Jan. 13, 2017 – University of Houston Law Center Professor Lonny Hoffman recently offered his thoughts on the continuing debate over pleading standards adopted by the U.S. Supreme Court in the 2007 Bell Atlantic Corp v. Twombly and 2009 Ashcroft v. Iqbal cases.
Hoffman's comments were featured in a response essay in the University of Chicago Law School Law Review. Hoffman wrote a dissenting opinion to University of Chicago Law School Professor Willian H.J. Hubbard's article "A Fresh Look at Plausibility Pleading."
"Hubbard's article was provocative and constructs a theory of pleading practice," Hoffman said. "From it, Hubbard makes predictions about the expected impact of the recent advent of plausibility pleading, which the Supreme Court brought about with its decisions in Bell Atlantic Corp. v. Twombly (2007) and Ashcroft v. Iqbal (2009)."
Hubbard began his article by referring to prior research that demonstrated a plaintiff's lawyer has incentive to bring meritorious cases to the court, and to plead them with enough factual detail and convincingness to communicate their merit.
"But from the well-established premise that lawyers have powerful incentive to only bring strong cases, Professor Hubbard reaches the surprising conclusion that plausibility pleading is likely having only a modest effect in practice because most claimants have incentive to plead their claims fully," Hoffman wrote.
In his response essay, "Plausible Theory, Implausible Conclusions," Hoffman notes that a critical difficulty with Hubbard's argument is that while plaintiff lawyers have incentive to bring only deserving cases and then plead them adequately, the court's heightened pleading standard may still prevent them from doing so.
"When the plaintiff's claim depends upon access to crucial information that is privately held by the defendant and not accessible except through discovery, a strict pleading filter will end up wrongly screening out some meritorious cases," Hoffman said.
Hoffman continues by pointing out that the move to plausibility pleading was unnecessary.
"If lawyers already keep most meritless and weak cases from being filed, the court's rationalization for imposing a more rigorous pleading filter cannot be defended," he said. Hubbard, according to Hoffman, fails to adequately consider the risk that SCOTUS' pleading standards will lead to dismissals of meritorious cases.