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How convincing pleadings can change minds

27th Jun 2024

There is much evidence to support the fact that people make up their mind very quickly – just read Blink: The Power of Thinking without Thinking by Malcolm Gladwell.

Once a person has made up their mind, getting them to change it is difficult.

Intelligent people believe that they are open to having their mind changed, but in fact aren’t.

Less intelligent people believe that they are not likely to have their mind changed, but in fact do.[1]

The most powerful document in a case is the statement of claim, or it should be.

It is often the first document read by the defendant lawyer. It is usually the first document read by the judge.

Judges and defendant lawyers are also people and if their first impression is that you don’t have a good case, it will be an uphill battle to change their mind.

Most pleadings fall into two main categories:

1. Provide as few details as possible; or
2. Provide a dreary monologue of needless repetition and jargon.

The old school view is that if the matter goes to hearing, plaintiffs don’t want to be bound too closely to the facts. This can be a self-fulfilling prophecy; if the defendant is not impressed by the case at an early stage, it is much less likely to resolve and will be far more likely to go to hearing.

Clever pleadings can tell a good story and still leave sufficient air for the minor discrepancies that inevitably emerge in evidence.

Variously attributed to a number of luminaries[2] over centuries is the saying ‘I am sorry this letter is so long; I didn’t have time to write a shorter one’.

I am not saying that all pleadings can be short; merely that most pleadings should be shorter.

An example of needless pleading is the following classic introduction:

‘At all material times the defendant was incorporated in the Australian Capital Territory and is capable of being sued in its corporate name and style.’

‘At all  material times’ is a phrase tediously repeated throughout most pleadings – it serves a purpose but as professional wordsmiths, can’t we do better?

Why do we bother pleading that the defendant is capable of being sued? If it is an Australian registered corporation that is a fact. Why do we then go on to plead the law, when the rules specifically state that we should plead facts, not law, except when required by the rules?

What is the relevance of being incorporated in the Australian Capital Territory? Would it make any difference if it was incorporated in Tasmania? If not, why is it relevant? In fact, it is only relevant insofar as the Australian Capital Territory forms part of Australia and registered Australian companies can be sued.

Upon reading this archaic pleading, the reader will be bored, will suspect he/she already knows what that paragraph is going to say and will find nothing interesting that informs as to why this matter is before the court.

What about this instead?

At all material times:

1. The defendant was a registered Australian corporation that operated a chain of supermarkets including a supermarket at the Canberra Centre at Bunda Street in the Australian Capital Territory (‘Supermart’).

And then it is time to tell the story.

If one is alleging negligence, and particularly in personal injury matters, it is vital to establish foreseeability.

It can work very well to establish the conditions precedent to the accident occurring, so that by the time it happens, the reader is expecting it as the logical conclusion to the facts as pleaded.

Remember the old fortunately/unfortunately poem:[3]

 A woman is falling from a plane.

Fortunately, there is a haystack below the plane.

Unfortunately, there is a pitchfork in the haystack.

Fortunately, she missed the pitchfork.

Unfortunately, she missed the haystack.

That poem invests readers in the outcome by allowing them to draw their own conclusions along the way.

The same can be achieved with pleadings.

At all material times:

1. The plaintiff was shopping in the fresh food department at Supermart.
2. a. The floor of the fresh food department had a shiny polished surface;
   b. Supermart displayed loose bunches of grapes for sale in open shelving;
   c. Supermart knew or ought to have known that from time to time grapes came loose from the bunches and fell on to the floor of the fresh food department;
   d. Supermart knew or ought to have known that some of the grapes were either not bagged at all or were bagged but not sealed when placed in the trolleys;
   e. The trolleys provided by Supermart had open metal weave bottoms that allowed items such as grapes to fall through the bottom of the trolley to the floor;
   f. Supermart knew or ought to have known that customers would frequently place bunches of grapes in those trolleys;
   g. Supermart knew or ought to have known that grapes and other fruit and vegetable matter frequently ended up on the floor of the fresh food department;
   h. Supermart knew or ought to have known that fruit and vegetable material such as grapes contain a high proportion of moisture and become slippery when trodden on, particularly on shiny polished surfaces;
   i. The few floor mats provided by Supermart only covered about 10% of the floor area of the fresh food department; and
   j. Supermart had no system of regular checking and cleaning the floor of the fresh food department.
3. On 4 June 2017 at some time prior to 12.30pm a grape came to be on the floor of the fresh food department at Supermart.
4. On that day at about 12.30pm the plaintiff trod on the grape and fell suffering injury, loss and damage.

Hopefully, by the end of reading that, the fact that the plaintiff slipped would come as no surprise – the reader will have already anticipated such a logical outcome.

It was an accident waiting to happen.

The ALA thanks Noor Blumer for this contribution.

 

Noor Blumer has practised as a personal injury lawyer since 1992 and is a founding partner and director of Blumers Lawyers. She has a Master of Laws from the ANU and is a graduate of the Australian Institute of Company Directors. Noor is a Past President of the Law Society of the Australian Capital Territory, Australian Women Lawyers Association and Australian Lawyers Alliance, and the inaugural winner of the ACT Woman Lawyer of the Year in 2016. Noor likes playing the piano (poorly), playing scrabble and fighting insurance companies. In 2021 Noor was appointed Adjunct Professor at Law for the University of Canberra’s Faculty of Business, Government & Law.

 

 

This is an edited version of an article first published by Blumers Personal Injury Lawyers.

The views and opinions expressed in this article are the author’s and do not necessarily represent the views and opinions of the Australian Lawyers Alliance (ALA).

Tags: Noor Blumer Pleadings Statement of claim Foreseeability