand, I could not have offered it to support a demurrer, but since the email made clear that the action was barred, my demurrer was sustained without leave to amend. Easy peasy lemon breezy.
But back to the recent complaints. Let’s give the attorney the benefit of a doubt as to his decision to attach the contract, but there was no justification for the other 11 exhibits. He attached invoices, emails between the parties, his demand letter, and the responsive letter from opposing counsel. None of these exhibits were necessary, and offer nothing of benefit except to the opposition, who can now rely on all of them for a demurrer.
I see this behavior a lot from new attorneys, and I think in their minds they feel the need to prove the case via the complaint and to that end attach all the evidence. It doesn’t work that way. The case can only be decided by a dispositive motion or trial, and any evidence can be presented at that time. As satisfying as attaching documents to the complaint may feel, doing so can doom the case.
Similarly, if the strategy is to intimidate the other side into settlement by showing the vast amount of evidence supporting the case, that strategy can be accomplished without attachments to the complaint. Provide the exhibits with a demand letter instead.
[UPDATE:] A reader named Steve very kindly commented (see comments below) that in Florida, the plaintiff is required to attach the contract to the complaint. But interestingly, even in the Sunshine State, the Rule says that only the “material portions” of the contract need be attached, and the Rule goes on to state that “[n]o papers shall be unnecessarily annexed as exhibits.” My point exactly.
[Donna wrote to ask about her personal injury case. I felt that she provided too much personal information, so I will summarize. For unknown reasons, an alleged witness provided false information to counsel for the opposition, stating that the plaintiff had not been injured. Defense counsel used the false statement from the putative witness at the mediation. She feels that she received a greatly reduced settlement amount due to the false information, and is planning to sue the witness for her lies. Her question was whether she should attach “several graphic bloody and gory photos taken in the emergency room” to prove the witness lied.]
Donna,
In California, what you are contemplating would be a SLAPP. Generally speaking, statements made in conjunction with litigation are absolutely privileged, and cannot be the basis for a damage claim. If you sue a witness, no matter how false and vile her statements might have been, she will bring an anti-SLAPP motion to strike your complaint, and if she prevails, you will be responsible for any attorney fees she incurred. Your state also has an anti-SLAPP statute, but I can’t say whether it would yield the same result. But do not file or serve the action you are contemplating without contacting an attorney in your state.
In addition to that reality, I don’t see how you would prove any damages. A settlement at a mediation (again, at least here in California) is entirely voluntary. You were free to reject the offered amount and go to trial. If her lie was that you were not injured, presumably that would have been very easy to refute, especially given your several graphic bloody and gory photos taken in the emergency room. Thus, it was your decision to walk away from what you could have received. No doubt, you felt at the time that you had valid reasons to do so, but you can’t now expect the witness to make up the difference.
Great insight you have shared. Is it too late to get it right? In California,
let’s say a complaint with unnecessary and potentially fatal exhibits is amended for it’s first time prior to being served, resulting in the FAC being free of exhibits, and prior the filing of an answer.
The original complaint would still have to be served along with the FAC, but my question is: would defendants be able to request judicial notice of an exhibit attached to the original complaint if their demurrer was technically to the FAC, which has no exhibits?
Thank u
J
A plaintiff is held to prior allegations. A plaintiff can’t “plead around” a problematic allegation in order to defeat a demurrer or motion to strike. If a subsequent allegation is contrary to a prior allegation, it is considered a “sham pleading” and can be stricken. So in answer to your question, if exhibits were attached to the original complaint, they become allegations to the complaint. If an amended complaint was then filed, it would be subject to the prior exhibits/allegations. But a contrary allegation is not always fatal. So long as a reasonable basis for the change can be provided, the new allegation can survive.
I had this come up recently in a case, in which a prior firm had drafted the complaint. According to the client, he had never seen the complaint before it was filed, and it did not properly state the facts. The court had sustained a demurrer to the complaint, with leave to amend. Some of the allegations in my amended complaint were different than the original complaint, and the defendant demurred again, arguing that plaintiff had to be held to the original allegations, and on that basis the amended complaint failed to overcome the deficiencies. I was able to explain the basis for the inconsistencies, and the court overruled the demurrer.
This was very helpful and it makes a lot of sense too. I use to think I needed to attach all relevant proof that I had to everything I was putting in my pleading. so, when do I need these documents? when I go to court? or do I just wait for discovery? but I suppose if the other party doesn’t challenge the information, I may not need to show proof at all, is this right?
>> so, when do I need these documents? when I go to court?
You need them whenever it comes time to prove up your case. If the defendant never answers, then you will provide them with the prove-up package or at the default prove-up hearing. If the matter goes to trial, you’ll provide them then. Of course, if requested during discovery, you’ll need to produce them then as well.
