Civ Pro 1.3 – Notice Pleading vs. Iqbal
The names, well that's pretty self explanatory, but what about the legal claims we're making on the facts? How much detail do we have to include? And actually now that I think about it, how much detail can we include? It's really early in the process and we only know a small piece of what's been going on inside Goliath Corp. Well, fortunately our legal system recognizes this quandary that plaintiffs often find themselves in. For most cases in their early stages, the parties simply don't have the facts that they'll need to prove their claims. There is a stage in the process called discovery, where additional information will be, surprise, discovered, but that comes later.
At this point, we need to look at rule eight, which is the rule that governs almost all complaints. Rule eight sets a relatively easy to meet standard. It says that a complaint should contain, "a short and plain statement of the claim showing that the pleader, in our case, Sarah, is entitled to relief". Now lawyers called this standard notice pleading and that's to reflect the fact that the complaint just has to put the defendant on notice about the subject of what they're getting sued for. Hey Goliath, you're on notice. We're suing you because you discriminated against Sarah when you fired her on the basis of her race.
Now for decades, the US Supreme Court's interpretation of rule eight made it very easy. It set a low bar, so to speak. The controlling case was the 1957 Conley V. Gibson case that said that a complaint was sufficient, "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim, which would entitle him to relief". So to parse that out, what the court is saying is that if there is any chance of there being any kind of fact to support his claim, that's good enough. That's about as low as a bar as you can possibly set. The bar here is set so low that as long as there's a sheer possibility that Sarah might be able to prove her claim, that's good enough.
And that was how the courts interpreted rule eight, up until 2009. In that year, the Supreme Court heard a case called Iqbal, where the plaintiffs claimed that, and this is following the 9/11 attacks that the federal government was unfairly targeting Arab Muslim men for detention and mistreatment. Now, these plaintiffs are relying on the familiar notice pleading standard that Conley laid out, simply listed the elements of the plaintiff's claims without any specific facts. But the Supreme Court decided to reject the Iqbal complaint and in so doing, reinterpreted rule eight to require something more than a sheer possibility.
Now, in Iqbal, the Supreme Court interpreted rule eight to require enough facts to make the claims plausible. Now, if you're not exactly clear on what plausibility means, you're not alone. In fact, the legal community is right there with you. What is clear is that under Iqbal, the standard has been raised. It used to be a sheer possibility. Now it has to be plausible. Now a complaint has to support its claims with some factual context. Now, to be fair, there is considerable disagreement on just how much tougher the standard has gotten, but we're gonna play it safe. And in the next lesson, when we actually draft Sarah's complaint, we're gonna keep Iqbal in mind and leave absolutely no doubt that the facts support her discrimination claims.
It's time to draft Sarah's complaint! Where do you start? Well, the complaint’s primary purpose is to tell the other parties and the court what your lawsuit is about, so it must contain several key items:
- The parties’ names;
- The legal claims you are making based on your client’s facts;
- The relief you want the court to grant;
- The reasons why the court you’ve chosen is the right one to handle the suit; and
- A request for a jury trial, if you want one.
You're good on the first bullet (and we'll address bullets 3-5 in later lessons). But what about the second one? How much do you have to say about Sarah’s claims in your complaint? How many details do you have to include? After all, this early in the process, you only know a small piece of what’s been going on inside Goliath Corp. . . .
Fortunately, the rules recognize that when plaintiffs file their complaints, they still have a lot to uncover about the facts they will need to prove their claims at trial. Finding that additional information will come later in the discovery process, which the rules describe in great detail (we’ll get there!). Because a plaintiff will need discovery to flesh out her claims, Rule 8—which governs almost all complaints—sets a flexible standard.
Rule 8 says your complaint should contain “a short and plain statement of the claim showing that the pleader is entitled to relief.” Lawyers often call this standard notice pleading: all your complaint has to do is put the defendant on notice about the subject of your lawsuit. For decades, the U.S. Supreme Court's interpretations of Rule 8 set a very low bar. The Court explained in the 1957 case Conley v. Gibson that a complaint was sufficient "unless it appears beyond doubt that the plaintiff can prove no set of facts in support of his claim which would entitle him to relief" (emphasis added). Writing a complaint was not “a game of skill" in which some technicality could doom a plaintiff. Instead, the Court intended that the "no set of facts" rule would “facilitate a proper decision on the merits.”[i]
Great news, right? Rule 8 isn’t there to trip you up, so surely you can’t go wrong in pleading Sarah’s claims. Not so fast! Enter Iqbal, the 2009 U.S. Supreme Court case that threw lawyers nationwide into a tizzy.
Iqbal arose after the 9/11 attacks, and the plaintiff claimed that the federal government was unfairly targeting Arab Muslim men for detention and mistreatment. The complaint relied on the old, familiar "notice pleading" standard and listed the elements of the plaintiff's legal claims without specific facts. The Supreme Court rejected the Iqbal complaint, saying it contained “mere conclusory statements” that the government broke the law. Rule 8, the Court said, requires something more: enough facts to make the claims “plausible” and allow a judge to infer the plaintiff might win. Those facts don't have to make it likely or probable the plaintiff would win, but they have to do more than raise "a sheer possibility that a defendant has acted unlawfully." Under Iqbal, if a complaint does not support its claims with factual context, the judge should not allow the case to continue.
Iqbal left everybody wondering how much tougher the plausibility standard would be than notice pleading. A decade later, we still aren't sure: Iqbal says its analysis is "context specific," and different judges interpret it differently. Some judges don't seem to think much has changed and allow claims to survive on what looks like Conley's "no set of facts" rule. Others are stricter about requiring a plaintiff to pair legal conclusions with concrete facts. What is clear is that when you draft Sarah’s complaint, you want to keep Iqbal in mind and leave no doubt that the facts support her discrimination claims. Next time, we'll see how you do just that.
[i] Rule 9 sets a slightly stricter rule for pleading a few types of claims. The classic example is that if you claim fraud or mistake, you have to state what specific fraud or mistake you are talking about. For our purposes, though, we can stick to Rule 8.
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