Writing a Formal Pleading

• The address at the top is called the VENUE or JURISDICTION. Note that it is not the NALC or Post Office, but the forum (destination) of appeal that is named here. The venue could be MSPB, EEO, NLRB, OWCP, ECAB, arbitration, or some other.

• The captioned matter in the box to the left is called the CASE NAME, or CASE IDENTIFICATION, or sometimes is simply referred to as the CAPTION. Use of Bold or italics type styles can add readability and emphasis, provided they are used with consistency and discretion.

• The case number shown on the right is called the CASE INDEX NUMBER. The DATE is frequently placed here also. Once again, use of Bold or italics type styles can add readability and emphasis, provided they are used with consistency and discretion.

• The title of the document, which explains what is being appealed, being motioned, or being submitted, etch., is referred to as the PLEADING or NAME or TITLE OF PLEADING.

  Typical pleading phraseology directly names or states the purpose or issue presented in the document.

  Typical examples of pleadings in various types of jurisdictions might include
  

• Discovery Request for Production of Documents
• Interrogatory Discovery Request
• Motion to Compel Discovery
• Petition for (VENUE) Board Review
• Appellant's Submissions
• Appeal to the (VENUE)
• Request for Reconsideration
• Brief for the Grievant

It was fairly simple in the past when using a typewriter to align the caption lines (underline key)and parenthesis characters (right parenthesis) and keep the other elements reasonably straight. Earlier DOS word processors used mono-spaced type, usually courier, as the default typeface, and writing a pleading became even easier. One could still align the type, but now on the screen without erasures, and could use all the editing tools of the word processor --- to backspace, overstrike, and even check the spelling.

With more modern and fancy Windows typefaces, such as Roman and Ariel, things became more difficult. To use a windows true type font, either select courier, prestige, or some other mono-spaced font, or use tab spacing to draw the caption and use overstrike cursor (destruct cursor) to place the names inside. Almost all windows fonts, such as the default Times Roman and the widely-used Ariel, for example, are variably spaced, and rows will not align well unless the caption box is positioned with tab spacing. Then overstrike-cursor typing will position the content. A touch or two on the delete key will bring stray right parentheses back from across the page into perfect alignment again, if any happened to hop over.

The mono-spaced fonts are much simpler to use for captioning and alignment. The space bar positions everything in perfect alignment because every letter, number, or symbol takes exactly the same space. For ease of use, and because its "typewritten" look has a traditional, legal appearance, I strongly recommend a mono-spaced font such as Courier for legal writing.

Certificates of Service

A certificate of service is a declaration on the final page of a submission that (1) identifies all the parties who should be in receipt of a copy of the materials and (2) explains the particular method of service. Not all documents require this formal page, true enough. However, the more legal the forum the more likely or even certain it is that a certificate of service will be expected. By reading the submission requirements as stated in the judge's acknowledgement letter or submission orders to the parties, this type of requirement will be stated in no uncertain terms. Although this process may seem complicated or even intimidating, a certificate of service is a very simple document to draft. Just keep it neat and as brief as possible.

As a simple rule of thumb, if the judge or hearings officer is using certificates of service when writing to the involved parties, consider it a requirement for any document you produce as well. Certificates of service promise that all indicated parties will receive the identical documents, which complies with virtually all Federal appeals procedure regulations. Even where certificates of service are not absolutely required, their use indicates that the document is a serious matter to its originator.

In the example at the right, many details were highly abbreviated in order to produce a typical page layout. The complete title and address of each party served should be detailed. The sender should fully state his or her name, title, address, organization name, phone and FAX numbers. Certificates of service are drawn on plain paper, not letterhead. If unsure of the exact style to use, my advice is: Use precisely the form and style of the judge or hearings officer if you have received something from the jurisdiction office bearing a certificate of service.

If parties are being served in more than one way, the situation can be stated, in this fashion: On this date by ordinary mail (unless otherwise indicated below) the enclosed documents were served on the parties indicated below:

Certificates of service can indicate ordinary mail, personal service, express mail, certified mail, or other conceivable methods of service. One could identify the certified article numbers beside those recipients being served by certified mail or other numbered article. Accuracy is a necessity!

Tabular Files

The assembly of a tabular file is frequently ordered by the administrative law judge on both the appellant and the employeing agency, as a means of organizing the pre-hearing submissions. Even when not specifically ordered, it is a very useful way of organizing the evidence in support of the appeal. The case brief can be labelled Tab 1, and can refer to the supporting evidence by tabular reference, either with footnotes or parentheses, as if a research paper. A case so prepared not only supports itself, but almost argues itself as the brief is read by the advocate and examined by the hearings officer or judge. Important case elements will never be forgotten in the heat of battle.

When assembling a tabular file, it is wise to limit your tabbed items to submissions that are new to the case. For example, if the agency advocate tabs the discipline and Inspection Service investigation memo, and the judge has served appeals process documents on the parties, tabbing such things again in the appeal file contributes nothing new to the case. The appeal file should tab the case brief, new evidence, anticipated testimony if demanded, and any other material requested by the judge or hearings officer. I once had a judge return a tab file to me and demand that I eliminate redundant matter and confine my submissions to new evidence and argument.

Discovery Requests and Interrogatories

Discovery requests and interrogatories are special documents, usually drawn in reasonably formal or very formal style, and served on the agency or some other possible witness by the appellant, or served on the appellant or some witness by the agency. Typically, the judge will not be overly interested in such documents unless someone fails to furnish the requested information. Then the requesting party may choose to file a formal pleading with the judge, titled Motion to Compel Discovery, or words to that effect. The judge may then order compliance or threaten sanctions. Discovery requests are served on the agency representative by the appellant or appellant's representative, or vice versa, which can make the pre-hearing period one of substantial conflict between the actual parties.

Discovery requests seeking hard copy evidence are often titled, Motion for Discovery -- Request for the Production of Documents, or words to that effect. Discovery requests that seek answers to specific questions, or which seek definitions or interpretations, Motion for Discovery -- Interrogatory Request, or words to that effect.

Discovery requests are a necessary exercise where legally when preparing for a hearing. They are the best way to gain factual information from the employer. An aggressive discovery request forces the opponent's representative to work very hard, which may make settlement more attractive than litigation. The discovery period is defined in the judge's orders to the agency and appellant. The appellant's representative should waste no time in giving thoughtful preparation to the discovery of necessary evidence. Waiting until a few days or even weeks before preparation for such a hearing could have disastrous consequences for the appellant's case.

Concluding Remarks

It is hoped that the material presented will assist labor advocates in representing their members in some of the more challenging places that advocacy takes us. There is a strong tendency in Federal procedure for uniformity in time limits and overall procedure. There is a growing trend for using appellate processes to find negotiated settlements for appealed actions, rather than litigation and further appeals. The MSPB and NLRB have both adopted processes involving the use of "settlement judges" where deemed appropriate, and pre-hearing conferences often serve as negotiation sessions with the judge facilitating settlement. These trends are very positive, as large amounts of resources are saved and "win-win" solutions save jobs and retirements that otherwise might be lost. Advocates need to be aware of these possibilities. Good case preparation is just as important in negotiation as it is in litigation.