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Publication Date

4-2024

Document Type

Article

Abstract

Several publications already exist detailing the evolution of American civil pleading standards, the personalities involved throughout, as well as the differing iterations’ theoretical and philosophical underpinnings. This Article is written not from the viewpoint of a scholar, but a practitioner. It is the practitioner who drafts, files, and defends against these pleadings. It is the practitioner who provides the “boots on the ground” execution of legislative and judicial directives. It is the practitioner who experiences the aspects of litigation that are not ultimately published in a reporter. And it is the practitioner who must explain to his or her clients the meaning of the law, the rulings of the judge, and the ultimate determination of their claims.

As such, the first part of this Article seeks to discern the following for Charles E. Clark’s vision of the Federal Rule of Civil Procedure 8, Conley v.Gibson’s enunciated notice pleading standard, and the current“plausibility pleading” embodied by the Ashcroft v. Iqbal and Bell Atlantic Corp. v. Twombly rulings: (1) the practical problems each of these standards sought to remedy; (2) the impact on a claim’s chances of proceeding to discovery or undergoing an interlocutory appeal; and(3)the acknowledged concerns arising from this pleading standard. The goal is that by reviewing the benefits and failings of each standard, a clearer picture may form of a standard that would best accomplish the ultimate goal of allowing cases to be decided on their merits.

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