What Are Considered “Counts”?
"Counts" refers to each individual charge or claim that is made in a civil lawsuit or criminal indictment. One count generally contains one charge or claim, however, there can be multiple charges or claims made in a single count. The number of counts in a lawsuit or indictment can provide context as to the severity of a crime or allegation.
In criminal cases, "counts" describes the number of crimes alleged to have been committed. If a criminal indictment contains three counts, that means that the person named in the indictment is alleged to have committed three crimes. Each count is usually numbered or otherwise identified within the charging document.
In civil cases, "counts" may refer to the number of claims made within a complaint filed with a district court in Pennsylvania. For instance, a plaintiff may allege in a civil complaint that Boyce is liable for fraud, negligence and conversion. Although there is only one defendant , Boyce is facing three separate (but often related) legal claims. Each claim is usually numbered or otherwise identified within the legal complaint.
Example of Two-Count Indictment "Count 1" may allege that Smith and Jones unlawfully robbed the SunBank on West Street in Philadelphia. "Count 2" may allege that Smith and Jones unlawfully shot and killed an officer at the bank. The robbery and murder thus can be prosecuted together, but are also two distinctly different crimes.
Example of Three-Count Civil Complaint "Count 1" of a lawsuit filed by Thompson against Johnson may allege that Johnson failed to pay a commission owed to Thompson, and is liable for breach of contract. "Count 2" may allege that Johnson falsely induced Thompson to enter into an agreement to share in the profits of the company, and is liable for fraud. "Count 3" may allege that Johnson improperly withheld commission payments, and is thus liable for conversion.
The Role of Counts in Court Cases
Counts bring structure to legal arguments. In both civil and criminal actions, individual counts serve as snapshots of the narrow legal issue outlined in that count. For example, civil actions alleging negligence might have three counts: (1) negligent retention of an employee or agent, (2) negligence per se, and (3) negligent hiring or training. In a criminal prosecution relating to drug trafficking, individual counts might allege: (1) simple distribution of drugs, (2) possession with intent to distribute, and (3) possession of an illegal firearm during and in furtherance of a drug trafficking crime. In a trial setting, the utility of this structure becomes clear. Imagine the confusion that would ensue if each side of the legal action presented their arguments with no paragraph breaks, no structure, and no segmentation of separate legal issues. For example, imagine if the statement of the plaintiff’s negligence claim was presented as follows: Robert Jones worked for XYZ Co., which is the defendant herein, as a janitor for six months. During his employment with XYZ, Robert was not properly trained to use a floor buffer. One day Robert pushed the floor buffer into a corner when his break ended. The buffer was still plugged in and when Robert went to release the buffer handle it flew back unexpectedly and hit his hand causing him to drop the machine. The machine stepped on and cut his foot. Robert then fell backwards onto a shelf, knocking it over. The shelf went tumbling and hit another shelf and knocked it over. Other shelves tipped over and knocked each other over. Dozens of boxes of Teflon coated toaster oven cups tumbled to the ground and went everywhere. One of the boxes broke open spilling cups everywhere. Robert was taken to the hospital for his injuries. If XYZ Co. had better trained Robert he would not have been hurt. And if XYZ Co. had better stored its merchandise he would not have been hurt. Robert Jones sues XYZ Co. Clearly this complaint, or paragraph, lacks the clarity that individual counts bring to a legal matter. Furthermore, the lengthy allegation of the facts could prove to be their own separate issues of fact and law. If there were ten shelves knocked over, the issue of whether the shelf toppled the next shelf could be a complex issue of fact. Thus, paragraph breaks adding structure to an initial pleading is incredibly important. Improperly structure complaints are more difficult to read and assess whether a party has set out a legal claim for which relief can be granted. Similarly, in the trial process, counts help both the judge and jury to understand what specific facts relate to which legal allegations. A courtroom drama with each party presenting multiple witnesses and evidence from different days or weeks of testimony without structure would be chaotic. Judges and juries would constantly be asking counsel to remind them of what witness testimony relates to which elements and what facts came in at what points in the trial. On the other hand, with the structure of counts, judges and juries recognize which witness testimony relates to which parts of each counts elements. In addition, closing arguments utilize counts to remind the judge or jury of which witnesses support which parts of the case. For