Vengeancia Here’s questions you have to ask first. Do you have a contract or an agreement? With whom? Is it with the corporation dba the U.S. of A? Admiralty Law Guide here. Also read about Burden of Proof here. If you are done doin’ the “Legal” approach (statues) and want to take control LAWFULLY, check out ideas at Creditors in Commerce. Read Stating Your Claim. Take a look at Brandon’s site and his ideas for setting up a Common Law Trust.

When you are contracting, you can respond in either one of four ways:
1) Full Acceptance
2) Conditional Acceptance (Counter-offer)
3) Remain Silent
4) Argue/Discuss/Fight/Make Statements

The Contract Clause appears in the United States Constitution, Article I, section 10, clause 1. It states:

No State shall enter into any Treaty, Alliance, or Confederation; grant Letters of Marque and Reprisal; coin Money; emit Bills of Credit; make any Thing but gold and silver Coin a Tender in Payment of Debts; pass any Bill of Attainder, ex post facto Law, or Law impairing the Obligation of Contracts, or grant any Title of Nobility.
Contracts require consideration and a meeting of the minds
Contracts require consideration and a meeting of the minds

Thomas Jefferson viewed the Constitution as a contract among the States. The people ORDAINED it, but are NOT A PARTY to it. This is a very important clause and contains LOTS of information. However, for our purpose here, let’s focus on the part that says that no State is allowed to impair the obligation of contracts. Also, check out the 7 Elements of an Enforceable Contract.

Constitution Dot Org Between 1787 and 1791 the Framers of the U.S. Constitution established a system of government upon principles that had been discussed and partially implemented in many countries over the course of several centuries, but never before in such a pure and complete design, which we call a constitutional republic. Since then, the design has often been imitated, but important principles have often been ignored in those imitations, with the result that their governments fall short of being true republics or truly constitutional. Although these principles are discussed in civics books, the treatment of them there is often less than satisfactory. This essay will attempt to remedy some of the deficiencies of those treatments.

The Social Contract and Government

The fundamental basis for government and law in this system is the concept of the social contract, according to which human beings begin as individuals in a state of nature, and create a society by establishing a contract whereby they agree to live together in harmony for their mutual benefit, after which they are said to live in a state of society. This contract involves

  1. the retaining of certain natural rights,
  2. an acceptance of restrictions of certain liberties,
  3. the assumption of certain duties,
  4. and the pooling of certain powers to be exercised collectively.

Read more here.

The deal in America, is that we have a corporation that is MASQUERADING as a constitutional republic. The Judges Attorneys, etc. are all Contractors. Read about The Gods of the Copybook Headings, here. Read more about this here.

What is “recognizance?” If you are arrested, you probably don’t want to be released “on your own recognizance,” since this would imply that you are a PERSON and a debtor. Remember – we are “the people.” We are the creditors. We are the boss! At an arraignment, it would be better to say, “I don’t consent to having been taken against my will. I object to being taken against my will. I wish for a continuance in order to obtain counsel. I wish to be released on my honor.” Then, file a Cease and Desist. Make sure you have a Fee Schedule and Affirmation already on file. More here.

Here’s the definition of recognizance:

A recorded obligation, entered into before a tribunal, in which an individual pledges to perform a specific act or to subscribe to a certain course of conduct.

For example, an individual who owes money might enter into a recognizance whereby she agrees to satisfy the debt.

In Criminal Law, an individual who has been found guilty of an offense can be mandated to enter into a recognizance whereby she agrees to keep the peace in the future. An individual who has been accused but not yet convicted of a criminal offense may be allowed to go free prior to the trial without being required to post a bail bond. The accused individual provides the court with a formal written statement, which declares that his failure to appear will precipitate payment to the court of a specifically indicated sum of money. This is known as a release on one’s own recognizance, or personal recognizance.

Also see: U.S. Supreme Court
ERIE R. CO. v. TOMPKINS, 304 U.S. 64 (1938) Argued Jan. 31, 1938.

Be sure to read about Persons. Also, be sure to read about Jurisdiction. While US citizens are subjects of the jurisdiction of the corporation dba the U.S. of A., we the people are sovrans, meaning self-governing, if we choose to be. We can establish our own common law jurisdiction by bringing a suit at common law pursuant to the 7th Amendment in the event of a breach of duty or contract (theoretically, at least). The people have the natural Right to contract. While a “legal” contract exists between corporations, person, etc., a lawful contract exists only between real flesh and blood men and women using “wet ink signatures.”

No one, including Govt. so-called officials, like police, judges, attorneys, etc., has a superior Right to engage you in commerce without your express consent. Keep in mind that the description, below, is written for use in the legal, not lawful realm, but the ideas are useful. There’s a lot of info. all over the web about contracts.

CONTRACT. This term, in its more extensive sense, includes every description of agreement, or obligation, whereby one party becomes bound to another to pay a sum of money, or to do or omit to do a certain act; or, a contract is an act which contains a perfect obligation.

In its more confined sense, it is an agreement between two or more persons, concerning something to be, done, whereby both parties are hound to each other, *or one is bound to the other. 1 Pow. Contr. 6; Civ. Code of Lo. art. 1754; Code Civ. 1101; Poth. Oblig. pt. i. c. 1, S. 1, 1; Blackstone, (2 Comm. 442,) defines it to be an agreement, upon a sufficient consideration, to do or not to do a particular thing. A contract has also been defined to be a compact between two or more persons. 6 Cranch, R. 136.

2. Contracts are divided into express or implied. An express contract is one where the terms of the agreement are openly uttered and avowed at the time of making, as to pay a stated price for certain goods. 2 BI . Com. 443.

3. Express contracts are of three sorts 1. BI parol, or in writing, as contradistinguished from specialties. 2. By specialty or under seal. 3. Of record.

4. – l. A parol contract is defined to be a bargain or voluntary agreement made, either orally or in writing not under, seal, upon a good consideration, between two or more persons capable of contracting, to, do a lawful act, or to omit to do something, the performance whereof is not enjoined by law. 1 Com. Contr. 2 Chit. Contr. 2.

5. From this definition it appears, that to constitute a sufficient parol agreement, there must be, 1st. The reciprocal or mutual assent of two or more persons competent to contract. Every agreement ought to be so certain and complete, that each party may have an action upon it; and the agreement would be incomplete if either party withheld his assent to any of its terms. Peake’s R. 227; 3 T. R. 653; 1 B. & A. 681 1 Pick. R. 278. The agreement must, in general, be obligatory on both parties, or it binds neither. To this rule there are, however, some exceptions, as in the case of an infant’s contract. He may always sue, though he cannot be sued, on his contract. Stra. 937. See other instances; 6 East, 307; 3 Taunt. 169; 5 Taunt. 788; 3 B. & C. 232.

6. – 2d. There must be a good and valid consideration, motive or inducement to make the promise, upon which a party is charged, for this is of the very essence of a contract under seal, and must exist, although the contract be reduced to writing. 7 T. R. 350, note (a); 2 Bl. Coin. 444. See this Dict. Consideration; Fonb. Tr. Eq. 335, n. (a) Chit. Bills. 68.

7. – 3d. There must be a thing to be done, which is not forbidden; or a thing to be omitted, the performance of which is not enjoined by law. A fraudulent or immoral contract, or one contrary to public policy is void Chit. Contr. 215, 217, 222: and it is also void if contrary to a statute. Id. 228 to 250; 1 Binn. 118; 4 Dall. 298 4 Yeates, 24, 84; 6 Binn. 321; 4 Serg & Rawle, 159; 4 Dall. 269; 1 Binn. 110 2 Browne’s R. 48. As to contracts which are void for want of a compliance with the statutes of frauds, see Frauds, Statute of.

