"Conclusory Statements": Please Explain
hila...@verizon.net
to "conclusory" [sic] statements. What happens when a plaintiff/
complainant does not believe the statements referred to as conclusory
are, in fact, conclusory, and when (s)he alleges in the complaint
evidence and statutes that (s)he believes are on point?
I have twenty days to resubmit the amended complaint and plan to go
step-by-excruciating-minutiae-step this time, since this appears to be
what the judge wants. It seems that notice pleading is dismissed as
one big conclusory statement.
Are conclusory statements EVER *not* dismissed in initial pleadings?
Thank you.
Mike
> The judge who issued the order in my civil rights complaint referred
> to "conclusory" [sic] statements. What happens when a plaintiff/
> complainant does not believe the statements referred to as conclusory
> are, in fact, conclusory,
When it comes to you disagreeing with the judge, you, generally, lose.
and when (s)he alleges in the complaint
> evidence and statutes that (s)he believes are on point?
>
> I have twenty days to resubmit the amended complaint and plan to go
> step-by-excruciating-minutiae-step this time, since this appears to be
> what the judge wants. It seems that notice pleading is dismissed as
> one big conclusory statement.
>
> Are conclusory statements EVER *not* dismissed in initial pleadings?
I am not a lawyer and didn't even stay in a Holiday Inn last night.
However, this is my take on it.
A pleading should be in the form of:
Who are you suing?
What do you claim they did wrong?
What facts do you say support this claim?
What do you want the court to do about it?
There will be time and place, later, for "conclusions."
A very simple pleading could be something like:
=================================
I, Jane Doe, do bring this lawsuit against John Q. Public.
He did the following:
1: Discriminated against me.
2: Sexually harassed me.
He did this by:
1: Hiring a man to do the same job I do and paying him $10/hr more
than I make. He also told me, specifically, "I am hiring him because
he's a man and you're a woman."
2: On Jan 1st, 2009, he fondled my buttocks and called me lewd names.
I ask the court to require him to pay me back pay from the date he hired
this man. I ask that he be made to pay us equally in the future. I ask
that he pay me $1,000 as punishment for the sexual harassment and not do
it again in the future.
=====================================
You would NOT go into "he hired this man to do this job and that's a
violation of xxx USCA yyyy because men are supposed to be paid the same"
or "Jane heard him calling me lewd names and that shows that he harassed
me", etc. All that can come during the trial phase.
When you see someone brought into court for murder and it's a 3 month
trial, do you think the charges actually fill 4 notebooks? The actual
charge is more like:
"John Doe is accused of killing Jane Doe on 1/1/2009 in their residence
at 123 Main St with a pistol. This is confirmed by witnesses Judy and Jack."
Then Judy and Jack tell the whole story on the stand. The lawyers, then,
would "conclude" with "the facts that John's fingerprints were on the
weapon, Jane's blood was on his shirt and Jane and Jack both saw it
shows that he shot her" during the closing argument phase, NOT the
initial charges.
Bob
>The judge who issued the order in my civil rights complaint referred
>to "conclusory" [sic] statements. What happens when a plaintiff/
>complainant does not believe the statements referred to as conclusory
>are, in fact, conclusory, and when (s)he alleges in the complaint
>evidence and statutes that (s)he believes are on point?
A conclusory* example:
Defendant X violated the Fourth Amendment by using excessive force on
me.
The conclusion is stated with no supporting allegations of fact.
An example of allegations AND supported conclusion:
I noticed Defendant X following behind me on Highway #. He put on his
lights. I stopped at the side of the road. He stopped behind me. He
came to my car. I rolled down the window. He told me to get out of
the car. I got out of the car and stood there waiting. He grabbed my
arms, pulled them behind my back, and placed my upper body on the hood
of my car. He handcuffed me. He then threw me to the ground and
started kicking me in the upper body and head. He then arrested me
and took me to the police station. I was later hospitalized and
treated for the injuries Defendant X inflicted.
Defendant X violated my Fourth Amendment right to be free of excessive
force.
* Conclusory is a word.
http://www.merriam-webster.com/dictionary/conclusory. Not sure why
you added "[sic]" after it.
hila...@verizon.net
> A conclusory* example:
>
> Defendant X violated the Fourth Amendment by using excessive force on
> me.
