It is commonly understood that Connecticut is mainly a “fact-pleading” state when it comes to the court system.

What does that mean? Well, Norm Pattis, in a 2013 Law Tribune column, described the significance in calling for the state to change the way plaintiffs file their lawsuits.

You recall the distinction, don’t you, between notice pleading and fact pleading? We notice plead in the federal courts. All that is required is a short and plain statement of the plaintiff’s legal theory and such facts as are sufficient to put the defendant on notice of the claim for relief and its basis.

Not so in state court. In state court, we require fact pleading. This invites the sort of gamesmanship among litigators that yields nothing but delay. …

Plead too many facts? Endure the request to revise for pleading repetitive, scandalous and irrelevant facts. Plead lean? Well, of course, a motion to strike, not enough facts to make a claim. Famed litigator Gerry Spence was once sanctioned outing such tactics with frank speech: Let’s just say he accused a lawyer of finger-fornicating a file. Get the point?

But after a recent Connecticut Supreme Court case,  employers (who, after all, defend against claims under this standard) should start to wonder whether this standard is going to be upheld much going forward.
In the section of the case I’ll talk about today, the employer argued that the plaintiff/employee didn’t put it on notice of the statutory basis for a potential sexual harassment claim. Why? Because the complaint didn’t cite the specific statute.
The problem with that theory was that the plaintiff had a section of the complaint entitled “CONNECTICUT FAIR EMPLOYMENT PRACTICES ACT (SEXUAL HARASSMENT).” And in that section, there were allegations that another employee rubbed his body against the plaintiff’s among other claims.
The court said that the mention in the complaint as well as what was discussed in discovery was enough even though the complaint did not specifically allege the specific statutory cite: Conn. Gen. Stat. Sec. 46a-60(a)(8)(c).
Although the plaintiff’s complaint was certainly not a model of clarity, it is clear that the defendant understood that the plaintiff’s allegations regarding [the co-worker]’s conduct were intended to raise a hostile work environment claim pursuant to § 46a-60 (a) (8) (C), because that is the theory that the defendant attempted to discredit on the merits in its motion for summary judgment. The plaintiff confirmed the defendant’s understanding when she contended in her opposition to the defendant’s motion for summary judgment that she had established a genuine issue of material fact as to whether [the co-worker]’s conduct had worsened her “working environment. . . .” Thus, contrary to the Appellate Court’s conclusion that the trial court simply assumed without any basis that the plaintiff had intended to bring a hostile work environment claim, the trial court was merely addressing the issue as it had been framed by the parties. “[A]lthough a plaintiff should plead a statute [on which the plaintiff intends to rely] in a complaint . . . failing to do so will not necessarily bar recovery as long as the [defendant is] sufficiently apprised of the applicable statute during the course of the proceedings.” …  Because the defendant understood the nature of the plaintiff’s sexual harassment claim, we conclude that the Appellate Court improperly upheld the ruling of the trial court on the alternative ground that the plaintiff had not expressly pleaded § 46a-60 (a) (8) (C).”
The Supreme Court’s logic here presents the classic “damned if you do, damned if you don’t” conundrum.  Had the employer not moved for summary judgment on that ground, it would have been precluded from making the argument in the future but having raised the argument, the court says, in essence “See? You understood it after all — why else are you making the argument?”
In any event, the case raises suggests that even poorly drafted complaints are going to get a favorable look by the courts — fact-pleading requirements notwithstanding.  For employers, it means thinking about your strategy for a defense early on and consider whether a “request to revise” is going to be a helpful procedural maneuver at the start of a case.