I should have added (first time user) that I just had a civil case thrown out of court in Arizona. The Plaintiff's counsel filed a motion to dismiss stating my complaint failed to state a claim for which relief can be granted. My attorney filed a response trying to convert the motion to dismiss to a summary judgement.
The judge agreed that no claim for relief was stated in the complaint and that my attorney couldn't rely on simply attaching an exhibit to his response to convert the motion to dismiss to a motion for summary judgement. He needed to include facts to support his request.
I am going to file a complaint with the Bar against him but I don't know what a complaint really should look like since I've never sued anyone before. That's why I'm asking.
2007-07-13 13:20:41 · 5 answers · asked by Anonymous in Politics & Government ➔ Law & Ethics
Basically, the complaint needs to allege facts (not conclusions or summaries) that, IF all of those facts were proven true, would be sufficient to prove all elements of your claim. Then, the complaint needs to request the relief (award) that you would get if you win.
Your attorney apparently made the kind of mistake that 1st year civil procedure law students make.
2007-07-13 13:39:14 · answer #1 · answered by coragryph 7 · 0⤊ 0⤋
I am a lawyer, but I'm having trouble figuring out your question.
Were you the Plaintiff or the Defendant?
If you are the plaintiff, then it is defendant's counsel who should be the one filing a motion to dismiss for failure to state claim. Every complaint has one or more "causes of action", for whatever--fraud, breach of contract, etc. Each of these causes of action has specific elements. For example, in a breach of contract action, you must claim the existence of the contract, broken promise or "breach" of the defendant, and the damages incurred as a result of the breach. If you do not include all of these elements in your complaint, it might be thrown out.
Sometimes bad things happen but when you put them all on paper, it doesn't add up to a cause of action that the courts can rule on. For example, if your complaint says something like "my computer was struck by lightning while properly stored at the defendant's home", well that's just too bad. The defendant didn't do anything negligent, it was an act of God and you are out of luck. Case dismissed.
As for converting the motion from a motion to dismiss to a MSJ, one attorney cannot convert the other's motion into anything else. In fact, one attorney cannot convert his own motion into something else. Each motion is a separate problem to be addressed the parties and the courts. But the way you state your question is totally confusing and it is really hard for me to understand what happened here.
If you are asking what a complaint looks like because you are going to write one for the State Bar, it's not that formal. Just call them up and ask them what they want you to submit. But beware, losing a motion is not usually grounds for a complaint. Someone always loses.
2007-07-13 20:40:31 · answer #2 · answered by raichasays 7 · 1⤊ 0⤋
Hey. It's not over yet. Make the attorney appeal it. Give him a chance to fix it. And why didn't your attorney know how to write a complaint him/herself? Is the attorney brand new? If you were going to file a complaint to the bar, ylou can just do it in the form of a letter. Just state what you stated here, to the bar. Bar complaints are very different than lawsuit complaints. But the bar might give the attorney a chance to fix the matter before they take any sort of punitive actions.
2007-07-13 20:36:38 · answer #3 · answered by Eisbär 7 · 0⤊ 0⤋
I would strongly suggest you get another attorney (who is not connected to the first one's law firm) to file the complaint for you. Or you can contact the bar's office and ask for further details. Remember that a complaint against an attorney with the bar is not the same as suing the attorney, so it doesn't have to be in legal format.
2007-07-13 20:37:17 · answer #4 · answered by Anonymous · 0⤊ 0⤋
State the facts in a logical order to start. If you are complaining to the bar, you need to start off by identifying the attorney and the case. They probably have an on line complaint form if you check thier web site.
State what happened in a time line format, and attach copies of all of the pleadings.
example:
1-2-07 I hired attorney Joe Smith, bar #ZZZZZZZZZZZ,
Law firm
Address
City, State
I signed an attorney retention agreement (copy attached) and he agreed to file suit on my behalf after discussing my case with me.
1-30-07 I received a copy of the complaint he filed with the court (copy attached)
and so on....
2007-07-13 20:25:31 · answer #5 · answered by Catspaw 6 · 0⤊ 0⤋