>
> The conclusion is stated with no supporting allegations of fact.
>
> An example of allegations AND supported conclusion:
>
> I noticed Defendant X following behind me on Highway #. He put on his
> lights. I stopped at the side of the road. He stopped behind me. He
> came to my car. I rolled down the window. He told me to get out of
> the car. I got out of the car and stood there waiting. He grabbed my
> arms, pulled them behind my back, and placed my upper body on the hood
> of my car. He handcuffed me. He then threw me to the ground and
> started kicking me in the upper body and head. He then arrested me
> and took me to the police station. I was later hospitalized and
> treated for the injuries Defendant X inflicted.
>
> Defendant X violated my Fourth Amendment right to be free of excessive
> force.
I'm trying to combine this (and Mike's) example with what Bell v.
Twombly says. Neither your nor Mike's examples seem to really address
the following:
"On such a focused and literal reading of Conley's “no set of facts,”
a wholly conclusory statement of claim would survive a motion to
dismiss whenever the pleadings left open the possibility that a
plaintiff might later establish some “set of [undisclosed] facts” to
support recovery. So here, the Court of Appeals specifically found the
prospect of unearthing direct evidence of conspiracy sufficient to
preclude dismissal, even though the complaint does not set forth a
single fact in a context that suggests an agreement. . . . It seems
fair to say that this approach to pleading would dispense with any
showing of a “ ‘reasonably founded hope’ ” that a plaintiff would be
able to make a case, . . . Mr. Micawber's optimism would be enough.
Seeing this, a good many judges and commentators have balked at taking
the literal terms of the Conley passage as a pleading standard. . . .
We could go on, but there is no need to pile up further citations to
show that Conley's “no set of facts” language has been questioned,
criticized, and explained away long enough. To be fair to the Conley
Court, the passage should be understood in light of the opinion's
preceding summary of the complaint's concrete allegations, which the
Court quite reasonably understood as amply stating a claim for relief.
But the passage so often quoted fails to mention this understanding on
the part of the Court, and after puzzling the profession for 50 years,
this famous observation has earned its retirement. The phrase is best
forgotten as an incomplete, negative gloss on an accepted pleading
standard: once a claim has been stated adequately, it may be supported
by showing any set of facts consistent with the allegations in the
complaint. . . . Conley, then, described the breadth of opportunity to
prove what an adequate complaint claims, not the minimum standard of
adequate pleading to govern a complaint's survival."
**********************************************************************************************************************
This leads a very vast area of litigation that is neither black nor
white (and BTW, people of the United States should not fear the
Judiciary simply because they can't speak in and manipulate the KING'S
English). Your example is specious, too, or else it suggests something
very dangerous: that a potential plaintiff mustn't be merely raped but
raped "real good" (in a figurative or literal sense) in order to have
a day in court.
Because the above snippet does imply that unless the complaint you
bring before the court is SO black-and-white that it can't be
dismissed, you're in danger of the "C" word. How in hell do you avoid
the "C" word if you admit in all candor that, although your case may
be and probably is as black-and-white as ebony-and-ivory to *you,*
you're mature and even-minded enough to know your case isn't black-and-
white to others (which is why you need it to be adjudicated in the
first place)? Is Bell v. Twombly "code" for "don't darken the courts
door again; take heightened pleading standards that we disingenuously
pretend aren't heightened pleading standards as fair warning?"
Then no one, poor bastards or maybe even rich bastards, really has a
chance at a civil rights complaint, because civil rights don't always
involve being gang-raped by sailors in Las Vegas, beaten and tasered
by In the Heat of the Night cops, or other Lifetime Movie
theatricality.
> * Conclusory is a word.http://www.merriam-webster.com/dictionary/conclusory. Not sure why
> you added "[sic]" after it.
"Conclusory" is a word lawyers invented.
Bob
I don't know what your authority for that statement is, but even if
you're right, so what? Words get invented all the time. Lawyers use
lots of words (too many, actually). Why shouldn't they invent some of
'em? :-)
Mike Jacobs
<snipped "Bob's" good example of conclusory vs. non-conclusory
pleading of a police brutality/excessive force civil rights claim>
> I'm trying to combine this (and Mike's) example with what Bell v.