8. – 2. The second kind of express contracts are specialties, or those which are made under seal, as deeds, bonds, and the like; they are not merely written, but delivered over by the party bound. The solemnity and deliberation with whicb, on account of the ceremonies to be observed, a deed or bond is presumed to be entered into, attach to it an importance and character which do not belong to a simple contract. In the case of a specially, no consideration is necessary to give it validity, even in a court of equity. Plowd. 308; 7 T. R. 477; 4 B. & A. 652; 3 T. R. 438; 3 Bingh. 111, 112; 1 Fonb. Eq, 342, note When, a contract by specialty has been changed by a parol agreement, the whole of it becomes a parol contract. 2 Watts, 451; 9 Pick. 298; see 13 Wend. 71.

9. – 3. The highest kind of express contracts are those of record, such as judgments, recognizances of bail, and in England, statutes merchant and staple, and other securities of the same nature, cutered into with the intervention of some public authority. 2 Bl. Com. 465 . See Authentic Facts.

10. Implied contracts are such as reason and justice dictates, and which, therefore, the law presumes every man undertakes to perform; as if a man employs another to do any business for him, or perform any work, the law implies that the former contracted or undertook to pay the latter as much as his labor is worth; see Quantum merwit; or if one takes up goods from a tradesman, without any agreement of price, the law concludes that he contracts to pay their value. 2 Bl. Com. 443. See Quantum valebant; Assumpsit. Com. Dig. Action upon the case upon assumpsit, A 1; Id. Agreement.

11. By the laws of Louisiana, when considered as to the obligation of the parties, contracts are either unilateral or reciprocal. When the party to whom the engagement is made, makes no express agreement on his part, the contract is called unilateral, even in cases where the law attaches certain obligations to his acceptance. Civ. Code of Lo. art. 1758. A loan for use, and a loan of money, are of this kind. Poth. Ob. P. 1, c. 1, s. 1, art. 2. A reciprocal contract is where the parties expressly enter into mutual engagements such as sale, hire, and the like. Id.

12. Contracts, considered in relation to their substance, are either commutative or independent, principal or accessory.

13. Commutative contracts, are those in which what is done, given or promised by one party, is considered as equivalent to, or in consideration of what is done, given or promised by the other. Civ. Code of Lo. art. 17GI.

14. Independent contracts are those in which the mutual acts or proniises have no relation to each other, either as ecluivalents or as considerations. Id. art. 1762.

15. A principal contract is one entered into by both parties, on their accounts, or in the several qualities they assume.

16. An accessory contract is made for assuring the performance of a prior contract, either by the same parties or by others, such as suretyship, mortgage, and pledges. Id. art. 1764. Poth. Obl. p. 1, c. 1, s. 1, art. 2, n. 14.

17. Contracts, considered in relation to the motive for. making them, are either gratuitous or onerous. To be gratuitous, the object of a contract must be to benefit the person with whom it is made, without any profit or advantage, received or promised, as a consideration for it. It is not, however, the less gratuitous, if it proceed either from gratitude for a benefit before received, or from the hope of receiving one hereafter, although such benefits be of a pecuniary nature. Id. art. 1766. Any thing given or promised, as a consideration for the engagement or gift; any service, interest, or condition, imposed on what is given or promised, although unequal to it in value, makes a contract onerous in its nature. Id. art. 1767.

18. Considered in relation to their effects, contracts are either certain or hazardous. A contract is certain, when the thing to be done is supposed to depend on the will of the party, or when, in the usual course of events, it must happen in the manner stipulated. It is hazardous, when the performan ce.of that which is one of its objects, depends on an uncertain event. Id. art. 1769. 19. Pothier, in his excellent treatise on Obligations, p. 1, c. 1, s. 1, art. 2, divides contracts under the five following heads:

20.- 1. Into reciprocal and unilateral.

21. – 2. Into consensual, or those which are formed by the mere consent of the parties, such as sale, hiring and mandate; and those in which it is necessary there should be something more than mere consent, such as loan of money, deposite or pledge, which from their nature require a delivery of the thing, (rei); whence they are called real contracts. See Real Contracts.

22.-3. Into-first, contracts of mutual interest, which are such as are entered into for the reciprocal interest and utility of each of the parties, as sales exchange, partnership, and the like.

23.-2d. Contracts of beneficence, which are those by which only one of the contracting parties is benefited, as loans, deposit and mandate. 3d. Mixed contracts, which are those by which one of the parties confers a benefit on the other, receiving something of inferior value in return, such as a donation subject to a charge,

24. – 4. Into principal and accessory.

25. – 5. Into those which are subjected by the civil law to certain rules and forms, and those which ate regulated by mere natural justice. See, generally, as to contracts, Bouv. Inst. Index, h. t.; Chitty on Contracts; Comyn on Contracts; Newland on Contracts; Com. Dig. titles Abatement, E 12, F 8; Admiralty, E 10, 11; Action upon the Case upon Assumpsit; Agreement; Bargain and Sale; Baron and Feme, Q; Condition; Dett, A 8, 9; Enfant, B 5; Idiot, D 1 Merchant, E 1; Pleader, 2 W, 11, 43; Trade D 3; War, B 2; Bac. Abr. tit. Agreement; Id. Assumpsit; Condition; Obligation; Vin. Abr. Condition; Contracts and Agreements; Covenants; Vendor, Vendee; Supp. to Ves. jr. vol. 2, p. 260, 295, 376, 441; Yelv. 47; 4 Ves. jr., 497, 671; Archb. Civ. Pl. 22; Code Civ. L. 3, tit. 3 to 18; Pothier’s Tr. of Obligations Sugden on Vendors and Purchasers; Story’s excellent treatise on Bailments; Jones on Bailments; Toullier, Droit Civil Francais, tomes 6 et 7; Ham. Parties to Actions, Ch. 1; Chit. Pr. Index, h. t.; and the articles Agreement; Apportionment; Appropriation; Assent; Assignment; Assumpsit; Attestation; Bailment; Bargain and sale; Bidder; Bilateral contract; Bill of Exchange; Buyer; Commodate; Condition; Consensual contract; Conjunctive; Consummation; Construction; Contracto of benevolence; Covenant; Cumulative contracts; Debt; Deed; Delegation. Delivery; Discharge Of a contract; Disjunctive; Equity of a redemption; Exchange; Guaranty; Impairing the obligation of contracts; Insurance; Interested contracts; Item; Misrepresentation; Mortgage; Mixed contract; Negociorum gestor; Novation; Obligation; Pactum constitutae, pecuniae; Partners; Partnership; Pledge; Promise; Purchaser; Quasi contract; Representatian; Sale; Seller; Settlement; Simple contract; Synallagmatic contract; Subrogation; Title; Unilateral contract.

COVENANT, contracts. A covenant, conventio, in its most general signification, means any kind of promise or contract, whether it be made in writing or by parol. Hawk. P. C. b. 1, c. 27, 7, s. 4. In a more technical sense, and the one in which it is here considered, a covenant is an agreement between two or more persons, entered into in writing and under seal, whereby either party stipulates for the truth of certain facts, or promises to perform or give something to the other, or to abstain from the performance of certain things. 2 Bl. Com. 303-4; Bac. Ab. Covenant, in pr.; 4 Cruise, 446; Sheppard, Touchs. 160; 1 Harring. 151, 233 1 Bibb, 379; 2 Bibb, 614; 3 John. 44; 20 John. 85; 4 Day, 321.

