In the world of legal drafting, few traditions have endured as stubbornly—and as pointlessly—as the practice known as incorporation by reference. If you’ve ever read (or written) a complaint that includes the line:
“Plaintiff hereby repeats and realleges each and every allegation set forth above as if fully set forth herein…”—congratulations, you’ve encountered this vestigial legalism in action.
But is it necessary? Useful? Even logical? According to legal scholar Antonio Gidi, the answer is a resounding no.
What Is Incorporation by Reference?
Incorporation by reference is the practice of repeating earlier allegations in each count of a pleading by referencing them, rather than restating them. Ostensibly, this is done to avoid redundancy. In reality, it creates redundancy.
Imagine a seven-count complaint, each count beginning with the same boilerplate paragraph repeating 45 prior paragraphs—regardless of whether those facts are even relevant to that count. It’s not only inefficient but also risks confusion and clutter.
Where Did This Practice Come From?
This legal tradition traces back to centuries-old English common-law pleading, when legal writing was deeply formalistic and highly segmented. At the time, it made sense: each count was treated like a self-contained legal claim, and courts required that all relevant facts be restated in each one.
But that world is long gone.
Even as procedural rules evolved—first through code pleading in the 1800s, then through the Federal Rules of Civil Procedure in 1938—the ghost of incorporation by reference remained. Judges and lawyers kept doing it simply because… well, everyone else was doing it.
What’s the Problem?
Incorporation by reference is not only unnecessary—it’s counterproductive. It:
- Clutters pleadings with repetitive language.
- Obscures clarity, especially when irrelevant facts are incorporated into a count.
- Encourages bad writing habits, passed down through outdated textbooks and formbooks.
As Gidi points out, modern rules of procedure—especially in federal courts—do not require each count to stand alone. There is no longer a need to repeat facts already stated in the same document.
So Why Do Lawyers Still Do It?
In short: tradition. Incorporation by reference has become a kind of legal superstition. Many pleadings include it as a reflex, often without understanding its origin or necessity. It’s perpetuated by law school instruction, legal writing guides, and pre-filled templates.
Time to Move On
Legal writing has evolved. It’s time pleadings did too. Instead of defaulting to incorporation by reference, lawyers should focus on clarity, relevance, and conciseness. If a fact is needed in multiple counts, state it clearly where it matters—without the ritualistic repetition.
As Gidi puts it, “incorporation by reference is a vestigial feature of litigation procedures—like a legal tail we forgot to cut off.” Maybe now is the time.