example, in the above negligence action, the plaintiff’s counsel’s closing argument might be structured as follows: Now, remember Count 1, negligent retention of an employee or agent. The defendant did not use reasonable care in hiring, training, and retaining its employees. [X witness testimony]. Remember Count 2, negligence per se. The defendant acted negligently when it failed to comply with the safety protocols outlined in [X statute]. [X witness testimony]. Remember Count 3, negligent hiring or training. The defendant failed to properly train Robert on how to safely use the buffer. [X witness testimony]. In addition, the defendant allowed Robert to work without the proper training for six months. As you can see, the defendant was negligent in hiring, training and retaining Robert and caused him to be subjected to the injury and damages that he suffered. This approach is an effective closing because the audience is already organized into counts so the attorney teaches the audience which witness(es) should be considered in proving each element of each count. Because a trial involves multiple witnesses and several days of testimony, if not more, this structure keeps the closing focused on providing an overview of each element in the narrow array of issues in the case. Counts help streamline legal arguments and provide structure required to properly address issues by allowing attorneys to categorize each issue. In turn, this categorization assists the judge and jury to understand the issues before them.
Different Types of Counts in Criminal and Civil Cases
For the most part, counts are used almost exclusively in criminal cases. They are not often seen in civil cases except in the context of liability in torts for damages.
Criminal Counts
A count is a single charge in a criminal case. Each count can charge one or more persons with one or more crimes. For example, charges of robbery and murder may be included in the same count where it is alleged that the robbery led to the death of someone during the commission of the robbery.
The prosecution will include several counts in the same charging document (indictment or complaint). In some cases, the defendant may face the same charge of those counts, but the evidence may support different elements of each count. For example, the defendant may rob and kill 5 different persons. All 5 counts may be charged together, but the defendant may be found guilty of only 2 counts of robbery and 1 count of murder.
Each count is an offense in of itself. The defendant has the right to have the jury decide guilt or innocence on each individual count or offense, unless the defendant chooses to waive that right. A verdict of guilty or not guilty on one count has no bearing on another count. In other words, if the jury finds the defendant not guilty of robbery, it does not determine guilt or innocence regarding the murder count. However, a conviction on any count results in a judgment of guilt of that offense only, unless the applicable statute permits or requires bundling of offenses into one sentence.
Civil Counts
Civil counts can be seen mainly in tort lawsuits. A count for a tort offense such as negligence means that the plaintiff is alleging that the defendant has committed that tort and is therefore liable for damages. Counts in a civil action can be used to increase the types of damages sought. For example, if the count were for malpractice, the plaintiff may be seeking to recover lost profits or business income. On the other hand, a count for negligence may simply mean that the plaintiff is seeking damages for personal injury or property damage.
Different counts in a civil lawsuit can be bundled together in the way that they are pled (asserted) in one cause of action. In other words, counts can involve different legal theories or causes of action for the same thing that is being asserted against the defendant. For example, the plaintiff may be asserting claims for fraudulent misrepresentation, breach of contract, and negligence per se for the same act by the defendant.
The Process of Adding or Removing Counts
The process of adding or dropping "counts" generally does not require much debate between lawyers, even though there is always a tremendous amount of attention in the media on sometimes obscure counting issues (as reflected by headlines or articles citing "84 new indictments" or "163 charges filed").
What we are referring to here is that periodically a Client or a Plaintiff or a Plaintiff’s lawyer will ask a Criminal Defense Lawyer or Civil Attorney to "add more charges" or an Employment Attorney to "add some counts" or a Divorce Attorney to "add some counts." A good lawyer will know that this is a miscommunication, and will respond in one of a few ways. A good lawyer might set the record straight and explain that the appropriate terms of art are "counts," "charges" or "allegations."
It’s clearly a Client or Party’s prerogative to request what they believe to be a "count," or a lawyer’s perspective on such a "count," and a lawyer is entitled to decline if such request for opinions on "counts" becomes too frequent, but the reality is that occasionally a Client or Party will want to "add" or "change" counts.
