Bills of Particular in Personal Injury Cases
Brien Roche
A Bill of Particulars is, as the name implies, a statement of the particulars of a claim. Sometimes a defendant will file a Motion for a Bill of Particulars. In doing so they are asking that the plaintiff set forth more facts to justify their claim.
In reality what they are trying to do is to pin the plaintiff down as to a particular set of facts so that they cannot then vary from those facts.
Bills Particular Personal Injury-Can Be Dangerous
A Motion for a Bill of Particulars can be dangerous.
Typically the plaintiff, early in the litigation, does not want to be pinned down as to what all of the facts are. Anyone who has been involved in litigation knows that the process is dynamic. Over the course of discovery you acquire new facts. Also you may acquire new theories based upon those facts. In addition you may develop a new theory of the case based upon simply interaction with other counsel.
As such it is in the interest of the plaintiff to keep the facts as fluid as possible. However it is in the interest of the defendant to pin the plaintiff down as quickly as possible so as to solidify the facts.
Important to Defeat Motions for Bills Particular Personal Injury
There are several reasons as to why a Bill of Particulars should not only be opposed but should be defeated:
1. Rule 3:18 says that where there is an allegation of negligence or contributory negligence, then that is sufficient without specifying the particulars. That rule is consistent with the general practice in Virginia of “notice pleading”. Under notice pleading, the defendant is entitled to notice of the true nature of the claim.
2. Under Rule 3:7 dealing with a Bill of Particulars, the court may order such to amplify any pleading that does not provide notice of a claim adequate to permit the adversary a fair opportunity to respond or prepare the case. However if a pleading does not provide fair notice, then it is subject to demurrer. As such there would be no need for a Bill of Particular. Rule 3:7(b) says that a Bill of Particulars that fails to inform the opposing party of the true nature of the claim may be stricken. Therefore the emphasis is on the “true nature of the claim”.
3. A Bill of Particulars is really an anachronism. The rules of discovery allow for full discovery. A Bill of Particulars should not be a substitute for that. Therefore the place for detailed facts being disclosed is in discovery. It is not in the pleading stage.
4. What the defendant is attempting to do in a Bill of Particulars is to make the plaintiff hidebound to that pleading. That is not the purpose of the pleadings. In addition it is contrary to the whole concept of notice pleading.
5. Bills of Particular, by their very nature, are inefficient. Time spent on filing such a motion, responding to the motion, appearing in court and having the matter heard is not time well spent. All of that time could be better utilized in simply exchanging discovery. That exchange of discovery would not involve court intervention. In addition if the plaintiff acquires additional facts, that requires an amendment. An amendment means a motion, potentially an opposition and a court hearing. All of that is an inefficient use of the court’s time and the time of counsel.
6. Allowing a Bill of Particulars is unjust. It is contrary to all of the basic rules that provide for notice pleading with subsequent discovery. As stated in CaterCorp., Inc. v. Catering Concepts, Inc., 246 Va. 22, when the pleading contains sufficient allegations and material facts to inform the defendant of the nature and character of the claim, the pleading should not have to provide further statements giving details or proof in order to withstand a demurrer.
Consult With a Skilled Person Injury Lawyer in the DMV Area
Call, or contact us for a free consult. Also for more info on bills of particular see the Wikipedia pages. Also see the post on this site dealing with contract issues.