Civil Procedure – Feb. 4

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Civil Procedure Feb. 4

• Affirmative Defenses Rule 20 Practice Problem
  Review

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Rule 12 defenses

• Then available Rule 12 procedural defenses
  (12(b)(2) (5), 12(e)) must be consolidated
  either in a pre-answer motion or in the answer if
  no pre-answer motion is made. Failure to raise
  these in pre-answer motion or answer results in
  waiver. Policy these are really technical
  procedural motions and we dont want the trial
  delayed by repeated procedural motions. The
  goal trial on the merits.
• 12b6 12b7 go more to substantive issues and
  thus there is more leeway in terms of pleading
  those.
• 12b1 lack of smj - may be raised at any time
  b/c if the court doesnt have power to hear the
  case, any decisions it makes will be moot.

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Review Answering the complaint

• For each allegation in complaint, must either
  admit, deny, or deny b/c of lack of information
  or knowledge if part of the allegation is true,
  must admit the part that is true and deny the
  rest failure to deny means the allegation is
  deemed admitted.

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Testing the limits

• A, a jogger, is injured when Bs car swerves off
  the road and hits A. A sues B. How should B
  respond to the following allegations
• A. The complaint alleges that B has not had his
  car serviced for the past two years. Although
  this is true, B knows it will be impossible for A
  to prove it.
• B. The complaint alleges A was running north. B
  does not doubt that this is true, but did not
  actually see A running.
• C. The same as in (b) except that X , a friend
  of A, has told B that he was standing 20 feet
  away and saw A running north.

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Affirmative Defenses (Rule 8(c)

• what is an affirmative defense? (explain it to
  your neighbor)

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Affirmative defenses

• What does Rule 8 (c ) require if you have an
  affirmative defense? Why?
• If you allege an affirmative defense, can you
  decide later not to pursue it?

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Laymen v. Southwestern Bellcb p. 387

• What did plaintiff allege? How did defendant
  respond?
• Whats the issue?
• Whats the holding/reasoning?

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Laymen contd

• Would the court have reached a different result
  if the defendant had said in response to an
  interrogatory that it was defending on the ground
  of an easement

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How do you know if something is an affirmative
defense

• Easy case List in R. 8c
• Is 8c an exhaustive list? How do you know if
  its an affirmative defense if its not in 8c?
  (see next slides)

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To see if its an affirmative defense

• A. Analogize
• Hypo In a products liability claim the
  defendant wants to assert product misuse and that
  plaintiff ignored the product warning. Are these
  analogous to any defenses listed in 8c? Should
  they be pled as affirmative defenses?
• B. Look at applicable statutory law and see who
  has the burden of pleading/proving it

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More ways to see if its an affirmative defense

• C. Does it simply negate an element of
  plaintiffs claim (not an affirmative defense) OR
  does it proceed on the theory that even if
  everything plaintiff says is true I win (is an
  affirmative defense ) Cf. no causation v.
  contributory negligence
• D. Does it introduce new evidence plaintiff
  wouldnt be expecting as a normal part of the
  defense to what she alleges (if yes, its an
  affirmative defense)

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Affirmative Defenses in W.R. Grace

• Look at each defense in W.R. Graces list of
  defenses in its 4/4/83 answer to ps 2nd amended
  complaint and identify either the procedural rule
  it is based upon and/or whether it is an
  affirmative defense or whether it is simply a
  defense one would expect and thus need not be
  asserted. The full text of the answer can be
  found at
• www.law.fsu.edu/library/courserescoures/beatrice/i
  ndex.html

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Affirmative Defense? Procedural Defense? No need
to assert?

• Second Defense
• The plaintiffs Complaint fails to state any
  claim or cause of action upon which relief can be
  granted.
• Third Defense
• Def Cryovac Division of WR Grace Co lacks
  capacity to be sued
• Fourth Defense
• Defendant at all times exercised due care under
  the circumstances and acted in good faith in
  accordance with reasonable and customary
  standards in the industry and in the locality

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Affirmative Defense? Procedural Defense? No need
to assert

• Fifth Defense
• Any contamination of the groundwater referred to
  in the Complain is the result, in whole or in
  part, of actions of others for whose conduct
  defendant is not responsible or liable.
  Accordingly, plaintiffs claims are barred or
  any damages which may have been sustained by
  plaintiffs must be apportioned according to the
  relative contributions of all such persons.
• Sixth Defense
• The plaintiffs claims are barred by the
  applicable statutes of limitations and/or laches

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Affirmative Defense? Procedural Defense? No need
to assert