If I am answering a lawsuit and filing a counter complaint. and I have proof of my allegations do I want to attach exhibits proving my allegations. I have several do I want to include them all. Or do I not want to attach only a few., If so do I have to authenticate them all or a general statement. the exhibits are court orders, emails, transcripts and sworn affidavits,
Also if the plaintiff attached the contract in a breach of contract claim., do i need to attach the same contract in my response. state is Florida
Thank you, this was a very well put together article and comments
>> If I am answering a lawsuit and filing a counter complaint. and I have proof of my allegations do I want to attach exhibits proving my allegations. I have several do I want to include them all.
To what end? What purpose will it serve to have an exhibit attached to the complaint? Unless they do things very differently in Florida, I can’t picture a scenario where that would ever be useful. For example, let’s say you have definitive evidence to dispose of the plaintiff’s claims, and to prove the claims in your cross-complaint, so you feel compelled to attach the documents to your cross-complaint. Now you file a motion for summary judgment. Are you really going to file a declaration that states, “Cross-Defendant wrote to me on June 1, 2021, stating that he received my payment. See exhibit B to the cross-complaint.” Here in California, that would be improper, since all motions must be self-contained. Why not just offer the exhibit with the motion when the time arises?
>> Also if the plaintiff attached the contract in a breach of contract claim., do i need to attach the same contract in my response. state is Florida
I actually address Florida’s rule regarding attachments in the comments. I can’t imagine you would need to attach the same contract to your cross-complaint, but as the rule states, you need only to attach material portions.
I know of a case where the plaintiff attached hundreds of pages of exhibits to a verified complaint, the defendants demurred, and then while still waiting for the hearing on the demurrer, the plaintiffs brought a Motion for Summary Adjudication on two of the claims, and attached 67 exhibits (some new, some the same as in the original complaint) that make a stack of papers literally nine inches high. Can the Defendants simply cross reference all of the plaintiff’s exhibits in opposing the motion and only attach a small number of new ones? The number of trees that die to support the exhibit addiction!
It’s a personal choice. I think it is good practice to refer to the opposition’s attachments, and I have never been chastised for doing so. But I worry that a judge may be too lazy to pull out the opposition’s papers to review the document to which I refer (not as big a concern now that everything is electronically filed), so in the case of a crucially important document, I will sometimes say, “as shown in plaintiff’s exhibit 9, which is attached hereto as exhibit 9 for the court’s convenience.”
In the case of a wrongful death/medical negligence, should I not attach pertinent medical records on USB/CD?
For the reasons stated in the article, what would be the point of doing so? Wrongful death is not one of my practice areas, so if there is some requirement to do so, then of course you should do so, but absent that, what could be in the records that you could not allege?
In federal court, extrinsic documents can be considered on a 12(b)(6) motion to dismiss if they are integral to the complaint. This would typically include the contract in a contract action, at least if there is no dispute over whether that particular contract is the operative document. See https://www.lexology.com/library/detail.aspx?g=a99ddbc7-1043-46d9-aecd-9acff311759c for a good overview.
With that being the case, if there is no dispute over which contract is operative, is there really a reason not to attach the contract? Attaching and incorporating it saves you the time of having to summarize the parts of the contract that provide background (and thus may be necessary to allege to defeat a motion to dismiss) but are not directly relevant to the dispute. Under those circumstances, I can’t see how a plaintiff is put in a less advantageous position by attaching the contract.
Of course, I still believe a complaint should be sufficient on its own to allow a reader to understand the crux of the dispute, without referring to exhibits, so I’d still allege facts relating to, or quote, the parts of the contract that are directly relevant to the dispute.
It would have less significance in federal court.
You have no idea how much back and forth I have gone through with my son who is pro se. I type up his complaints and other documents and he wants to attache 400 pages (sarcasm) to the complaint. I will let him know your basis for not attaching exhibits.
Good luck to you and your son. Glad I was able to help. It just happened again to me today. I took over a case where a demurrer had just been granted to the complaint, with ten days leave to amend, so preparing the amendment fell on me. The original complaint had 30 exhibits attached, and the client was convinced that every one of them was essential.
Great article and very helpful too.
I’m a pro se plaintiff as well, only because the amount of my suit is small enough (about $12,000) that if I prevailed, the award would probably be only slightly more than the attorney’s fees and if I lost, I’d be out the attorney fees in addition to not recovering anything.
I had pretty much decided to just tell the story in my complaint without benefit of attachments, but your clear and concise and made me more secure in my decision.