> Twombly says. Neither your nor Mike's examples seem to really address
> the following:
<snipped lengthy quote excerpted from Twombly case>
> This leads a very vast area of litigation that is neither black nor
> white (and BTW, people of the United States should not fear the
> Judiciary simply because they can't speak in and manipulate the KING'S
> English).
You don't get it. It has nothing to do with how articulate and
capable you are at expressing yourself in English. It does have
EVERYTHING to do with how able you are to state BASIC facts (the who,
what, when, where, how stuff) rather than the CONCLUSIONS you are
consciously or unconsciously putting on those facts, no matter how
good or bad your spelling and syntax might be. It's really not hard,
once you get the hang of it. And when you DO get it, something will
probably "click" and you will wonder how you ever missed getting it in
the first place. Also, you are NOT going to make any progress toward
that epiphany if, instead of trying to improve your understanding, you
persist in blaming the system, the judges, the PA housing authorities,
your fellow MLM posters, and everyone else for "not getting it"
either. We don't get it because you haven't TOLD US yet, any BASIC,
underlying facts you can allege that are sufficient to show that you
have any possibility of making out a case at trial proving
intentional, invidious discrimination against you. I'm not saying
you CAN'T do so; but something in how you are looking at your
situation is blocking you from crossing that hurdle. I don't know
how else to put it.
> Your [Bob's] example is specious, too, or else it suggests something
> very dangerous: that a potential plaintiff mustn't be merely raped but
> raped "real good" (in a figurative or literal sense) in order to have
> a day in court.
Now, you really don't get it. Your putdown of Bob's example again
shows that you thing there is some quantitative or qualitative amount
or kind of hurt you have to be able to show, to make out a case.
That's not it; rather, you have to give SPECIFICS, not just
conclusions, even if those specifics show a violation that may be
more, or less, egregious than most people would assume based only on
your conclusion. Let's use Bob's format and apply it to your rape
example:
SAMPLE CONCLUSORY ALLEGATION:
On 3/2/10, Defendant violently raped me.
SAMPLE NON-CONCLUSORY ALLEGATION:
On 3/2/10, I was at home alone when Defendant knocked on my door. He
identified himself as the "gas man" here to inspect my meters, and was
wearing a khaki outfit with badges that appeared genuine. I opened
the door and admitted him into my home. Once he had gained entrance
to my home, Defendant began taking off his pants and told me to lie
down on the floor. When I refused, he knocked me over onto the
carpet, held me down and removed my blouse by pulling on its front,
ripping off its buttons. He then tore my brassiere and left my
breasts exposed, which he then fondled with both hands while he was
sitting astride my midsection to hold me down as I screamed in
protest. He then......
Need I go on? You don't need steamy potboiler adjectives, or any
frills at all, to get the message across as to what is happening.
You DO need to take the reader STEP BY STEP through EXACTLY what
happened to you, unvarnished but complete - "Just the facts, ma'am."
> Because the above snippet does imply that unless the complaint you
> bring before the court is SO black-and-white that it can't be
> dismissed, you're in danger of the "C" word.
Well, yeah. That doesn't mean the Defendant's VIOLATION has to be
clear-cut, black-and-white, but your ALLEGATIONS must be explicitly
stated and in sufficient detail to show the basic facts upon which
your conclusions are based.
> How in hell do you avoid
> the "C" word if you admit in all candor that, although your case may
> be and probably is as black-and-white as ebony-and-ivory to *you,*
> you're mature and even-minded enough to know your case isn't black-and-
> white to others (which is why you need it to be adjudicated in the
> first place)?
The other side will present their version of what the facts you state
mean, in their answer; or they will deny that those facts even
occurred. That's how the differing views are presented to be
adjudicated at trial. But in your complaint, YOU have to give the
reader the facts that support YOUR side of the story. You say your
story is black-and-white to you, but you STILL haven't done that.
