Ever wish you could have a do-over on some of your court pleadings? For instance, has it ever crossed your mind to go to the clerk’s office and ask for the return of a pleading because you need to make one teeny tiny change? Unfortunately, you can’t do that. Once a document is placed in the court clerk’s records, it stays there. That doesn’t mean though that you can’t change the record or have it reflect a new stance. You can update or append litigation documents, including discovery responses, using amendments and supplements.
Amending a Pleading
An amendment is a change to a document already filed. You can amend a complaint, for instance, to make new allegations. You can amend affirmative defenses to add or remove some, or update a counterclaim. Amendments are common in litigation, but like everything else, there’s a rule governing them. Let’s look at it through the scenario below.
Imagine you’re a defendant, and you’ve alleged seven affirmative defenses. You do your discovery and find that answers to interrogatories strongly support an eighth defense. At that point, you’ want to amend your answer and affirmative defenses to reflect the new allegation. In general, when you have a new understanding of a law or realize that you haven’t alleged enough in a pleading, amend.
How to Handle an Amendment
Though courts are fairly liberal about amendments, there are some restrictions. Most jurisdictions require leave of court (permission of the judge) to amend a complaint, answer, counterclaim, or affirmative defenses.Without leave of court, an amended pleading has no legal effect. In most jurisdictions, you can amend your pleading once without leave of court if no other motions or pleadings have been filed. The main steps to amend a pleading are below.
- Review the rules of procedure in your jurisdiction on amendments and follow them.
- Write your amended document as you want it.
- Write a motion for leave to amend. It should be fairly short and provide a reason why you need to amend. In the “wherefore” clause, ask the judge for leave of court to amend.
- You can bypass the judge and avoid writing a motion if you can get the opposing party to agree or “stipulate” to the amendment.
- If you can’t get your opponent to stipulate, attach the amended document behind the motion.
- Attach any other necessary documents, like a verification or affidavit.
- File the motion for leave with attachments at the clerk’s office
- Schedule and notice a hearing on your motion.
Amendments and Relation Back
Let’s say you have a personal injury claim, and you have two years to file it. On the day before the deadline, you file your claim. Two weeks later, you discover you omitted facts to support one of the elements or requirements of your claim. You need to amend the complaint. But isn’t it too late now to redo?
No. Relation back is based on the notion that something done today will be treated as if it were done earlier. So, your amendment will be treated by the court as if it was filed in time. It “relates back” to the filing of the original complaint.
Unlike an amendment, which makes a change to a document already filed, you can supplement the record or evidence by adding something new. For instance, you can supplement an appeal record (the file sent up to the appeals court) with leave of court if additional documents are needed. Discovery requests are also ripe for supplementing. If you’re sent discovery, and you have a deadline, do what you can to respond on time. If you get more information later, supplement discovery.
You’re a plaintiff in a personal injury case, and your opponent has sent you a set of interrogatories. You can’t answer some of the questions right off. Object to questions you don’t have ready answers for and supplement answers when you find them.
How to Supplement a Document
- Review the rules of procedure in your jurisdiction on supplementing the record or supplementing discovery and follow them.
- Gather your documents.
- Write your supplemental document.
- Write a motion for leave to supplement the record. If no leave is required, write a notice of supplementing the record. Both should be short.
- The motion should provide a reason why you need to supplement the record. In the “wherefore” clause, ask the judge for leave of court to supplement the record.
- Attach any necessary documents to the motion or notice.
- File the motion for leave with attachments.
- Schedule and notice a hearing on your motion.
Though you can’t go through a clerk’s files and pull documents to edit them, you can correct the record by using amendments and supplements. They essentially let you make a mistake and correct it later without harming your case. So, never feel as if you’re stuck with something you wrote. If it’s inaccurate, add something that corrects it.