Video 1

Formalism Video 1 (14mins)

Formalism Video 2 (10mins)

Formalism Video 3 (10mins)

Legal Realism Video 1 (15mins)

Legal Realism Video 2 (10mins)

To help you understand civil litigation, let's go over a few basics.

Definitions:
Claim: Under the Federal Rules of Civil Procedure, a “claim” is the group of circumstances for which a court will grant relief (sometimes it is also called a "cause of action").

Element: Each claim is divided into parts, called “elements.”

Prima Facie Case: When the judge asks what a lawyer’s prima facie case is, she may either be asking for the elements of the claim or a short description of the evidence the lawyer has for each of those elements.

Winning in Civil Litigation:
In order to win in civil litigation, a plaintiff has three obligations. The plaintiff must first state a claim for
which they are entitled to relief (and in some cases, state facts underlying the claim). This is sometimes referred to as the "burden of pleading". Second, the plaintiff must meet a "burden of production" by submitting evidence to permit a reasonable person to find each element of the claim. Third, the plaintiff must ultimately meet a "burden of persuasion" by persuading the fact finder that each element is true. The burdens are like successive hurdles in the Olympics with the course of civil litigation being like the race. Once you jump over one you then face the second and then the third.

Sample Claims:
When a claim/cause of action is created by state law, that is where you will find a list of its elements (either by statute or less often by the work of common law judges). When federal law creates the cause of action,nthat is where you will find the elements. Many of your first year classes are about learning what these elements are and how they work. To give you an example, here are a few common civil causes of action you may already have encountered.

Assault: (1) intent to cause harmful or offensive contact; and (2) imminent apprehension of such contact.

Defamation: (1) false and defamatory statement; (2) publication not privileged; (3) fault (in some cases
negligence and in some cases malice); (4) injury; and (5) recipient understood communication refers to
plaintiff.

Negligence: (1) duty; (2) breach; (3) cause-in-fact; (4) proximate cause; and (5) injury.
Trespass: (1) unauthorized entry by defendant; (2) property possessed by plaintiff; and (3) injury (damage).

Under FRCP 12(c), a motion for judgment on the pleadings is a way for a party to challenge the substantive sufficiency of an opposing party’s pleadings.  Under FRCP 12(f), a motion to strike is a way to challenge the substantive sufficiency of defenses in an answer.  For instance, in Biggs v. Pub. Serv. Coordinated Transp., 280 F.2d 311 (3d. Cir. 1960), the court held that the defendant’s general denial of the plaintiff’s jurisdictional allegations could not possibly apply to the allegation that the defendant was a New Jersey corporation, and that the only fair interpretation of the answer is that that allegation must be deemed to be admitted.  A defendant typically can rely on a general denial to say it has denied specific allegations in a plaintiff’s complaint.  Thus, in Ways v. City of Lincoln, 2002 WL 1742664 (D. Neb. 2002), the court found that the defendants had effectively denied certain particular allegations because the defendants had stated in their answer that they “[d]eny that Plaintiff is entitled to any relief at law or in equity as alleged in the Complaint," and that they “[d]eny each and every other allegation contained in Plaintiff’s Amended Complaint except those specifically admitted herein . . . .”  Id. at *23.

Under FRCP 7(a), a plaintiff must reply to an answer that contains counterclaims.  Otherwise, whether to require a reply to an answer is within the discretion of the court. 

Under FRCP 8(b)(6), allegations to which a reply is not required are considered avoided or denied and a plaintiff may controvert them at trial, while allegations to which a reply is required are taken as admitted if not denied in the reply or if a reply is not filed.

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;

• arbitration and award;

• assumption of risk;

• contributory negligence;

• duress;

• estoppel;

• failure of consideration;

• fraud;

• illegality;

• injury by fellow servant;

• laches;

• license;

• payment;

• release;

• res judicata;

• statute of frauds;

• statute of limitations; and

• waiver.

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.

(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

(e) Construing Pleadings. Pleadings must be construed so as to do justice.

Rule 7. Pleadings Allowed; Form of Motions and Other Papers

(a) Time to Serve a Responsive Pleading.

