Amendments to TRCP – What Was Missing

I wrote last week that the Tennessee Supreme Court approved certain changes to the Tennessee Rules of Civil Procedure (and other rules of procedure).

What I did not address is the proposed rule change that was not adopted by the Court. That is the proposed change to Rule 8.01, which I argued against in this post. Under this proposal plaintiffs would have been required to state the amount that was sought as damages in the original complaint.

I am glad that the Court did not adopt this proposal. Too many lawyers use the ad damnum as a marketing tool, knowing that a press that does not understand litigation will look only to the amount sued for to determine whether a lawsuit is noteworthy.

More importantly, however, it is very difficult to determine the value of many cases early in litigation. Experienced lawyers know that the value of cases increases and decreases frequently during the discovery phase. Requiring a lawyer to state an ad damnum early will almost certainly result in an inflated ad damnum, which will then be used against the plaintiff later in the case. (If the original ad damnum is too low that will also have to be explained.)

Also, lawyers seem to forget that if they get sued for malpractice arising the ad damnum used in the original complaint will be Exhibit A at the trial of the negligence action. Obviously, that does not mean that you should understate damages out of fear of a professional negligence case. Instead, I believe that if you state an ad damnum it should be one that reflects the upper limits of the range of reasonableness for your case.

Do you need an ad damnum at all? That is the subject of a future post.