Civil Procedure – Feb. 4

1. Civil Procedure – Feb. 4 Affirmative Defenses & Rule 20 Practice Problem Review

2. 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 don’t 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 doesn’t have power to hear the case, any decisions it makes will be moot.

3. 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.

4. Testing the limits • A, a jogger, is injured when B’s 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.

5. Affirmative Defenses (Rule 8(c) • what is an affirmative defense? (explain it to your neighbor)

6. 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?

7. Laymen v. Southwestern Bellcb p. 387 • What did plaintiff allege? How did defendant respond? • What’s the issue? • What’s the holding/reasoning?

8. Laymen cont’d • 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

9. 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 it’s an affirmative defense if it’s not in 8c? (see next slides)

10. To see if it’s 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

11. More ways to see if it’s an affirmative defense • C. Does it simply negate an element of plaintiff’s 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 wouldn’t be expecting as a normal part of the defense to what she alleges (if yes, it’s an affirmative defense)

12. Affirmative Defenses in W.R. Grace • Look at each defense in W.R. Grace’s list of defenses in its 4/4/83 answer to p’s 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/index.html

13. 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

14. 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

15. 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

16. 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

17. Affirmative Defense? Procedural Defense? No need to assert • Twelfth Defense • Def’s 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

18. 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

19. 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?

20. 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 client’s facts to the applicable law; • D. Reach a conclusion based upon your application of facts to law so that you can advise your client

21. 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.

22. 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

23. 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.

24. 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

25. What is Metacognition? • The essence of metacognition: • Knowledge about cognition • Regulation of cognition

26. 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

27. Thinking about thinking: self-regulating one’s 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

28. NEXT ASSIGNMENT • Model Answer and Reflective Exercise designed to help you begin to consciously identify what worked/didn’t work and to make a plan for changing what did not work

29. 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 PLAINTIFF’S AND THEN DEFENDANT’S SIDE OF EACH ELEMENT RATHER THAN MAKING THE PLAINTIFF’S ENTIRE ARGUMENT FOR BOTH ELEMENTS AND THEN MAKING THE DEFENDANT’S ARGUMENT?

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