(1) In General. Unless another time is specified by this rule or a federal statute, the time for serving a responsive pleading is as follows:

(A) A defendant must serve an answer:

(i) within 21 days after being served with the summons and complaint; or

(ii) if it has timely waived service under Rule 4(d), within 60 days after the request for a waiver was sent, or within 90 days after it was sent to the defendant outside any judicial district of the United States.

(B) A party must serve an answer to a counterclaim or crossclaim within 21 days after being served with the pleading that states the counterclaim or crossclaim.

(C) A party must serve a reply to an answer within 21 days after being served with an order to reply, unless the order specifies a different time.

(2) United States and Its Agencies, Officers, or Employees Sued in an Official Capacity. The United States, a United States agency, or a United States officer or employee sued only in an official capacity must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the United States attorney.

(3) United States Officers or Employees Sued in an Individual Capacity. A United States officer or employee sued in an individual capacity for an act or omission occurring in connection with duties performed on the United States’ behalf must serve an answer to a complaint, counterclaim, or crossclaim within 60 days after service on the officer or employee or service on the United States attorney, whichever is later.

(4) Effect of a Motion. Unless the court sets a different time, serving a motion under this rule alters these periods as follows:

(A) if the court denies the motion or postpones its disposition until trial, the responsive pleading must be served within 14 days after notice of the court's action; or

(B) if the court grants a motion for a more definite statement, the responsive pleading must be served within 14 days after the more definite statement is served.

(a) Claim for Relief. A pleading that states a claim for relief must contain:

(1) a short and plain statement of the grounds for the court's jurisdiction, unless the court already has jurisdiction and the claim needs no new jurisdictional support;

(2) a short and plain statement of the claim showing that the pleader is entitled to relief; and

(3) a demand for the relief sought, which may include relief in the alternative or different types of relief.

(b) Defenses; Admissions and Denials.

(1) In General. In responding to a pleading, a party must:

(A) state in short and plain terms its defenses to each claim asserted against it; and

(B) admit or deny the allegations asserted against it by an opposing party.

(2) Denials—Responding to the Substance. A denial must fairly respond to the substance of the allegation.

(3) General and Specific Denials. A party that intends in good faith to deny all the allegations of a pleading—including the jurisdictional grounds—may do so by a general denial. A party that does not intend to deny all the allegations must either specifically deny designated allegations or generally deny all except those specifically admitted.

(4) Denying Part of an Allegation. A party that intends in good faith to deny only part of an allegation must admit the part that is true and deny the rest.

(5) Lacking Knowledge or Information. A party that lacks knowledge or information sufficient to form a belief about the truth of an allegation must so state, and the statement has the effect of a denial.

(6) Effect of Failing to Deny. An allegation—other than one relating to the amount of damages—is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, an allegation is considered denied or avoided.

(c) Affirmative Defenses.

(1) In General. In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense, including:

• accord and satisfaction;

• arbitration and award;

• assumption of risk;

• contributory negligence;

• duress;

• estoppel;

• failure of consideration;

• fraud;

• illegality;

• injury by fellow servant;

• laches;

• license;

• payment;

• release;

• res judicata;

• statute of frauds;

• statute of limitations; and

• waiver.

(2) Mistaken Designation. If a party mistakenly designates a defense as a counterclaim, or a counterclaim as a defense, the court must, if justice requires, treat the pleading as though it were correctly designated, and may impose terms for doing so.

(d) Pleading to Be Concise and Direct; Alternative Statements; Inconsistency.

(1) In General. Each allegation must be simple, concise, and direct. No technical form is required.

(2) Alternative Statements of a Claim or Defense. A party may set out 2 or more statements of a claim or defense alternatively or hypothetically, either in a single count or defense or in separate ones. If a party makes alternative statements, the pleading is sufficient if any one of them is sufficient.

(3) Inconsistent Claims or Defenses. A party may state as many separate claims or defenses as it has, regardless of consistency.

(e) Construing Pleadings. Pleadings must be construed so as to do justice.

