If You’re Not Amending, You’re Not Trying

We teach our kids: the only good writing is re-writing. Pleading is the same: the only good pleading is re-pleading.

Before filing, you do your due diligence: gather client information, interview friendly witnesses, research the law, and navigate multiple drafts of the complaint.

Still, you only know half the story. The defendants and less friendly witnesses know the other half.

To craft the complete narrative and identify all potential claims, the best practice is to amend your complaint after learning the full story.

An amended complaint is allowed as of right within six months of the initial pleading or per the scheduling order. Wis. Stat. § 802.09; FRCP 15.

Otherwise, the standard for court approval is mild – freely given when justice requires. As long as time exists to defend new claims, leave is routinely granted.

Amending is an important right. Discovery and motion practice will identify new claims, expose meritless claims, and give grist for fraud-based claims requiring more detailed pleading.

In a recent case, a deposition showed grounds for a Wis. Stat. § 100.18 claim, adding more damages as a potential fee shift.

In another, defendants’ mammoth document drop resulted in a mammoth, fact-specific amended pleading.

A richly detailed amended complaint serves many purposes. For starters, it will help set the Judge’s or mediator’s understanding of the case.

Your awesome pleading will then guide further discovery, summary judgment filings, and the special verdict.

So treat your initial complaint like a good first draft. Let it sit, do your homework, then make an amended pleading sing.