Civil Litigation I

Unit 4

Client Correspondence

• Avoid conversational tone– Don’t start sentences with “Mr. King, …”

• Convey urgency

• Include specific questions

• Ask for more than release forms

Early Communications

• Why should you be strategic with early communications to a client?

Letters v. E-mail

• When should you use formal letters?

• When should you use e-mail?

E-Mail Precautions

• What precautions should you take when e-mailing a client?

Unit 3: Complaint

• Case caption– IN THE UNITED STATES DISTRICT

COURT… = Federal Court– IN THE CIRCUIT COURT OF JACKSON

COUNTY, MISSOURI, AT INDEPENDENCE = State Court

Unit 4: Affirmative Defense Research

• An affirmative defense is a defense that defeats or diminishes the plaintiff's claim or cause of action, even if plaintiff proves all elements of the claim.

Action Item 4

• Your supervising attorney has asked you to do some preliminary research to determine what legal, affirmative defenses your client may have in this case.

• Locate a case or statute in LexisNexis that sets out the elements of at least one of the affirmative defenses you think your client may have, give a brief summary of the defense and the proper Legal Bluebook citation.

Questions?

Affirmative defenses

• Issues raised by defendant to escape or reduce liability

• D has burden of proof

• Many, including, inter alia– statute of limitations– immunities (governmental, family, etc.)– conduct of P (c-fault, assumption of risk)

1. Plaintiff’s Fault

• Originally: Contributory Negligence– bars recovery by negligent P

• Currently: Comparative Fault– divide fault between P and D– careless plaintiff can often recover a %– virtually universal now

“Reasonable Care” by Plaintiff

• Negligence= taking unreasonable risks with own safety

2. Assumption of the Risk

• Consent to risks created or tolerated by D.– ex: friends decide to play hockey on host’s

pond after host warns them that the surface is much rougher than in a rink.

• One of them catches a blade and breaks ankle.

• Traditionally, suit against host/owner was barred if state had AR defense.

Express and Implied

• express waiver – often not even described as assumption of

risk• ski rental form contains agreement not to sue

• implied assumption of risk – implied by conduct

• P decides to play hockey on host’s bumpy pond.

– Why isn’t this an “express” waiver?

Implied: Primary v. Secondary • Primary: what is it?

– ex: baseball field has some seats without a screen

– D not negligent to leave some risks • in effect, customers must “assume” those risks

– ex: running an ice rink = risk of spills, but not negligent to offer this.

• Jury could reasonably find no duty to have railings on inside (like racetrack). More fun if open.

– Not really an affirmative defense at all

Secondary Assumption of the Risk

• What is it?– Assumption of the risk implied by the P’s

conduct• Traditional effect?

– Barred P’s recovery even if D was negligent.

• Elements?– Plaintiff voluntarily and knowingly– proceeds to encounter a known risk in a way

that manifests acceptance of the risk

Relationship to C-Neg.

• Example: ride mechanical bull after several beers; “turn that thing up!”

• In states with A.R. defense, 2 possible defenses:– contributory negligence?– assumption of the risk?

• In states without a separate AR defense:– contributory negligence?

Assumption of the Risk: Sports

• Participants and spectators assume the risks “INHERENT” in the sport.– Ex: Pro hockey goalie hit after the whistle by

Tony Twist (even though intentional!)

• Fans: – Baseball fans hit by carelessly thrown bats,

helmets and bat weights.

• Participants:– Missouri: mere negligence by co-participants

is inherent and waived.

EXPRESS WAIVERS/RELEASES

• Courts dislike but sometimes enforce• Construe against drafter; language must be

– unambiguous– conspicuous

• Sometime bar for “public policy” reasons– ex: forms signed at hospital admission

• duress of circumstances• boilerplate language (contract of adhesion)• unequal bargaining power

Express waivers - 2

• In Missouri,– must say “negligence” and even that may not

be conspicuous and unambiguous enough– can’t waive reckless or intentional acts– minors can’t waive rights

Other Affirmative Defenses

• Statute of Limitations

• Improper Service

• Consent

• Duress

• Prior Material Breach of Contract (P breached first.)

Examples

• P attends a baseball game. He loves baseball and attends every game.

• P is hit in the head with a baseball.

Examples

• P suffered $50,000 worth of injuries.

• The jury finds that D was 80% at fault and P was 20% at fault.

• P recovers 80% of damages.

Examples

• After filing the action with the court, P learned that D is vacationing in a cabin in the Rocky Mountains.

• P obtains a copy of the summons and complaint and leaves them on the front door mat.

Examples

• Judy’s father dies after a long stay in the hospital.

• Ten years later, she files a lawsuit for malpractice against the hospital and the doctor.

Preview: Action Item 5The Answer

• You are to draft an answer on behalf of the defendant who was sued by plaintiff, Justin King, in your Unit 3 complaint.

• Similar to the complaint, certain parts of the answer typically contain standard or boilerplate language.  Here are the standard sections of an answer:

Case Caption

• Case caption - also called the style of the case, the caption identifies the court, the parties, and the case number.  In some jurisdictions, the judge's name may also be included.

Title

• Title of the Pleading - for example, the answer might be titled Defendant's Answer to Plaintiff's Complaint.

Introduction

• Short Introduction - usually reads, "Comes now, the Defendant, by and through his attorney, and alleges:"

Answer to Allegations

• Answer to Plaintiff's Allegations - The defendant must admit or deny each separately numbered paragraph in the plaintiff's complaint.  Alternatively, in some instances, the defendant may state he is unable to admit or deny plaintiff's allegations due to insufficient information. 

• Some states may permit a general denial of the answer. 

Affirmative Defenses

• Affirmative Defenses - In the answer, you will include affirmative defenses that may defeat or diminish the plaintiff's claims. Typically, these come after the answer to the allegations.

Prayer for Relief

• Prayer for Relief - the general prayer asks for the relief requested in the answer, along with any and other such relief to which the defendant may be entitled, or similar language.

Date and Signature

• Date and Attorney Information and Signature.

Questions re: Justin King

• In a lawsuit against the beer truck driver, which affirmative defense is the strongest? Why?

Questions re: Justin King

• In a lawsuit against MCI Records for breach of contract, which affirmative defense is the strongest? Why?