The Five Perils of "Kitchen Sink" Pleading
I often see attorneys make the mistake of filing “kitchen sink” complaints, that is, lawsuits containing redundant and/or superfluous causes of action, that turn what could be straightforward claims into messy, complicated quagmires. If your goal is to offer efficient, cost-effective litigation services for your clients that maximize their chances for recovery, “kitchen sink” pleading is almost never the way to go. Here are five reasons to avoid it:
1. Revelation of Weakness, Not Strength:
Contrary to the popular belief that “kitchen sink” lawsuits create maximum leverage and will scare the opposition into immediate submission, they may actually create the opposite effect. As Judge Bloom of the Maryland Court of Special Appeals noted in Kirgan v. Parks, 478 A.2d 713, 720 (1984) “kitchen sink” pleadings “inspire no confidence; they suggest that the pleader is not sure what his cause of action is but hopes that if he includes enough allegations the finished product will probably contain at least one cause of action somewhere within it.” Experienced defense attorneys understand that overbroad lawsuits often reflect a lack of seriousness or clarity about the issues in dispute (or both) and diminish the value that counsel assigns to a case.
2. Unnecessary Expense:
"Kitchen-sink" lawsuits almost always increase, not decrease, the costs of litigation. First, alleging multiple causes of action where fewer would suffice provides a defendant easy targets for dispositive motions, which requires that an opposition be filed, with all the attendant costs of research and drafting time. Second, you are almost certain to face discovery requests regarding claims for which you do not have adequate factual or legal support. Responding to interrogatories and locating and producing documents in support of superfluous claims creates substantial and unnecessary costs. You are much better spending your resources proving your strongest claims, not shoring up your weakest.
3. Loss of Credibility With the Judge:
There is no faster way to lose credibility with a judge right off the bat than filing a “kitchen sink” lawsuit. Trial judges will not be impressed by the length of your lawsuit, or simply assume that your client has been wronged because of the number of counts you have alleged. To the contrary, judges do not enjoy having to pore over lengthy pleadings to discern what a plaintiff is claiming and will likely assume, as Judge Bloom observed, that you’re not really sure where your true causes of action lie. You’ll make a much better impression and increase your odds of success with a concise, clear statement of your client’s claims.
4. Exposure to Sanctions:
If the increased costs of “kitchen sink” lawsuits combined with judicial skepticism do not dissuade you, be aware that pleading causes of action without the proper legal and factual support can open the door to a court imposing sanctions against you and your client. Such sanctions could include the court striking claims, imposition of attorneys’ fees and costs incurred by the other side, and in the extreme case, dismissal of your lawsuit. If you have meritorious claims, do not risk losing them or having a court enter sanctions against you for pursuing other claims that you do not need or that you cannot support.
5. Potential for Unintended Consequences:
Overbroad lawsuits also open the door to unanticipated consequences. I recently saw a lawsuit filed in state court containing over a dozen causes of action (when less than half would have sufficed), one of which inadvertently allowed the defendant to remove the case to federal court. In addition, a lawsuit with superfluous claims might have the unfortunate effect of creating unreasonable client expectations. In particular, an unsophisticated client might review a lengthy, overbroad complaint and assume that victory is guaranteed because of the laundry list of impressive sounding claims asserted. Having to explain to your client why the judge dismissed most of your claims, or why the defendant did not immediately capitulate as you predicted, can strain your relationship with your client.
This article is not to suggest that litigators should pull their punches, or that multiple, possibly overlapping counts, either pled in the alternative or otherwise, are never appropriate. Indeed, complex litigation often demands them and it is important to make sure that you have covered your bases. That said, a lot of commercial litigation can be boiled down to a handful of essential claims, and if you uncover facts in discovery that support additional causes of action, you can amend you lawsuit at that point. Accordingly, when preparing a complaint, think hard about what you need to allege to prove liability and damages, and avoid the temptation of adding anything extraneous. Among other benefits, presenting a limited number of well-pled claims that map out a defendant’s exposure to liability and damages is far more likely to persuade defense counsel to pursue settlement at the outset of a case, which very often will maximize your client’s net recovery.
Bill Goldberg is a litigator in the Bethesda, Maryland law firm of Lerch, Early & Brewer. He represents businesses and individuals in commercial and business litigation in federal and state courts across the District of Columbia, Maryland, and Virginia including breach of fiduciary duty claims, contractual disputes, business torts, trade secrets, and partnership dissolutions. For more information about "kitchen sink" lawsuits, and other litigation matters, contact Bill at (301) 907-2813 or firstname.lastname@example.org.