The Power of Preliminary Objections

TL;DR

A litigation lawyer’s invoice lists work performed, sometimes including “Preliminary Objections.” Drafting powerful Preliminary Objections saves expense, long-term. This article explains the basics for clients.

Estimated Reading Time: 3 minutes

The Litigation Framework: Procedural Rules

Rules... state and local and federal, oh my!
Rules… state and local and federal, oh my!

Every American state maintains its own set of rules, dictating procedure in civil/criminal courts. More frequently than not, judges in counties within a state author a companion group of local procedural rules.

The rules reflect the type of court involved, e.g. Small Claims vs Civil Trial vs Arbitration vs Appeal vs Criminal. Federal courts present yet another set of rules, applicable to courts within its system. Whew!

Litigation’s Maestro: The Complaint

A musical maestro guides all parts of the orchestra, conjuring harmonious sounds for us to enjoy. A Complaint, typically the first document filed with the court in an action, serves as litigation’s maestro. It presents the issues requiring resolution. Subsequent evidence and discussion are confined to those issues.

A Complaint alerts the court to a new controversy involving at least two adverse parties. Adverse parties present opposing views of certain facts. They may agree on some facts, disagree on others. The perspective of the entity filing the Complaint, the plaintiff, presents one version of a conflict. Fairness mandates the defendant—the entity to whom plaintiff points in the Complaint— receive prompt notice of the filing. Cliff Notes version: plaintiff claims the defendant did a, b, c, d, etc.; the defendant must respond, possible only after securing actual notice of the lawsuit.

Service

To get the response ball rolling, procedural rules establish a deadline for formally notifying the defendant of the Complaint filing. The law calls this process service. The general rule mandates the physical act of placing the Complaint in the defendant’s hands. Additional rules name the types of individuals/entities empowered to effect service. The rules also detail the dot-the-i’s requirements for proper service.

Remember those rules mentioned at the start of this post? A substantial number laser-focus on Complaints and service. Think of those rules as Commandments for Starting a Lawsuit.

One of the rules concerns the signature on the Complaint. Plaintiff must sign. The signature verifies the truth of factual statements listed in the Complaint. As an example, Pennsylvania civil procedural rules call that signature document a Verification.

Sometimes an attorney signs the Complaint rather than the plaintiff. Because this violates the rules, defense counsel will alert the court in a written document filed with the court.

Responding to the Complaint

Tuning Instrument: Preliminary Objections

In some states, when defense counsel discovers one or more flaws in the Complaint or its service, the attorney drafts Preliminary Objections. This two part document begins with a numbered list of paragraphs. Each points to a precise aspect of the Complaint (or service) sparking an objection. The objection finds its source in a rule of civil procedure.

A brief plays follow-up to the first part. Written in narrative style, it restates the items listed in the first part. The attorney then supports each objection, relying on certain rules. Think of this brief as an extended because note. In Law Land, a brief may be comprised of 3, 30, 75, more, or any number of pages in between. A Preliminary Objections brief tends to run under 10 pages.

Issues of Validity Arising From The Complaint

Perhaps the Complaint was served on a neighbor in defendant’s condo building, rather than handed to the defendant directly. Or, the Complaint was served 35 days after court filing, rather than the required 30. A Complaint, seeking a money award (damages) for negligent conduct, may fail to include each of the elements required to state a negligence claim. In each instance, a basis for a preliminary objection exists.

Why File Preliminary Objections?

Uh oh: Drafting Preliminary Objections exercises brain cells.
Uh oh: Drafting Preliminary Objections exercises brain cells. (Helmeted Curassow, S. America / Sylvan Heights Bird Park, NC)

General rule: failing to preliminarily object waives the objection. In other words, speak now or forever hold your peace.

Not every act of service passes legal muster. Faulty service may deprive a court of jurisdiction— power to render a decision involving the parties. Where the court lacks power/jurisdiction over a person or entity, the entire case screeches to a halt. Therefore, the details of the service scenario could result in outright dismissal of the case.

Every part of a Complaint forced into Bye Felicia! mode forms a defense win. Why? Because time won’t be wasted on issues unworthy of litigation. The court may extend an opportunity to plaintiff to try again, that is, rewrite the Complaint. But certain parts of the pleadings (the numbered paragraph listing), such as a demand for attorney fees (available only under specific conditions), may bid a permanent farewell.

Filing an Answer to the Complaint

Refresher: Once a defendant receives the Complaint, a responsive document must be filed. In some states, only a Complaint and an Answer are recognized during the early stage of a case. In those states, the defending person or entity will file an Answer.

The answering defendant matches each factual statement in the Complaint with a response. The same arguments available for Preliminary Objections likely will be raised. They may appear toward the end of the Answer, in a section called New Matter. Or the defenses may appear at a later time; the document will be styled as a Motion, or whatever the federal/state/local rules require.

The Bottom Line

Preliminary Objections serve as fitness guru. They point out the fat, suggesting ways to trim offensive statements from the Complaint. The objections may prompt the judge to dismiss one or more claims (counts). Or, the court may ring a death knell, killing the case outright (e.g. in the event of fatal service-related issues).

If you see this item listed on your attorney’s invoice, smile. The lawyer, at the start, is serving your best interests.