Stop Attaching Documents to Your Complaint

Businessmen climbing upThe 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.

So let’s give the attorney the benefit of a doubt as to 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 in any motion, even a demurrer where extrinsic evidence would not otherwise be permitted.

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.

[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 complaint need be attached, and the Rule goes on to state that “[n]o papers shall be unnecessarily annexed as exhibits.” My point exactly.

7 thoughts on “Stop Attaching Documents to Your Complaint

  1. 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.

  2. 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).

  3. 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.

  4. I am a pro se plaintiff.

    Thank you for this great article, but I got here too late. I already filed complaint with the contract as attachment. Can I file Amended Complaint to remove the attachment?

    Thanks

Leave a Reply

Your email address will not be published. Required fields are marked *