In most cases, a party can add counts at any time during a proceeding, and it is routine. In New Jersey, for example, a plaintiff may amend its complaint once as a matter of course within 90 days, and thereafter with leave of court at any time. Counsel frequently add counts as depositions are conducted and new avenues of count potentially revealed.
Plaintiff’s lawyers and defendants who strategically work together will sometimes agree to "drop" certain types of counts for ease of litigation. In addition, we sometimes will advise Clients or parties as to counts that we believe to be "weak," or "non-viable," and which should be dropped. A Defendant may occasionally insist that certain counts remain in a case, or do so as a matter of principle.
Here, we refer to the process not as "deleting," but rather "dropping," since otherwise there is a unfortunate implication that a particular defendant might wish to "delete" allegations that are "bad" for them. For example, a title insurer may wish to "drop" allegations pertaining to mesh defects, or a manufacturer might wish to "drop" allegations pertaining to a failure of recall. However, the decision making process in the "dropping" and "adding" of charges or counts is something that is dealt with on a case by case basis.
Influential Cases with Multiple Counts
There are various types of legal cases that involve "counts," including criminal charges, which are also referred to as "criminal counts," and civil matters, including fraud, breach of contract, and other violations. A matter can have one or more counts, so for example, someone charged with robbery can be facing two counts if the police and witnesses believe that they committed the crime on two separate occasions.
The more counts that a party is facing, the more complex the case becomes – even in civil matters, a party may be forced to choose which count or counts they will focus on in litigation, instead of defending against all. It may also become far more difficult to reach a resolution for the case. With just one count, however, a party may be able to reach a reasonable agreement that can resolve the matter. That can make it easier for you – and your attorney – to reach a favorable resolution.
Famous legal cases involving multiple counts include:
• The Disappearance of Twila Louise Busby – A "count" can also refer to the weight of a person. In 1974, two sisters, Twila and Frances, disappeared from their home in California, and investigators believed that they were dead after well over a year of searching. But, in 1991, an investigator dug up the remains of the sisters at a vacant property owned by Frances’s husband, Kenneth Jones.
Three counts of murder were brought against David Taylor, Frances’s son. Describing Taylor as "the personification of evil , " Deputy District Attorney Robert Carey tried the case, which took almost a year for the jury to deliberate. Taylor was found guilty of two counts of first-degree murder and one count of second-degree murder, and was sentenced to 70 years to life.
• The D.C. Sniper Case – John Muhammad and Lee Boyd Malvo were convicted in the Washington, D.C. area during a spree of sniping incidents, and were ultimately prosecuted at trial in 2003. The men were charged with multiple counts, including 10 counts of sniper attacks, conspiracy to commit sniper attacks, and numerous counts of firearms charges.
In a plea bargain for his testimony against his co-defendant, Malvo was sentenced to life imprisonment without parole. Muhammad was originally sentenced to death, but was spared due to a circuit court ruling in 2018 that Virginia’s death penalty is unconstitutional, considering that it requires a non-unanimous verdict.
• The Oklahoma City Bombings – Timothy McVeigh and Terry Nichols were both found guilty of multiple federal and state crimes in relation to a bombing in 1995 that destroyed 1/3 of the Alfred P. Murrah Federal Building and killed 168 children, women, and men.
McVeigh was convicted on eight counts of murder and sentenced to death by lethal injection. Nichols was sentenced to life without parole for the eight counts of murder, and 48 counts of involuntary manslaughter, and he was sentenced to death by lethal injection in Oklahoma.
Issues and Problems with Multiple Counts
When the government seeks an indictment on multiple counts, it poses a challenge for the defense. The complexity increases both in the number of charges and the legal analysis that must be done. While it remains the responsibility of the government to prove each count beyond a reasonable doubt, having multiple counts charged is more persuasive of guilt than just one count when they are similar in nature.
A Special Agent does not have to justify countless hours of interviews and subpoenas to various entities if there has been only one count charged. The prosecutor can more easily focus all their attention on one count to prosecute. The prosecution must show a nexus between the statutory offense alleged and the offense charged to have any hope of sustaining the charge.