2. It differs from an express assumpsit in this, that the former may be verbal, or in writing not under seal, while the latter must always be by deed. In an assumpsit, a consideration must be shown; in a covenant no consideration is necessary to give it validity, even in a court of equity. Plowd. 308; 7 T. R. 447; 4 Barn. & Ald. 652; 3 Bingh. 111.

3. It is proposed to consider first, the general requisites of a covenant; and secondly, the several kinds of covenants.

4. – 1. The general requisites are, 1st. Proper parties. 2d. Words of agreement. 3d A legal purpose. 4th. A proper form.

5. – 1st. The parties must be such as by law can enter into a contract. If either for want of understanding, as in the case of an idiot or lunatic; or in the case of an infant, where the contract is not for his benefit; or where there is understanding, but owing to certain causes, as coverture, in the case of a married woman, or duress, in every case, the parties are not competent, they cannot bind themselves. See Parties to Actions.

6. – 2d. There must be an agreement. The assent or consent must be mutual for the agreement would be incomplete if either party withheld his assent to any of its terms. The assent of the parties to a contract necessarily supposes a free, fair, serious exercise of the reasoning faculty. Now, if from any cause, this free assent be not given, the contract is not binding. See Consent.

7. – 3d. A covenant against any positive law, or public policy, is, generally speaking, void. See Nullity; Shep. Touchs. 163. As an example of the first, is a covenant by one man that he will rob another; and of the last, a covenant by a merchant or tradesman that he will not follow his occupation or calling. This, if it be unlimited, is absolutely void but, if the covenant be that he shall not pursue his business in a particular place, as, that he will not trade in the city of Philadelphia, the covenant is no longer against public policy. See Shep. Touchs. 164. A covenant to do an impossible thing is also void. Ib.

8. – 4th. To make a covenant, it must, according to the definition above given, be by deed, or under seal. No particular form of words is necessary to make a covenant, but any words which manifest the intention of the parties, in respect to the subject matter of the contract, are sufficient. Sec numerous examples in Bac. Abr. Covenant, A Selw. N. P. 469; Com. Dig. Covenant, A 2; 3 Johns. R. 44; 5 Munf. 483.

9. In Pennsylvania, Delaware, and Missouri, it is declared by statute that the words grant, bargain, and sell, shall amount to a covenant that the grantor was seised of an estate in fee, free from all incumbrances done or suffered by him, and for quiet enjoyment against his acts. But it has been adjudged that those words in the Pennsylvania statute of 1715, (and the decision will equally apply to the statutory language in the other two states,) did not amount to a general warranty, but merely to a covenant that the grantor had not done any act, nor created any incumbrance whereby the estate might be defeated. 2 Bin. 95; 11 S. & R. 111, 112; 4 Kent, Com. 460.

10. – 2. The several kinds of covenants. They are, 1. Express or implied. 1. An express, covenant, or a covenant in fact, is one expressly agreed between the parties and inserted in the deed. The law does not require any particular form to create an express covenant. The formal word “covenant” is therefore not indispensably requisite. 2. Mod. 268; 3 Keb. 848; 1 Leon, 324; 1 Bing. 433; 8 J. B. Moore, 546; 1 Ch. Cas. 294; 16 East, 352; 12 East, 182 n.; 1 Bibb, 379; 2 Bibb 614; 3 John. 44; 5 Cowen, 170; 4 Day, 321 4 Conn. 508; 1 Harring. 233. The words “I oblige;” “agree,” 1 Ves. 516; 2 Mod. 266; or, “I bind myself to pay so much such a day, and so much such another day;” Hardr. 178; 3 Leon. 119, Pl. 199; are held to be covenants; and so are the word’s of a bond. 1 Ch. Cas. 194. But words importing merely an order or direction that other persons should pay a sum of money, are not a coveiaant. 6 J. B. Moore, 202, n. (a.)

11. – 1. An implied covenant is one which the law intends and implies, though it be not expressed in words. 1 Common Bench Rep. 402; co. Lit. 139, b; Vaugnan’s Rep. 118; Rawle on Covenants, 364. There are some words which of themselves do not import an express covenant, yet being made use of in certain contracts, have a similar operation and are called covenants in law. They are as effectually binding on the parties as if expressed in the most unequivocal terms. Bac. Ab. Covenant, B. A few examples will fully explain this. If a lessor demise and grant to his lessee a house or lands for a certain term, the law will imply a covenant on the part of the lessor, that the lessee shall during the term quietly enjoy the same against all incumbrances. Co. Litt. 384. When in a lease the words “grant,” 1 Mod. 113 Freem. 367; Cro. Eliz. 214; 4 Taunt. 609; “grant and demise, ” 4 Wend. 502; “demise,” 10 Mod. 162; 4 Co. 80; Hob. 12; or ” demiserunt,” I Show. 79 1 Salk. 137, are used, they are so many instances of implied covenants. And the words “yielding and paying” in a lease, imply a covenant on the part of lessee, that he will pay the rent. 9 Verm. 151; 3 Penn. 461, 464.

12. – 2. Real and personal. 1st. A real covenant is one which has for its object something annexed to, or inherent in, or connected with land or other property. Co Litt. 334; enk 241; Cruise, Dig. tit. 32, c. 25, s. 22; Platt. on Cov. 60, 61; 2 Bl. Com. 304. A covenant real, which necessarily runs with the land, as to pay rent, not to cut timber, and the like, is said to be an inherent covenant. Shep. To. 161. A covenant real runs with the land and descends to the heir; it is also transferred to a purchaser. Such covenants are said to run with the land, so that he who has the one is subject to the other. Bac. Ab. Covenants, E 2. See 2 Penn. 507; 10 Wend 180; 12 Mass. 306; 17 Mass. 586; 5 Cowen, 137; 5 Ham. 156; 5 Conn. 497; 1 Wash. C. C. 375; 8 Cowen 206; 1 Dall. 210; 11 Shep. 283; 6 Met. 139; 3 Mete. 81; 3 Harring. 338; 17 Wend. 136.

13. – 2. As commonly reckoned, there are five covenants for title, viz: 1. Covenant for seisin. 2. That the grantor has perfect right to convey. 3. That the grantee shall quietly possess and enjoy the premises without interuption, called a covenant for quiet enjoyment. 4. The covenant against incumbrances. 5. The covenant for futher assurance. 6. Besides these covenants, there is another frequently resorted to in the United Staes, which is relied on more, perhaps, than any other, called the covenant of warranty. See Rawle on Covenants for Title, where the import and effect of these covenants are elaborately and luminously discussed.

14. – 3. A personal covenant relates only to matters personal, as distinguished from real, and is binding on the covenantur during life, and on his personal representatives after his decease, in respect of his assets. According to Sir William Blackstone, a personal convenant may be transformed into a real, by the mere circumstance of the heirs being named therein, and having assets by descent from the covenantor. 2 Bl. Com 304. A covenant is personal in another sense, where the covenantor is bound to fulfil the covenant himself; as, to teach an apprentice. F.N.B. 340, A.

15. Personal covenants are also said to be transitive and intransitive; the former, when the duty of performing them passes to the covenantor’s representatives; the latter, when it is limited to himself; as, in the case of teaching an apprentice. Bac. Ab. h.t.