(a) Computing Time. The following rules apply in computing any time period specified in these rules, in any local rule or court order, or in any statute that does not specify a method of computing time.

(1) Period Stated in Days or a Longer Unit. When the period is stated in days or a longer unit of time:

(A) exclude the day of the event that triggers the period;

(B) count every day, including intermediate Saturdays, Sundays, and legal holidays; and

(C) include the last day of the period, but if the last day is a Saturday, Sunday, or legal holiday, the period continues to run until the end of the next day that is not a Saturday, Sunday, or legal holiday.

(2) Period Stated in Hours. When the period is stated in hours:

(A) begin counting immediately on the occurrence of the event that triggers the period;

(B) count every hour, including hours during intermediate Saturdays, Sundays, and legal holidays; and

(C) if the period would end on a Saturday, Sunday, or legal holiday, the period continues to run until the same time on the next day that is not a Saturday, Sunday, or legal holiday.

(3) Inaccessibility of the Clerk's Office. Unless the court orders otherwise, if the clerk's office is inaccessible:

(A) on the last day for filing under Rule 6(a)(1), then the time for filing is extended to the first accessible day that is not a Saturday, Sunday, or legal holiday; or

(B) during the last hour for filing under Rule 6(a)(2), then the time for filing is extended to the same time on the first accessible day that is not a Saturday, Sunday, or legal holiday.

(4) “Last Day” Defined. Unless a different time is set by a statute, local rule, or court order, the last day ends:

(A) for electronic filing, at midnight in the court's time zone; and

(B) for filing by other means, when the clerk's office is scheduled to close.

(5) “Next Day” Defined. The “next day” is determined by continuing to count forward when the period is measured after an event and backward when measured before an event.

(6) “Legal Holiday” Defined. “Legal holiday” means:

(A) the day set aside by statute for observing New Year's Day, Martin Luther King Jr.'s Birthday, Washington's Birthday, Memorial Day, Independence Day, Labor Day, Columbus Day, Veterans’ Day, Thanksgiving Day, or Christmas Day;

(B) any day declared a holiday by the President or Congress; and

(C) for periods that are measured after an event, any other day declared a holiday by the state where the district court is located.

(b) Extending Time.

(1) In General. When an act may or must be done within a specified time, the court may, for good cause, extend the time:

(A) with or without motion or notice if the court acts, or if a request is made, before the original time or its extension expires; or

(B) on motion made after the time has expired if the party failed to act because of excusable neglect.

(2) Exceptions. A court must not extend the time to act under Rules 50(b) and (d), 52(b), 59(b), (d), and (e), and 60(b).

(c) Motions, Notices of Hearing, and Affidavits.

(1) In General. A written motion and notice of the hearing must be served at least 14 days before the time specified for the hearing, with the following exceptions:

(A) when the motion may be heard ex parte;

(B) when these rules set a different time; or

(C) when a court order—which a party may, for good cause, apply for ex parte—sets a different time.

(2) Supporting Affidavit. Any affidavit supporting a motion must be served with the motion. Except as Rule 59(c) provides otherwise, any opposing affidavit must be served at least 7 days before the hearing, unless the court permits service at another time.

(d) Additional Time After Certain Kinds of Service. When a party may or must act within a specified time after being served and service is made under Rule 5(b)(2)(C) (mail), (D) (leaving with the clerk), or (F) (other means consented to), 3 days are added after the period would otherwise expire under Rule 6(a).

Basics about Answers

When faced with a complaint, defense lawyers have a variety of tools they can use to respond. An answer to a complaint can contain four different types of responses. First, it can contain admissions and denials to the particular points made in the plaintiff’s complaint (see the Catalona answer as an example) Second, it can contain defenses under FRCP 12(b) (e.g., lack of subject matter or personal jurisdiction, improper venue, or failure to state a claim). Third, the answer can contain affirmative defenses under FRCP 8(c). Finally, the answer can contain counterclaims and cross-claims under FRCP 13 that were not mentioned in the complaint (we will discuss both in a later portion of the course). Defense counsel can also choose to add an additional defendant to a counterclaim, or can choose to otherwise add parties. One of the major purposes of the Answer in the FRCP system is to help narrow the issues that will be litigated and allow the court and the other party to understand which controversies are "live" ones.

