In May of this year, the Supreme Court ruled that Iqbal, a Pakistani Muslim arrested after the September 11th attacks, could not sue former Attorney General John Ashcroft or current FBI director Robert S. Mueller III for “harsh conditions of confinement” that were based on “his race, religion, or national origin, in contra-vention of the First and Fifth Amendments.” Ashcroft v. Iqbal 556 U. S. ____ (2009) (slip copy).

The Court held that plaintiffs must include in their initial pleadings “substantial,” not “threadbare,” factual assertions. This is a huge step away from the prior standard of “notice pleading.” Because Iqbal’s complaint didn’t have these “substantial” assertions and evidence to support his allegations, he was barred from bringing the suit. The Court said that allegations in Iqbal’s complaint “are conclusory and not entitled to be assumed true.” Yet allegations in complaints are generally assumed to be true, unless refuted in the defendant’s answer. Now trial judges are being forced to decide whether each statement in a complaint is a statement of fact or is a conclusion, opening the door to judicial bias.

Plenty of defense attorneys have already started using the “Iqbal standard” to challenge plaintiffs’ lawsuits at the pleading stage, and plaintiffs attorneys, civil rights groups, and consumer groups are ready to fight back. These attorneys, civil rights and consumer groups met last week to plan a strategy to undo the Iqbal ruling. Their efforts will be targeted at Congress as well as the process of rule making for federal courts. Hearings in the House and Senate are being  scheduled for October.

But why are plaintiffs’ attorneys so upset? Andrew Gillin, managing partner of GJEL and plaintiffs’ attorney says, “They contend that the current two step process [pleading, and then discovery] is the only way to prevent corporate and government defendants from tailoring their policies to essentially hide the information that plaintiffs have solid reasons to suspect, but insufficient detail to meet the new pleading standard.” In suits about workplace discrimination, for example, it’s difficult to prove anything without access to documents from the company such as reviews and personnel files.

Defense attorneys say that the Iqbal standard weeds out weak lawsuits, and will reduce the caseload that is placed on courts. And though this might be true in part, the standard also weeds out cases that might be strong later–if given the chance to go through the discovery process.

I remember law school, and my civil procedure classes. We learned that one of the policy motivations behind the simplicity of Rule 8(a) of the Federal Rules of Civil Procedure was to be sure that plaintiffs didn’t have to prove their case in the pleading stage–because that is often impossible, and the goal was not to discourage plaintiffs from filling a suit just because they couldn’t prove it at the outset. Rule 8(a) is as follows:

(a) Claims for Relief.
A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court’s jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

The rule aims at keeping pleadings simple. Andrew Gillin thinks that the changing standard will have an adverse effect on plaintiffs who can’t get inside the heads of the defendants during the pleading stage. “The current system works very well and functions on a level playing field,” Gillin said. “Cases of merit succeed, and those without don’t. Under this new standard, many injured individuals will never have a chance to prove the merits of their cases. This standard could be a significant bar to many plaintiffs who are simply seeking justice from the legal system.”

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Andy Gillin received his Bachelor’s Degree from the University of California at Berkeley and his law degree from the University of Chicago. He is the managing partner of GJEL Accident Attorneys and has written and lectured in the field of plaintiffs’ personal injury law for numerous organizations. Andy is a highly recognized wrongful death lawyer in California.