16. As they affect each other in the same deed, covenants may be divided into three classes. 1st. Dependent covenants are those in which the performance, of one depends on the performance of the other; there may be conditions which must be performed before the other party is liable to an action on his covenant. 8 S. & R. 268; 4 Conn. 3; 1 Blackf. 175; John. 209; 2 Stew. & Port. 60; 6 Cowen 296; 3 Ala. R. 330; 3 Pike 581; 2 W. & S. 227; 5 Shep. 232; 11 Verm. 549; 4 W. C. C. 714; Platt on Cov. 71; 2 Dougl. 689; Lofft, 191; 2 Selw. N. P. 443, 444. To ascertain whether covenants are dependent or not, the intention of the parties is to be sought for and regarded rather than the order or time in which the acts are to be done, or the structure of the instrument, or the arrangements of the covenant. 4 Wash. C. C. 714; 1 Root, 170; 4 Rand. 352; 4 Rawle, 26; 5 Wend. 496; 2 John. 145; 13 Mass. 410; 2 W. & S. 227; 4 W. & S. 527; Willis, 157; 7 T. R. 130; 8 T.R. 366; 5 B. & P. 223; 1 Saund. 320 n.

17. – 2d. Some covenants are mutual conditions to be performed at the same time; these are concurrent covenants. When, in these cases, one party is redy and offers to perform his part, and the other refuses or neglects to perform his, he who is ready and offers, has fulfilled his engagement, and may maintain an action for the default of the other, though it is not certain that either is obliged to do the first act. 4 Wash. C. C. 714; Dougl. 698; 2 Selw. N. P. 443; Platt. on Cov. 71.

18.- – 3d. Covenants are independent or mutual, when either party may recover damages from the other for the injury he may have received by a breach of the covenants in his favor, and when it is no excuse for the defendant to allege a breach of the covenants on the part of the plaintiff. 2 Wash. C. C. R. 456; 5 Shepl. 372; 4 Leigh, 21; 3 Watts & S. 300; 13 Mass. 410; 2 Pick. 300; 2 John. 145; 10 John. 203; Minor 21; 2 Bibb, 15; 3 Stew. 361; 1 Fairf. 49; 6 Binn. 166; 2 Marsh. 429; 7 John. 249; 5 Wend. 496; 3 Miss. 329; 2 Har. & J. 467; 4 Har. & J. 285; 2 Marsh. 429; 4 Conn. 3.

19. Covenants are affirmative and negative. 1st. An affirmative covenant is one by whicb the covenantor binds himself that something has already been done or shall be performed hereafter. Such L convenant will not deprive a man of a right lawfully enjoyed by him independently of the covenant; 5 as, if the lessor agreed with the lessee that he shall have thorns for hedges growing upon the land, by assignment of the lessor’s bailiff; here no restraint is imposed upon the exercise of that liberty which the law allows to the lessee, and therefore he may take hedge-bote without assignment. Dy. 19 b, pl. 115; 1 Leon, 251.

20. – 2d. A negative covenant is one where the party binds himself that he has not performed and will not perform a certain act; as, that he will not encumber. Such a covenant cannot be said to be performed until it becomes impossible to break it. On this ground the courts are unwilling to construe a covenant of this kind to be a condition precedent. Therefore, where a tailor assigned his trade to the defendant, and covenanted thenceforth to desist from carrying on the said business with any of the customers, and the defendant in consideration of the performance thereof, covenanted to pay him a life annuity of 190, it was held that if the words “in consideration of the performance thereof,” should be deemed to amount to a condition precedent, the plaintiff would never obtain his annuity; because as at anytime during his life he might exercise his former trade, until his death it could never be ascertained whether he had performed the covenant or not. 2 Saund. 156; 1 Sid. 464; 1 Mod. 64; 2 Keb. 674. The defendant, however, on a breach by plaintiff, might have his remedy by a crossaction of covenant. There is also a difference between a negative covenant, which is only in affirmance of an affirmative covenant precedent, and a negative covenant which is additional to the affirmative covenant. 1 Sid. 87; 1 Keb. 334, 372. To a covenant of the former class a plea of performance generally is good, but not to the latter; the defendant in that case must plead specially. Id.

21. Covenants, considered with regard to the parties who are to perform them, are joint or several. 1st. A joint covenant is one by which several parties agree to perform or do a thing together. In this case although there are several covenantors there is but one contract, and if the covenant be broken, all the covenantors living, must be sued; as there is not a separate obligation of each, they cannot be sued separately.

22. – 2d. A several covenant is one entered into by one person only. It frequently happens that a number of persons enter into the same contract, and that each binds himself to perform the whole of it; in such case, when the Contract is under seal, the covenantors are severally bound for the performance of it. The terms usually employed to make a several covenant are ” severally,” or ” each of us.” In practice, it is common for the parties to bind themselves jointly and severally, and then the covenant is both joint and several. Vide Hamm. on Parties 19; Cruise, Dig. tit. 32, c. 25, s. 18; Bac. Ab. Covenant D.

23. Covenants are executed or executory. 1st. An executed covenant is one which relates to an act already performed. Shep. To. 161.

24. – 2d. An executory covenant is one to be performed at a future time. Shep. To. 161.

25. Covenants are obligatory or declaratory. 1st. An obligatory covenant is one which is binding on the party himself, and shall never be construed to raise a use. 1 Sid. 27; 1 Keb. 334.

26. – 2d. A declaratory covenant is one which serves to limit and direct uses. 1 Sid. 27; 1 Heb. 334.

27. Covenants are principal and auxiliary. 1st. A principal covenant is one which relates directly to the principal matter of the contract entered into between the parties; as, if A covenants to serve B for one year.

28. – 2d. An auxiliary covenant is one, which, not relating directly to the principal matter of the contract between the parties, yet relates to something connected with it; as, if A covenants with B, that C will perform his covenant to serve him for one year. In this case, if the principal covenant is void, the auxiliary is discharged. Anstr. 256.

29. Covenants are legal or illegal. 1st. A legal covenant is one not forbidden by law. Covenants of this kind are always binding on the parties.

30. – 2d. An illegal covenant is one forbidden by law, either expressly or by implication. A covenant entered into, in violation of, the express provision of a statute is absolutely void. 5 Har. & J. 193; 5 N. H. Rep. 96; 6 N. H. Rep. 225; 4 Dall. 298; 6 Binn. 321; 4 S.& R. 159; 1 Binn. 118; 4 Halst. 252. A covenant is also void, if it be of immoral nature; as, a covenant for future illicit intercourse and cohabitation; 3 Monr. 35; 3 Burr. 1568; S. C. 1 Bl. Rep. 517; 1 Esp. 13; 1 B. P. 340; or against public policy; 5 Mass. 385; 7 Greenl. 113; 4 Mass. 370; 5 Halst. 87; 4 Wash. C. C. 297; 11 Wheat. 258; 3 Day, 145; 2 McLean, 464; 7 Watts, 152; 5 Watts & S. 315; 5 How. Miss. 769; Geo. Decis. part 1, 39 in restraint of trade, when the restraiut is general; 21 Wend. 166; 19 Pick. 51; 6 Pick. 206; 7 Cowen, 307; or fraudulent between the parties; 5 Mass. 16; 4 S. & R. 488; 4 Dall. 250; 7 W. & S. 111; or third persons; 3 Day, 450; 14 S. & R. 214; 3 Caines, 213; 15 Pick. 49; 2 John. 286 12 John. 306.