The danger with multiple counts charged can also affect the jury. Jurors have times when they may get confused as to what evidence goes with which count. They may mix them up and use improper evidence when deciding a count. These issues typically show up in a complex trial.
The more counts charged, the more time needed for jury deliberation. Although most juries understand they need to decide each count independently, they may simply try to resolve all counts in the same manner. While these issues may not result in a mistrial, they can create fatal errors that result in an appeal that goes on for years and bets on how an appellate court will view the errors. Piling on counts can also become mind-boggling for the jurors when they try to draw a rational decision based upon evidence and testimony.
Other issues arise with multiple counts that may not be as evident. For instance, the United States Sentencing Guidelines (USSG) take into consideration multiple counts. If the US Attorney recommends a specific sentence based upon the USSG, they charge multiple counts that go with only one statutory offense charged, then the two different sentences could be enhanced in the final sentence.
There may be a time when a count is solely charged to increase the total amount in loss in a fraud case. Some counts may increase the USSG sentence based upon conduct that is unrelated to the charge. For instance, multiple counts of bankruptcy fraud should be prosecuted separately from wire fraud. However, with a bankruptcy fraud count that aggregates the money wired, the court will look to see why the wires were made, where they went, and why they were made.
The government cannot base a recommendation for an increase in sentence based upon the same conduct used for the bankruptcy fraud charge. In these cases, the government has used two different legal theories to punish the defendant in one case. Experiences in case management to minimize civil consequences can mean the difference in getting a better result for the client.
Multiple counts can also present problems from a strategic standpoint for the defense. The government will sometimes offer a deal if the defendant will plead guilty to one count and not to the others. However, pleading guilty to one count means the defendant loses almost all leverage in the case. It is always perplexing why the government tender a plea that results in a greater sentence.
Both the defense and the government should consider that a lack of jury confusion, a good verdict as to a lesser charge, and the ultimate sentence is more important than the number of charges. Sometimes the government tends to marginalize the damage that may be caused by charging an individual with multiple counts and increasing the amount at issue in the sentencing. The government may think they are getting confidence votes from the jury due to the number of counts. Getting confidence votes based upon multiple counts instead of a jury verdict is not the purpose of the jury system.
Wrap Up: How Multiple Counts Affect a Case
Counts represent more than just a legal technicality in the courtroom; they are a critical component in shaping the course of a legal action. The number of counts, the specific language of each count, how they are filed, and how they are settled all play a part in determining the direction and outcome of a given case. While having multiple counts in pleadings can be strategically beneficial, they must be handled carefully or they can be disallowed by courts when they attempt to do more than what the law allows. When pleadings contain too many counts or excessive counts it is often a mechanism for parties to relitigate issues that have already been determined and solved by courts, and are improper where the same issue/facts are repeated under different counts. Those types of pleadings can lead to substantial waste of judicial and party resources and the court will disallow those types of pleadings. Counts are exceedingly important regardless of the procedural context in which they are filed, whether they are in a complaint, a response to complaint, a pre-judgment motion or a post-judgment motion. They are often pivotal to the outcome of a given motion, or to an entire case , due to the fact that some counts are expressly permissive while others are not. Take for example a situation where three different counts are involved in a case, such as Counts 1, 2 and 3. If either Count 2 or 3 is based upon the facts alleged in Count 1, but Count 2 or 3 is properly dismissed and not considered by the court, then there exists a distinct possibility that Count 1 could be deemed to have been proved as a matter of law because of Count 2 or 3, even though anything that Count 2 or 3 claimed to prove Count 1 is nothing more than surplusage. Therefore, the only count remaining would be Count 1 which proves up as a matter of law, even though Count 1 has not yet been considered by the courts because the facts alleged in Counts 2 and 3 were nothing more than surplused evidence. Without more, this scenario is ripe for reversal, and anything and everything the appellate courts could do is to remand the case back to the trial courts and provide instructions to the courts to determine the validity of Count 1. Most of the time, the fact finders are going to be the jury, not the judges. So the various permutations of these scenarios and the practical implications are legion.