Having said that, I wanted to call your attention to the [UPDATE:] section of your article. In line 4 you stated that “the Rule says that only the “material portions” of the complaint need be attached”. Didn’t you mean material portions of the CONTRACT?
Yes. Thank you for the kind words, and for being my copy editor.
I am a pro se plaintiff and have filed suit on doctors and police for beating and mistreating, I would like to attach a specific page of the medical file in a response to a motion to dismiss, thoughts?
After responding to your comment, I saw that you posted it in response to my article on attaching documents to complaints. If you are responding to any type of motion, the strategy is completely different. An opposition is precisely when you need to put forth all the evidence necessary to defeat the motion. But you don’t just attach it to your opposition. You will need to provide a declaration that authenticates the exhibit.
I am a pro se plaintiff. I did not attach a copy of the contract (lease) to the complaint, but did allege verbatim, material points of the contract, i;e. the financial terms and the consideration only, left out other parts pertaining to requirements of the tenant, such as street lighting parking, etc. Would that be considered sufficient to state a cause of action.
William,
You should be fine, so long as you have alleged the material terms of the contract that are relevant to the action. If not, and the defendant demurs, then you may have to amend the complaint to attach the contract.
This is not true in all jurisdictions; Fla. R. Civ. P. 1.130 specifically requires a plaintiff to attach a copy of the contract to the complaint.
Thank you for the clarification, Steve. I probably should throw in more “this information is specific to California” disclaimers.
But I was curious and took a look at Fla. R. Civ. P. 1.130, and found that it codifies the point of my article. Rule 1.130 states:
“All bonds, notes, bills of exchange, contracts, accounts, or documents upon which action may be brought or defense made, or a copy thereof or a copy of the portions thereof material to the pleadings, shall be incorporated in or attached to the pleading. No papers shall be unnecessarily annexed as exhibits.”
So while Steve is correct in pointing out that the Sunshine State requires a plaintiff to attach the contract to the complaint, it permits the attachment to be limited to “the portions material to the pleadings” and goes on to state that “no papers shall be unnecessarily annexed as exhibits”, which was the point of the article (both from save the trees and strategic standpoints).
In California Superior Courts, for a Breach of Written Contract cause of action, it is required to either;
(1) attach the written contract to the complaint, or
(2) provide within the complaint a verbatim rendering of the written contract (which would be a waste of time).
Failure to do one of the above makes the complaint subject to a demurrer.
See-“To state a cause of action for breach of contract, Otworth must plead the contract, his performance of the contract or excuse for nonperformance, Southern Pacific’s breach and the resulting damage. (Lortz v. Connell (1969) 273 Cal.App.2d 286, 290, 78 Cal.Rptr. 6.) Further, the complaint must indicate on its face whether the contract is written, oral, or implied *459 by conduct. (Code Civ.Proc., § 430.10, subd. (g).)4 If the action is based on an alleged breach of a written contract, the terms must be set out verbatim in the body of the complaint or a copy of the written instrument must be attached and incorporated by reference. (Wise v. Southern Pacific Co. (1963) 223 Cal.App.2d 50, 59, 35 Cal.Rptr. 652.)” Otworth v. S. Pac. Transportation Co., 166 Cal. App. 3d 452, 458–59, 212 Cal. Rptr. 743, 747 (Ct. App. 1985)
I hope this is useful.
Actually, neither case you cite states that the plaintiff must “provide within the complaint a verbatim rendering of the written contract.” Otworth does state that “the terms” must be set out verbatim, but under general pleading rules, that just means the terms relevant to the dispute; those terms necessary to let the defendant understand the claim. Wise v. Superior Court illustrates the point. There, the plaintiff did a really sloppy job of alleging the terms of the agreement, but the Court of Appeal found that the demurrer should have been overruled. “All that is required of a plaintiff, even as against a special demurrer, is that he set forth in his complaint the essential facts of his case with reasonable precision and with particularity sufficiently specific to acquaint the defendant of the nature, source, and extent of his cause of action. … Essentially the problem is one of fairness in pleading so as to give the defendant such notice by the complaint that he may prepare his case. … Nor is it necessary for the plaintiff to particularize matters presumptively within the knowledge of the defendant.” It would be rather silly for a defendant to demur on the basis that the complaint does not allege all the terms of the contract of which defendant has a copy. In 30 years of practice, I’ve never been met with a demurrer on the basis that the contract was not attached.
With all that said, the article does not suggest you should never attach the contract, only that you should consider whether that is the best strategy. My practice is to allege only the contract terms relevant to the complaint, and to attach the complaint only when there is some advantage to doing so.
Thank you for submitting this article..it has answered a plethora of questions for me about this topic. Being mostly a Pro Se litigant articles like this are extremely helpful.
Good to hear that you found the article helpful.