31. Covenants, in the disjunctive or alternative, are those which give the covenantor the choice of doing, or the covenontee the choice of having, performed one of two or more things at his election; as, a covenant to make a lease to Titus, or pay him one hundred dollars on the fourth day of July, as the covenantor, or the covenantee, as the case may be, shall prefer. Platt on Cov. 21.

32. Collateral covenants are such as concern some collateral thing, which does not at all, or not so immediately relate to the thing granted; as, to pay a sum of money in gross, that the lessor shall distrain for rent, on some other land than that which is demised, or the like. Touchs. 161; 4 Burr. 2446; 2 Wils. R. 27; 1 Ves. R. 56. These covenants are also termed covenants in gross. Vide 5 Barn. & Ald. 7, 8; Platt on Cov. 69, 70.

COVENANT NOT TO SUE. This is a covenant entered into by a party who had a cause of action at the time of making it, and by which he agrees not to sue the party liable to such action.

2. Covenants of this nature, are either covenants perpetual not to sue, or covenants not to sue for a limited time; for example, seven years.

3. – 1. Covenants perpetual not to sue. These will be considered with regard to their effect as relates, 1. To the covnantee; 2. To his partners or co-debtors.

4. – 1. A covenant not to sue the covenantee at all, has the effect of a release to him, and may be pleaded as such to avoid a circuity of action. Cro. EIiz. 623; 1 T. R. 446; 8 T. R. 486; 1 Ld. Raym 688; S. C. Holt, 178; 2 Salk. 575; 3 Salk. 298; 12 Mod. 415, 548; 7 Mass. 153, 265; 16 Mass. 24; 17 Mass. 623. And see 11 Serg. & Rawle, 149.

5. – 2. Where the covenantee is jointly and severally bound with another to the covenantor, a covenant not to sue him will be no protection to the other wbo may be sued on his several obligations and such a covenant does not mount to a release to him. 2 Salk. 575; S. C. 12 Mod. 551; 8 T. R. 168; 6 Munf. 6; 1 Com. 139; 4 Greenl. 421; 2 Dana, 107; 17 Mass. 623, 628; 16 Mass. 24; 8 Mass. 480. A covenant not to sue, entered into by only one of several partners, cannot be set up as a release in an action by all the partners. 3 P. & D. 149.

6. – 2. Covenant not to sue for – a limited time. Such a covenant does not operate as a release, nor can it be pleaded as such, but is a covenant only for a breach of which the obliger may bring his action. Carth. 63; 1 Show. 46; Comb 123, 4; 2 Salk. 573; 6 Wend. 471.

COVENANT FOR QUIET ENJOYMENT. A covenant usually contained in a lease, by which the lessor covenants or agrees that the tenant shall quietly enjoy the premises leased. 11 East, 641.

2. Such a covenant is express or implied; express, when it is so mentioned in the deed it is implied, either from the words used, or from the conduct of the lessor. The words “grant” or “demise” are held to amount to an implied covenant for quiet enjoyment, unless afterwards restrained by a qualified express covenant. 1 Chit. Pr. 344.

COVENANT TO STAND SEISED TO USES. A species of conveyance which derives its effect from the statute of uses, and operates without transmutation of possession.

2. By this conveyance, a person seised of lands, covenant’s that he will stand seised of them to the use of another. On executing the covenant, the other party becomes seised of the use of the land, according to the terms of the use; and the statute immediately annexes the possession to the use. This conveyance has the same force and effect as a common deed of bargain and sale; the great distinction between them is, that the former can only be made use of among near domestic relations, for it must be founded on the consideration of blood or marriage. 2 Bl. Com. 338; 2 Bouv. Inst. n. 2080; 4 Kent Com 480; Lilly’s Reg.h. t.; 1 Vern. by Raithby, 40, n.; Cruise, Dig. tit. 32, c. 10; 11 John. R. 337; 1 John. Cas. 91; 7 Pick. R. 111; 1 Hayw.,R. 251, 259, 271, note; 1 Conn. R. 354; 20 John. R. 85; 4 Mass. R. 135; 4 Hayw. R. 229; 1 Cowen, R. 622; 3 N. H. Rep. 234; 16 John. R. 515; 9 Wend. R. 641; 7 Mass. R. 384.

COVENANT FOR TITLE. An assurance to the purchaser that the grantor has the very estate in quantity and quality which he purports to convey. 11 East, 642. See 4 Dall. Rep. 439.

COVENANTEE. One in whose favor a covenant is made.

COVENANTOR. One who becomes bound to perform a covenant.

2. To become a covenantor a person must be sui juris, and intend, at the time of becoming bound, to covenant to perform some act mentioned in the covenant. He can be discharged from his covenant by performance, or, by the act of the covenantee, as the non-performance of a condition precedent, a release, or a rescission of the contract.

COVENANTS PERFORMED, pleading. In Pennsylvania, the defendant may plead covenants performed to an action of covenant, and upon this plea, upon informal notice to the plaintiff, he may give anything in evidence which he might have pleaded. 4 Dall. 439; 2 Yeates, 107; 15 S. & R. 105. And this evidence, it seems, may be given in the circuit court without notice unless called for. 2 Wash. C. C. R. 456.


1.4 Crafting and Preparing the Lawsuit

Updated 2013

As part of the process for deciding upon the best advocacy strategy, the attorney will have preliminarily assessed the legal and factual bases for the claims that the client wishes to assert.  If counsel has determined that litigation is the most appropriate vehicle for advancing these claims, the process of crafting and preparing the lawsuit will begin in earnest.  The key to this process is developing the core legal theory or legal theories to be presented to the court and marshaling the factual evidence needed to support these theories.

1.4.A. Developing the Legal Theory

As the client describes the problems to be addressed, the attorney will begin analyzing whether the acts or omissions of concern violate any constitutional principles, laws or regulations, or federally approved plans guiding state action or common law norms.  As this analysis unfolds, consider what public or private entities or individuals are arguably responsible for the harm alleged.  In exploring which legal claims will be asserted in the lawsuit, it is useful to start with some preliminary legal brainstorming.  Make a list of the types of legal protections that may be infringed by the detrimental actions the client describes.

Be creative in developing a comprehensive list of possibilities. Chapter 5 of this Manual describes many potential claims in detail.  A helpful approach is to use a hierarchy of legal claims and, then, to apply it to each potential defendant in the case:

  • Is there a federal constitutional right or protection that a defendant is violating?
  • Is there a state constitutional right or protection that a defendant is violating?
  • Is there a federal statute or regulation that a defendant is violating?
  • Is there a state or local statutory right or regulation that a defendant is violating?
  • Is there a federally approved state/county plan that a defendant is violating?
  • Is there a federal, state or local common law right or norm that a defendant is violating?
  • Is the defendant engaging in action that violates the federal or state Administrative Procedure Act?

Do not prematurely disregard or discount potential claims until your legal research leads you to conclude that there is no basis for proceeding with such a claim.  Assemble and study each statutory and regulatory provision arguably implicated in the issue presented by your client.  Consider the plain meaning of these provisions, cross-referenced provisions, exceptions, and any indications of discretion afforded the potential defendant.

Next explore whether other courts have considered the legal claims you may raise, or similar claims.  Starting with your jurisdiction, examine relevant opinions from both federal and state courts.  However, be aware that reliance solely on computerized research tools will miss unreported cases or cases that have not yet been decided.  Research the database of Clearinghouse Review articles./1/ Check if the national support centers know of litigation relating to the issue the client is experiencing./2/  Consult with attorneys in the relevant practice area to determine whether the potential issue has been litigated and, if not, why not.

