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Counts refer to the basis for bringing a case, including each cause of action in civil cases or charge in criminal cases. Lawsuits can involve multiple counts in which someone can be held liable. For example, assault and battery are separate causes of action that often are both present in a lawsuit. Moving parties must carefully balance ensuring that enough evidence and only once cause of action or charge is in each count. Otherwise, the count may have to be resolved or dismissed with prejudice. The procedure varies between states and the federal government, particularly regarding when a flawed count can be corrected.

Federal Counts

Counts most commonly refer to offenses contained in criminal indictments. Prosecutors must be very careful that each count does not contain multiple charges, constituting a duplicitous count. If this happens, a court may allow the jury to choose one of the charges in the count, or the court may dismiss the count altogether. A count that remains unclear may breach a defendant’s Sixth Amendment right to know the charges being brought and a unanimous verdict. Defendant’s counsel may lose the ability to object to a duplicitous count if not made before trial. A count may contain multiple sets of facts, however, that satisfy one charge if a statute states numerous ways to commit the act. 

For example, a person who broke into numerous apartments in the same complex to steal TVs would receive a different theft count for each apartment. However, if a person broke into one apartment stealing a TV and a cat, the prosecutor would only bring even one theft count with these facts because each stolen object would satisfy the theft law, not constitute individual thefts. 

Civil Cases

Counts must be formulated properly in civil cases as well. If the count contains duplicitous causes of action or lacks enough facts to bring each claim, the opposing party can bring motions to strike parts of the complaint, for clarity, or potentially to dismiss. A court may allow a party to amend the complaint for duplicity or for alleging more facts. Parties who fail to challenge a count for most grounds of sufficiency will be barred from doing so after completion of the pleading stage. 

[Last updated in April of 2023 by the Wex Definitions Team]