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 emailing 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 coparticipants 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 5
The 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?