In examining what other courts have done, pay particular attention to potential barriers to enforcing the relevant constitutional provision, statute, regulation or plan and which potential defendants have asserted these defenses.  Consider who was named as defendants in these cases and what relief was sought. This MANUAL contains extensive discussions of many of these possible limitations, from the case or controversy requirements, to Section 1983, to immunity.  If you have identified particularly useful or interesting federal cases, and they are relatively recent, you should be able to access pleadings and briefs filed in the case through PACER, although there is a modest fee for doing so.  Counsel in these cases may also be a valuable source of both briefs and advice.

If your client does not need emergency relief, prepare a litigation memo setting out the legal claims, the strength of the claims, and the pros and cons of bringing specific claims.  Identify the applicable statutes and regulations and key cases.  Drafting the memo will serve as a useful device to refine your thinking, document your research, share with colleagues, convert into pleadings or briefs, and defend, if necessary, against a Rule 11 motion.  If you recommend using a new or novel legal claim, it is wise to discuss your research conclusions with a more experienced colleague or an expert in the practice area who may be located outside your program.  As the litigation proceeds, revisit this memorandum, but be open to considering other claims or approaches your initial research missed or which have surfaced as a result of discovery or other case developments.

After identifying the best legal claims for your client, meet with the client to explain both the opportunities and any barriers to prevailing on the claims.  Provide your assessment as to the advantages and disadvantages of each claim, the potential nature of relief as to each, and, if appropriate, the pros and cons of filing in alternative fora.  As discussed above, make sure that the client has a clear understanding of the nature of the claims, the client’s participation in discovery, the time considerations required, and the prospect of relief.  If litigation cannot provide all the relief sought by the client, counsel the client on whether this additional relief is available through another form of advocacy.  Clients may also have unrealistic expectations about the likelihood and extent of monetary damages, and they may not understand the implications of a monetary recovery on any needs-based public assistance upon which they may rely./3/  Discuss and document potential limitations, if not prohibitions, on monetary recoveries./4/

Finally, draft a paragraph that will serve as the core theory of the case — the central defining idea that drives your lawsuit.  It should summarize, in a brief and persuasive way, the nature of the wrong committed and relief sought to remedy it.  Written in lay, rather than legal terms, this fundamental message may be repeated in the opening paragraph of the complaint, in a press release, or at the beginning of an oral argument.  This clearly defined motivating concept behind the lawsuit should remain the touchstone that guides the litigation.

1.4.B. Factual Investigation

Sound legal practice, as well as Rule 11, require counsel to engage in a reasonable factual investigation prior to filing a lawsuit.  The first source of information about the case usually will be the client.  There are many texts devoted to the art and practice of client interviewing./5/  The scope of this Manual does not permit a review of interviewing techniques. Suffice it to say that effective client interviewing is essential to the success of litigation.  A sloppy interview can lead to missed facts, omitted legal claims, litigation delays and worse.  Young attorneys should conduct their first few client interviews in the presence of a senior colleague prepared to give detailed feedback.  If you think a client’s problem will lead to a lawsuit, it is a good idea to have an experienced litigator present for one of the interviews with the client.

1.4.B.1 Your Client

Before filing the complaint, you will likely interview or review the facts with the client for several purposes and on several occasions.  At intake, your focus will be on obtaining an overview of the facts and legal issues to see whether the problem meets your program’s priorities, to ascertain the immediacy of the client’s need, and to determine if the client meets income and other program requirements.  At your first interview, it is good practice to tell the client that she can speak with you in confidence and that if there are facts the client does not want you to disclose, you will keep them secret.  Once eligibility for service has been established, you will need to conduct a detailed interview in order to establish an attorney-client relationship, complete a retainer and learn necessary facts so that you can conduct relevant legal research, investigate further facts, evaluate the merits of the case, and determine your case strategy.  This research may well require you to conduct additional interviews.  Use these opportunities to explore additional issues of potential legal relevance that your client may not have initially disclosed.  Make sure you understand the facts clearly.  During the pre-filing interview, review each factual allegation set forth in the complaint with the client to ensure it is complete and accurate.  Review all documents that the client may have that are relevant to these factual assertions.  These interviews also permit you to gauge the client’s demeanor and credibility.  If a client has cognitive problems or suffers from mental illness, for example, you can assess limitations on capacity and determine whether it is possible to proceed.  These interviews also offer an opportunity to ask about witnesses and others who may have encountered the same problem faced by your client.

Clients often do not understand why they have to tell their story repeatedly; they may feel that counsel are not listening or understanding them.  Thus, being clear about the purpose of the interview and letting clients know early that they will have to tell the same story several times can ease the attorney-client relationship.  You may also need to ask questions that upset or offend the client.  Use this as an opportunity to educate your client about why the questions are important and relevant.  If you establish that you are on the client’s team and are asking the kind of questions the judge or other side is likely to ask, the client will understand that you are trying to help./6/

At a pre-filing interview, ask the client to sign a formal written retainer or engagement letter.  Have the client sign releases to obtain information from health care providers, housing providers, schools, police departments, and other entities.  It is wise to request documents from these third parties early in your factual investigation.  Not only is there often delay in receiving them, but also when received, these documents may shed light on additional sources of information or lead you to reevaluate the strength of the client’s claim.

1.4.B.2. Informal Investigation

The goal of a pre-filing factual investigation is twofold.  First, you must understand the facts so that you can advocate most effectively.  Second, you can obtain evidence for trial or leads on information to request in discovery.  Evidentiary constraints should not restrict your informal investigation.  Although you should attempt to obtain the most credible form of information available by, for example, notarizing witness statements or locating original documents, obtaining witness statements containing hearsay or unauthenticated documents is acceptable.  You can deal with the evidentiary issues should they arise later in the litigation.  To do so, however, you will need to keep careful track of when, how, and under what circumstances you received particular information and documents.

The extent of a pre-filing investigation depends on the needs of the case, time restrictions, and your available resources.  You need to be flexible and creative in identifying sources of information other than the client.  When appropriate, and with the consent of the client, interview the family, associates, friends, the client’s coworkers and other relevant persons who may have information regarding the case.  Be mindful of, and comply with, you state’s version of Model Rule of Professional Responsibility 4.2.   Such individuals may be indispensable sources of information and should be interviewed with an eye to obtaining detailed statements at the interview.  After completing the interview and preferably before leaving, prepare a handwritten statement in the first person and in the interviewee’s words, and present it to the individual to read and sign.  You can return later with a typed statement to be signed and, if necessary, notarized./7/  Whenever possible, the statements should be in declaration or affidavit form so that they may be used to support motions, such as motions for preliminary injunction, or to oppose motions for summary judgment.

Talk to other people affected by the challenged policy or practice.  Reach out to organizations likely to be allies and who may know others suffering from similar problems.  In a recent case challenging Medicaid co-payments, for example, plaintiffs’ lawyers printed 2” x 3” yellow cards explaining federal Medicaid rights and distributed thousands of them through ally organizations.  Since the cards included the legal aid office’s phone number, persons injured by the unlawful practice called for advice.  These calls presented a rich source of plaintiffs and facts.  Read newspaper and magazine accounts.  Examine relevant governmental or academic reports.  Students and volunteers can be very helpful in the early stages of investigation.  They can take photographs, call similarly situated individuals, and camp out in front of offices to interview people.

