September 7, 2012

Given the advantages of joinder, and the res judicata risk of not asserting all possible claims, what would be the reason to refrain from stacking multiple claims together against your adversary in a lawsuit?  Let’s consider three primary potential disadvantages that come immediately to mind.  First, surrounding one good claim with many weaker claims does not enhance the quality of the lawsuit or create any leverage for settlement.  In fact, it has the opposite effect.  If your client’s circumstance gives rise to only one relatively strong claim, then focus on that claim and do not bother with other weaker claims.  There are three primary audiences for your assertion of claims–opposing party and counsel, the judge and (someday) the jury.  Each audience will be unimpressed by your lawsuit if you disguise your one meritorious claim with claims of questionable value.  Your opposition will be less inclined to pay you top dollar to settle, the judge may be more inclined to dismiss the entire lawsuit if there are too many unsound claims attached, and a jury might just conclude at trial that your efforts to stretch signify a frivolous lawsuit.

Second, the more claims you assert the easier it is to lose focus and begin diverting your attention to the non-essential claims.  If you are working on a contingency fee you can end up spending too much time and resources thinking about and pursuing claims that may not really add any value to the litigation.

Third, just as asserting more claims increases the cost of defense for the defendant, this practice can easily increase the cost for the plaintiff or plaintiff’s counsel (depending upon the nature of the fee arrangement).  It may not cost much to dictate an additional count when drafting your complaint, but each new count may cause you to respond to a motion for summary judgment or other motion attacking the claim’s merit, it will almost certainly increase the scope of discovery and may make formal discovery tools more expensive in their application.  A plaintiff’s deposition, for example, in a case with one count tends to be shorter than a plaintiff’s deposition in a case asserting six counts.

Since there are both advantages and disadvantages to stacking multiple claims together, one approach will never fit all circumstances – there is no one right approach.  You should consider all of these factors when deciding in the context of your specific case which approach is better for your client and worse for the opposing party.  Finally, due to the fact that complaints can be amended, you are not stuck with the original conclusion all the way through to trial, since a method exists to add or delete claims after the original case filing.

The only other rules of great general significance concerning the joinder of claims are those that govern the filing of counterclaims, cross-claims and third-party claims.  That, however, is a subject for a different blog post.