• Seventh Defense
• Plaintiffs have failed to join parties known to
  plaintiffs that are indispensable to the just
  adjudication of this litigation.
• Eighth Defense
• Plaintiffs claims are preempted, in whole or in
  part, by applicable federal and state statutes in
  the field of water and air pollution and solid
  and hazardous waste management

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Affirmative Defense? Procedural Defense? No need
to assert

• Ninth Defense
• Plaintiffs claims are barred, in whole or in
  part, because their own negligence exceeded any
  negligence of defendants.
• Tenth Defense
• Plaintiffs claims are barred, in whole or in part
  by the doctrine of estoppel
• Eleventh Defense
• Plaintiffs claims are barred, in whole or in
  part, by the doctrine of assumption of risk

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Affirmative Defense? Procedural Defense? No need
to assert

• Twelfth Defense
• Defs acts or omissions, if any, were neither the
  cause in fact nor the legal cause of any alleged
  introduction of materials into the environment.
  Instead, the intervening acts of other third
  parties over whom def exercised no control were
  the efficient and superseding cause of the harm,
  if any, asserted in plaintiffs complaint.
• Thirteenth Defense
• At all relevant times defendant acted reasonably
  and in good faith with due care for the rights
  and safety of others

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Affirmative Defense? Procedural Defense? No need
to assert

• Fourteenth Defense
• Plaintiffs claims are barred by the doctrine of
  laches
• Fifteenth Defense
• Plaintiffs are barred from recovery, in whole or
  in part, or their clams are reduced for their
  failure to mitigate their alleged damages, if any
• Sixteenth Defense
• Def is not responsible for any alleged adverse or
  potentially adverse impact on the environment or
  human health as a result of technical, medical or
  environmental considerations not known or
  foreseeable at the time any of the activities or
  omissions alleged in the Complaint occurred

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Comparing styles

• Compare answer of Grace (4/4/83) to answer of
  Beatrice (4/15/83) in 2nd amended complaint.
  Which do you think is the better approach and why?

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Essay Exam ?s

• A good essay exam question mirrors the skills you
  use in practice because it requires you to
• A. Identify the relevant issues
• B. Identify the applicable law
• C. Apply your clients facts to the applicable
  law
• D. Reach a conclusion based upon your
  application of facts to law so that you can
  advise your client

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Exam Review

• Important to review your first semester exams to
  see if you consistently are making the same kind
  of errors. If times listed conflict with class
  times, email prof to schedule different time.

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Common Exam Errors

• 1. Failure to analyze all the elements of a
  particular rule
• 2. Failure to argue both sides of each element
• 3. Using conclusory statements

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Which of these is a conclusory statement?

• The plaintiffs claims arise out of the same
  transaction or series of transactions or
  occurrences.
• The plaintiffs claims arise out of the same
  transaction or series of transactions because the
  claims are logically related to each other.

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REFLECTIVE EXERCISE

• Adult learners learn best when they figure out
  what they did right/wrong and when they determine
  how to do it differently next time. (Some people
  intuitively know this for others, it involves a
  conscious exercise)
• Metacognitive skills training learning to be
  reflective about learning is a key to improving
  performance

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What is Metacognition?

• The essence of metacognition
• Knowledge about cognition
• Regulation of cognition

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Thinking about thinking knowledge of self as
learner

• What are my strengths/weaknesses
• How do I learn best (reading discussing
  listening doing)
• Given my learning style, how should I
  approach the material

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Thinking about thinking self-regulating ones
learning

• What process did I use to attack this problem
• What worked and did not work
• Why did it work/not work
• What will I do differently next time

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NEXT ASSIGNMENT

• Model Answer and Reflective Exercise designed to
  help you begin to consciously identify what
  worked/didnt work and to make a plan for
  changing what did not work

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Baseline questions

• HOW DO YOU DETERMINE THE ISSUES YOU NEEDED TO
  DISCUSS (What are the key clues)?
• WHY DO YOU LAY OUT THE RULE AND IT SUBPARTS AT
  THE START OF YOUR ANSWER?
• WHAT ARE THE ADVANTAGES OF ARGUING PLAINTIFFS
  AND THEN DEFENDANTS SIDE OF EACH ELEMENT RATHER
  THAN MAKING THE PLAINTIFFS ENTIRE ARGUMENT FOR
  BOTH ELEMENTS AND THEN MAKING THE DEFENDANTS
  ARGUMENT?

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Your questions

• Ask now or via email (maybe better to wait until
  you have done the reflective exercise)