The Internet can be a valuable source of information.  If your office uses Lexis, Westlaw, or any other online legal or information service, consulting with your service representative about needed information is well worth the time.  You may find that some resources are available at no added cost.  Some resources targeted to non-attorneys may have information about businesses, corporations, investors, and owners.  You can also search dockets to identify other cases in which the parties, attorneys, and judges have been involved.  You can access a variety of legal aid list-serves usually by signing up with a national backup center and list-serves sponsored by national attorney associations, such as the National Association of Consumer Advocates and the Association of Trial Lawyers of America.  A quick post about a potential defendant may result in networking with an attorney who has handled a case against the same party and is willing to share discovery and strategy with you.

A potentially important source of facts may be those persons arrayed on the other side.  These may be staff of a housing authority, a state or county welfare agency, a school or juvenile detention facility, or a private or public employer.  The temptation is to ignore such people until after suit is filed, when discovery devices may be employed.  Usually, however, investigation should extend to the opposition prior to suit for several reasons./8/  The suit may dry up sources of information or create such hostility that impedes cooperation.  Information gathered prior to suit will help in drafting pleadings and framing theories.  Full investigation prior to suit will deflect motions for sanctions under Rule 11.  And, you may obtain information that will lead to a settlement.

Inquiries and investigation, pursued consistent with Rule 4.2, directed toward the opposition will sometimes meet with surprising success.  For instance, employees in a state or county agency may question or oppose policies that they enforce.  Prior to suit, they may be free and willing to meet and discuss those policies and make information or materials available.  Also, before litigation is filed, agencies may have ongoing relations or meetings with clients; during such meetings, relevant information may be disclosed.  Similarly, required or optional administrative hearings may offer avenues for obtaining information.  Some administrative procedures permit some measure of discovery.  Documents or witnesses may be subpoenaed by the hearing officer or the attorney, and there is typically an opportunity to review and copy a client’s file.  During the course of the hearing, government employees or hearing officers may be asked about or may disclose information regarding policies and their enforcement.  In such cases, it is useful to ensure the hearing is recorded.  At the same time, if you are too overt in seeking information to support future litigation, these employees may be less forthcoming and less willing to participate in pre-filing dispute resolution.  Openness versus subtlety is a strategy consideration during all stages of litigation.

Most states have sunshine laws or public record laws that provide full or limited access to agency records, including plans, communications and internal reports.  Indeed, many such records exist online in an agency website or electronic reading room. On the federal level, there is the Freedom of Information Act (FOIA)./9/ Apart from these statutory or regulatory provisions, formal requests or letters of inquiry may produce useful information that can help you draft the complaint. At the same time, the absence of responsive information may be potentially valuable. The disclosure of the absence of written policies and procedures governing the termination of benefits may form the basis of claims that this lack of written guidance violated both due process principles and the local administrative procedure act. If a FOIA request is ignored or documents improperly withheld, but are regarded as essential, a suit to enforce the Freedom of Information Act may be needed.  Prior to filing suit, it is often effective to send the draft complaint to the agency general counsel and again demand the documents requested.

In addition, many local and state government agencies must periodically report to the sources of their appropriations.  Federal and state oversight agencies may similarly audit or analyze the agency.  Such reports and audits can be enormously valuable in surfacing information regarding agency policies and critiques of them.  Careful advocacy with the monitoring agency or committee may lead it to inquire further and require the monitored agency to prepare additional reports.  Once data is obtained, the next step is analyzing it.  If you do not have facility with spreadsheets, mapping software, or other programs that can turn numbers into information, you may be able to use a graduate student as a volunteer or short-term consultant.  Local universities can be great sources of help for statistical, economic, and sociological analysis. Some professors have been willing to assign legal services case data analysis as a class or homework project.

Likewise, investigation directed toward related disciplines may be useful.  A housing case may be helped by literature or expertise from the fields of social work, architecture, or planning.  A welfare case may be assisted by persons who teach, write, or study in the social work or public health fields.  You may want your client to see a psychologist to evaluate psychological harm.  A corrections case may turn upon testimony or research from experts in corrections or criminal justice.  As attorneys, we tend to be narrow in training and perspective.  Other disciplines may yield theories for litigation, authority, and scholarship as well as expert witnesses.

Pre- or post-filing consultation with experts raises discovery issues./10/  Whether information relating to your expert is discoverable will turn largely on whether the expert will testify at trial.  If you have merely consulted with an expert in connection with preparing for litigation, information relating to the expert is discoverable only if permitted by Federal Rule of Civil Procedure 35(b) or if extraordinary circumstances are shown.

1.4.B.3. Organizing Factual Information

Organization of the facts and the file should begin as soon as you know that you will commence litigation.  Your system should be flexible enough to accommodate growth of the file.  The particular way that you organize your file will depend on its potential size, the type of case, your personal style, and your program’s use of computer case management tools.

Whatever organizational system you choose, you must be able to locate quickly information when you need it, and someone else should be able to find the information easily.  The latter is a critical piece of responsible lawyering—if someone has to take over the case from you or cover for you in your absence, your client’s interests must not be compromised.  Almost all federal litigation is substantial enough to require an index to the file as a whole and an index or master list of evidence. Software is available to help you track documents and evidence.

As you organize and create your file, keep in mind that you are organizing each of the following types of documents:

  • Pleadings
  • Correspondence (including e-mail messages)
  • Other court filings, such as motions
  • Records of telephone calls
  • Interview notes and other informal investigation
  • Discovery, including demands, responses, and the documents produced
  • Documents that your client supplies or you locate during investigation
  • Legal research
  • Other research
  • Time records

If you are unsure what system will work for you, using an accordion folder for most of these categories is a good place to start.  You can then create subdivisions with file folders for each motion, factual topic, or witness.  Correspondence and phone logs should be secured into a file to ensure that the chronology of the case development is preserved.  Use scanning technology to store facts in your computer.

Whether your program is restricted or not, you must keep accurate time records.  The biggest mistake attorneys make in obtaining attorney fees is to under-record time and to underestimate the time that they spent if they do not record it contemporaneously./11/  If your adversary accuses you of non-cooperation, ethical violations, or rule violations, accurate and detailed time records ensure that you will be able to document how your case time was spent.  Again, many vendors offer timekeeping software.

1.4.C. Impact, Law-Reform, and Test-Case Litigation

Your primary purpose in bringing litigation may be to get your individual client the relief to which she is entitled under the law. Or, you may have a much broader purpose.  You may want to ensure that the legal violation does not recur, to compensate past victims of the illegal action, or to change the law.  When the outcome of your case will affect large numbers of people, your suit may be considered impact litigation.  When the goal of your litigation is to change the law or the way the law is interpreted and applied, your suit may be considered law-reform or test-case litigation.

Bringing this type of litigation requires extra care and attention on several levels.  First, exploring uncharted legal territory or seeking to revisit and change existing precedent may implicate Rule 11./12/  Particularly diligent and documented legal research is required in such cases, especially because a prompt response to a Rule 12(b)(6) motion is likely to be required.  Such cases also require careful client counseling on the reasonable likelihood of success and appeal of adverse decisions.  The possibility of an adverse decision requires a careful assessment of whether the potential for such new precedent would worsen the legal landscape of your jurisdiction, thereby impairing the interests of clients, client organizations or other stakeholders.  The possibility of appeal requires consideration of the composition of the relevant appellate court.  If the court is regarded as hostile to the sort of claim your clients present, it may be best to consider bringing the case or encourage the bringing of the case in another jurisdiction, or pursuing the issue in another forum.  The likelihood of appeal also means the lawyer needs to assemble a solid appellate record.