Look back to my post responding to your sample amended complaint on a
different thread, where I mention several specific places where you
were stating conclusory allegations rather than specific, basic
facts. Frex, WHAT EXACTLY DID THE LANDLORD SAY OR DO that led you to
the conclusion the REASON he was releasing you from your lease
obligation was because he didn't like people with "invisible"
disabilities, rather than because he was bending over backwards trying
to accomodate what he thought you needed (and had yourself
contemplated asking for) - to be taken away from proximity to a noise
source you found intolerable due to your particular disability but
which was NOT objectively loud and obnoxious enough to constitute a
deprivation of the right of quiet enjoyment to any other person of
normal sensitivities? GIVE US THOSE FACTS or else we are left with
nothing but your CONCLUSION that, in cancelling your lease, he
discriminated against you. And, under Twombly, that is NOT enough.
> Is Bell v. Twombly "code" for "don't darken the courts
> door again; take heightened pleading standards that we disingenuously
> pretend aren't heightened pleading standards as fair warning?"
No. Especially in the area of fraud and conspiracy allegations, AND
civil rights allegations, the (former) _Conley_ standard had been mis-
understood by many lower courts to allow too many complaints to be
filed bearing no more than conclusory allegations of fraud, or
conspiracy, or discrimination, without ANY underlying facts stated to
back up those allegations. The way to avoid that was to require
plaintiffs' complaints to have at least SOME specific facts stated
which tended to show such conclusions may be true, NOT just the
conclusions themselves. If a civil rights plaintiff doesn't have
SOME facts on which he can reasonably conclude his opponent did what
she did for invidious rather than innocent reasons, why is it fair to
allow him to drag her into court to prove her innocence, or for all
practical purposes force her to settle rather than incur the expense
and risk of defending herself? That is where the _Twombly_ holding
was coming from. But it really was only a clarification, not a
substantive change to, the "notice pleading" standard - plaintiff
still, as always, has to give defendant notice of the basic FACTS on
which the complaint is based.
> Then no one, poor bastards or maybe even rich bastards, really has a
> chance at a civil rights complaint, because civil rights don't always
> involve being gang-raped by sailors in Las Vegas, beaten and tasered
> by In the Heat of the Night cops, or other Lifetime Movie
> theatricality.
If anyone is being theatrical in these threads, I'm afraid it's you,
not those responding to you. For pleading purposes, it's not the
degree of egregiousness of the violation that matters. It's whether
you can express any BASIC, UNDERLYING facts that show you have a
chance of proving ANY violation at all, even if your conclusions
characterize the violation in the most horrific terms. Frex:
CONCLUSORY ALLEGATION:
Defendant violated my civil rights.
MORE EGREGIOUS CONCLUSORY ALLEGATION, WITH COLORFUL ADJECTIVES:
Defendant knowingly, out of malice aforethought, in spite and hatred,
for the purpose of causing me pain and anguish, just because he's a
sadistic, cruel and vicious bastard who loves doing that kind of stuff
and deserves to go to the lowest circle in Hell when his time comes,
violated my civil rights.
NON-CONCLUSORY ALLEGATIONS:
Defendant did X. Then he did Y. Then he said Z. Then...
("Just the facts, ma'am")
> > * Conclusory is a word.http://www.merriam-webster.com/dictionary/conclusory. Not sure why
> > you added "[sic]" after it.
>
> "Conclusory" is a word lawyers invented.
Don't think so. Your logic needs a tune-up. Think of it as in a
basic IF-THEN syllogism:
All men are mortal.
Socrates is a man.
Therefore, Socrates is mortal.
The final line of that syllogism is your CONCLUSION. It is a
conclusory statement. You may state it (and believe it) as being a
FACT, but that alone doesn't give us the UNDERLYING facts on which
your conclusion is based; to do that, you need both the major and
minor premises to be stated. Your complaint has to run through as
many of those underlying basic facts as may be necessary to PERMIT -
not mandate, but just logically permit - the reader to draw HIS OWN
conclusions about how to characterize what was done to you, in order
to survive a 12(b)(6) dismissal for failure to state a claim upon
which relief can be granted. IOW, the judge will not allow your case
to go to the next step unless you state sufficient facts make it
reasonable for him to permit a fair jury to draw the conclusion you
want them to draw from those facts, if they so choose. And, it would
NOT be fair for the judge to permit a jury to draw such conclusions if
the basic, underlying facts you have stated (if any) may have a
perfectly innocent explanation and you have provided no facts tending
to show that this reason was a mere pretext for the "real," invidious
reason these things were done to you.
Anyway, it feels like I am not making any progress getting this point
across, so if the above doesn't work to get you to that "AHA" moment,
I'm going to have to try to restrain myself from trying again. Good
luck,
--
This posting is for discussion purposes, not professional advice.
Anything you post on this Newsgroup is public information.
I am not your lawyer, and you are not my client in any specific legal
matter.
For confidential professional advice, consult your own lawyer in a
private communication.
Mike Jacobs
LAW OFFICE OF W. MICHAEL JACOBS
10440 Little Patuxent Pkwy #300
Columbia, MD 21044
(tel) 410-740-5685 (fax) 410-740-4300
hila...@verizon.net
> And, it would NOT be fair for the judge to permit a jury to draw such conclusions if
> the basic, underlying facts you have stated (if any) may have a
> perfectly innocent explanation and you have provided no facts tending
> to show that this reason was a mere pretext for the "real," invidious
> reason these things were done to you.
Well, this finally got through my thick skull (plus yours and Mike's
explanation of "raising above the level of speculation" on the other
thread). What I had written in the theoretical FHA complaint is, in
fact, 99.9% similar to what a real amended FHA complaint would be. I
was stupid not to realize that, there (clearly!) being no PTSD
disabled judges in federal courts, it will be impossible for my
allegations to be construed in any way other than that--to borrow your
words--*a perfectly innocent explanation" explained everything. Oh my
God, is this awful. (And now, I don't give a flying fadoodle if
anybody on misc.legal.moderated thinks I'm melodramatic.)
> Anyway, it feels like I am not making any progress getting this point
> across, ...
Quite the contrary. This response was a bucket of cold water that will
cushion me for the blow. Psychologically disabled people will have to
wait for the next world for justice. Thank God I believe in such a
thing. But still it's so sad. There are millions of people whose word
can't be automatically regarded as suspect without resorting to vice,
depression, and even suicide. (I know; I read forums and groups where
suicides of such brothers and sisters are routinely reported.)
On the other hand, maybe I should feel as "lucky" as the PHRC tells me
I was. Since the absolute worst has happened--being included in that
class from whom no word will never not be vitiated by "a perfectly
innocent explanation" from a "normal" person... Well, then, nothing
worse really can happen.
Case closed.
Daniel R.Reitman
<mjaco...@gmail.com> wrote:
>. . . .
>SAMPLE CONCLUSORY ALLEGATION:
>
>On 3/2/10, Defendant violently raped me.
>
>SAMPLE NON-CONCLUSORY ALLEGATION:
>
>On 3/2/10, I was at home alone when Defendant knocked on my door. He
>identified himself as the "gas man" here to inspect my meters, and was
>wearing a khaki outfit with badges that appeared genuine. I opened
>the door and admitted him into my home. Once he had gained entrance
>to my home, Defendant began taking off his pants and told me to lie
>down on the floor. When I refused, he knocked me over onto the
>carpet, held me down and removed my blouse by pulling on its front,
>ripping off its buttons. He then tore my brassiere and left my
>breasts exposed, which he then fondled with both hands while he was
>sitting astride my midsection to hold me down as I screamed in
>protest. He then......
>. . . .
To make things more confusing, this set of non-conclusory allegations
would probabyl be considered too specific in Oregon and subject to
striking under the "no pleading evidence" rule. Under Oregon's
"ultimate facts" pleading system, the basic concept is that the facts
pleaded should each satisfy an element of the claim or provide
necessary background. I have posted a sample comparison of Oregon
ultimate fact pleading and Washington notice pleading, based on my
experience, elsewhere in this thread.
Daniel Reitman
Stuart A. Bronstein
> hila...@verizon.net wrote:
>>
>>"Conclusory" is a word lawyers invented.
>
> I don't know what your authority for that statement is, but even
> if you're right, so what? Words get invented all the time.
> Lawyers use lots of words (too many, actually). Why shouldn't
> they invent some of 'em? :-)
If the word was invented by lawyers, according to the OED they were
Roman lawyers who spoke Latin.
Stu