Second, be sensitive to the approach taken to put the case together.  In some cases, you will bring test-case or law-reform litigation based on an issue that a client brings into your office; your client seeks a solution to his individual problem, but the resolution of the case will have broad impact.  In other cases, your program may identify an issue worthy of litigation, but have no client to serve as the plaintiff.  Such clients may not have yet been identified, they may be hesitant to serve as plaintiffs, or their individual claims have been mooted as a result of successful administrative advocacy.  If a case is certified as a class action under Rule 23, class representatives may need to be prepared to compromise their individual goals in developing case strategy or reaching a settlement, and this must be discussed with potential plaintiffs in advance of filing and seeking class certification.

The process of identifying potential clients and plaintiffs may implicate restrictions on soliciting clients, such as those contained in Model Rule of Professional Conduct 7.3./13/  Nonetheless, lawyers may inform potential clients of their rights./14/ Nonprofit organizations may solicit potential litigants to further their public policy goals./15/  By working with community groups you can generally avoid ethical or legal services restriction barriers to locating affected individuals and potential plaintiffs./16/  Nonetheless, care should be taken.  It is wise to consult your jurisdiction’s ethical rules and any state bar formal or informal opinions on issues relating to solicitation of clients.

Even when it is difficult to identify potential plaintiffs to challenge a particular law or practice, the legal aid lawyer should not forget the maxim “bad facts make bad law.”  Particularly when advancing a difficult or novel legal claim, unsympathetic clients or those perceived to be undeserving can reduce the chances of success. A classic illustration of this principle occurred in Lassiter v. North Carolina Department of Social Services./17/  Lassiter presented the question of whether due process required providing counsel to an indigent parent in a proceeding to terminate parental rights.  Given the number of termination proceedings that take place in states that did not provide counsel, selecting a client who appeared to be a victim of an uncaring bureaucracy would have been possible. Instead, the petitioner chosen to present the question was a convicted murderer who had no real hope of release from prison before her child became an adult and who had been provided counsel in an earlier proceeding.  The Supreme Court rejected her claim in a 5-to-4 decision; one member of the majority concurred, conceding that the question was extremely close. The answer might have been different if a more sympathetic client had been chosen./18/

In contrast, when attorneys sought to challenge the provisions of the Food Stamp Act enacted to eliminate unrelated members of a household from food stamp eligibility, they recognized the importance of a sympathetic client.  The lawyers chose as the lead plaintiff Jacinta Moreno, a farmworker forced by economic circumstances to share housing with nonrelatives.  The choice of plaintiff shifted the focus of the litigation from the propriety of seeking to eliminate hippies’ eligibility for food stamps to the unanticipated effect of the provision on the neediest potential beneficiaries. The plaintiff prevailed in the Supreme Court by a 5-to-4 margin./19/  Similarly, in the Lightfoot v. District of Columbia case, the lawyers recognized that pre-termination process does not depend on the underlying merits of the continued claim for benefits.  Nonetheless, they attempted to select plaintiffs who were substantively deserving of these benefits and who suffered demonstrated harm when they were terminated.  In addition, in selecting a plaintiff who had not yet been terminated, but who had a stake in the content of future termination rules, the plaintiffs’ lawyers selected a plaintiff who had been terminated in the past and had years of difficult experiences with the defendant agency.

Third, coordination with other legal aid programs, state and national backup centers, and other organizations concerned with the issue is important when you engage in test-case or law-reform litigation.  By definition, your case may affect a large number of people or may change the law.  Although you may be sure that your outcome is desired and your strategy a good one, you should ensure that you fully understand the implications of your litigation and that your approach does not conflict with other reform projects underway.  Similarly, in large pieces of litigation, you may be working with multiple co-counsel, amici, and clients.  You must coordinate and plan among co-counsel and others.  You should have written co-counseling agreements outlining who will be the lead counsel, what their duties will be, who has authority to make decisions, how regularly you will communicate through conference calls or meetings for strategy discussions and updates, who is responsible for covering litigation costs, and who is responsible for any attorney fee aspects of the litigation.

As noted above, legal services restriction regulations do not prevent the legal services attorney from engaging in law-reform or test-case litigation.  The regulations restrict certain activities and may alter strategic choices.  However, the creative attorney can still change and improve the system, the laws, the rules, and the practices that affect clients’ lives.  If you not only win your case, but also insist on a broader solution, the eviction case on which you go to court next week may be the vehicle for changing the way that the housing authority gives notices to all its residents.  You may file a case to obtain unemployment benefits for your client and change the definition of misconduct in your state.  The form of the litigation may be different, but the commitment, intelligence, creativity, and zeal of legal aid attorneys are needed to provide our clients with meaningful and effective representation.

1.4.D. Pre-filing Negotiation and Offers of Settlement

Most cases are resolved through settlement rather than through trial or judicial determination.  Failing to consider and prepare for settlement possibilities early in your planning is foolish. You must prepare your client for the settlement process during one of your initial meetings.  The client must understand the ultimate goal of the litigation, the risks in achieving it, and that there may be very good reasons to be pleased with less than what you are seeking in the complaint. You should explain to the client that what constitutes an acceptable settlement will change over time.  As new evidence is evaluated, the investment in the case increases, the assessment of risks changes, and the strategy of the defendants and actions they take may undermine or support claims.

Sometimes an attempt to settle a case before filing litigation can be very effective./20/  A demand letter accompanied by a draft complaint will get attention.  If time permits, you may also include a draft order or consent decree.  A settlement before filing is attractive to defendants who do not want negative publicity or a record of involvement in litigation.  It can be useful when the defendant wants to comply with the law but you have been unsuccessful in getting the issue to the attention of the person with the authority to make the change.  A pre-filing attempt to settle can be a chance to obtain informal discovery as you ascertain the defendant’s position and reasons for it. The disadvantages of a pre-filing attempt to settle are the loss of surprise, the possibility of the defendant rendering your claims moot, and the delay necessary to engage in pre-filing negotiations.  If these efforts result in the prospect of useful negotiations, protect your client’s interest by drafting and entering into a tolling agreement to toll the statute of limitations during these talks.

Even where the adverse action seems to be final and from the highest authority, a formal request for settlement before litigation may be effective if it sets out the facts, clearly explains legal claims and how the defendant is violating the law, states with precision what you want the other side to do, and sets a clear deadline by which to take action.  If you state that your client will sue if a settlement is not reached by a date certain, you must be prepared to follow through.  If you make such a threat and do not carry it out, you will lose your credibility and adversely affect future negotiating strength.

A demand letter should be polite but firm.  It should make clear the strength of the case and be suitable to attach as an exhibit to the complaint or a motion.  The objective is to produce a letter that, when read by a judge, will evoke incredulity at the recipient’s noncompliance.  When time does not permit writing such a letter, a telephone call can accomplish the same result. Confirm the call later by letter. Even where the adverse action is taken deliberately, the demand letter—especially if coupled with a draft complaint—will send the message that your client has a capable, determined, and knowledgeable attorney who is about to sue.  This may initiate the involvement of your opposition’s counsel, who may be able to talk sense into your opponent or urge settlement efforts.  At the least, the letter and documents provided can serve as a starting point for post-filing settlement discussions. Read more.

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