Admissions and Denials

Under FRCP 8(b), a party is required to admit or deny each averment in the complaint, except when the party “lacks knowledge or information sufficient to form a belief about the truth of an allegation.” The answer may deny specific allegations, whole paragraphs, or the entire complaint. FRCP 11, which we will study shortly, is what keeps defendants honest in their answer. Defendants are often reluctant to admit anything in a complaint—particularly legal conclusions (e.g., Def was negligent)—because doing so causes those conclusions to be binding for the rest of the trial unless the answer is amended.

Defense counsel should be especially cautious in admitting and denying an entire sentence in a complaint when they only mean to deny portions of it. In Zielinski v. Philadelphia Piers, Inc., 139 F. Supp. 408 (D.C. Pa. 1956), the plaintiff alleged that a vehicle “owned, operated, and controlled” by the defendant was negligently caused to come into contact with the plaintiff and to injure him. The defendant denied the entire paragraph of averments, when he easily could have admitted that the accident happened, that the defendant owned the vehicle, and that there was some injury to the plaintiffs. Did the defendant lie when he denied that he “owned, operated, and controlled” the vehicle when he did own the vehicle? It is a close question; perhaps youcould argue that he denied the conjunction of the three verbs. In this case the plaintiff sued the wrong defendant and by the time the plaintiff realized the statute of limitations had already run. To punish the defendant for what it viewed as a surreptitious use of the denial mechanism, the court ruled that the defendant should be treated as though it had admitted operation and control of the vehicle in question. That is pretty harsh medicine, and few courts would go so far to punish a defendant who technically plead the truth. Nonetheless, the case is illustrative of how important choosing when to admit and when to deny can be in the answer. There is also a lesson to be learned for the plaintiff who drafted that complaint, never put an "and" into a single line of the complaint where the denial could be read as denying merely the conjunction. It would have been better to plead in the complaint separate statements about ownership, operation, and control.

Although defense counsel may state that they “lack knowledge or information sufficient to form a belief about the truth of an allegation,” pleading that way should not be done lightly. Some jurisdictions specifically prohibit "evasive denials." See, e.g., Conn. Gen. Stat. Ann. § 10-47 ("where any matter of fact is alleged with diverse circumstances, some of which are untruly stated, it shall not be sufficient to deny it as alleged, but so much as is true and material should be stated or admitted, and the rest only denied."). Also consider Greenbaum v. United States, 360 F. Supp. 784 (E.D. Pa. 1973), in which the Government was the defendant:

An answer of lack of knowledge or information will usually be deemed a denial. A party, however, may be held to the duty to exert reasonable effort to obtain knowledge of a fact. . . . In the present case defendant failed to examine available, highly relevant Government documents which would have given a basis for the belief that plaintiff was not a business invitee and that the Court did not have jurisdiction under the FTCA. A fact which is denied for lack of knowledge or information may be deemed admitted if the matter is one to which the party does have knowledge or information. . . . The government will be held to an admission that plaintiff was a business invitee at the time of the accident. . .

Affirmative Defenses

Defendants may also make affirmative defenses, in which the defendant makes the claim that even if the plaintiff wins on its claims in the complaint, the defendant still wins the case for another reason. Defendants have the burdens of pleading, production, and persuasion as to all elements of affirmative defenses. For the most part, if a defendant fails to raise an affirmative defense in the answer, the defendant has waived it unless an amendment of the answer is allowed. This is particularly so for the list of nineteen affirmative defenses listed in FRCP 8(c). For other affirmative defenses some courts have been less strict, allowing some affirmative defenses that were not plead in the answer absent a showing of prejudice to the plaintiff. See, e.g., Proctor v. Fluor Enterprises, Inc.,494 F.3d 1337, 1351 (11th Cir. 2007) (“The general rule of waiver is more easily applied when a party fails to set forth one of the nineteen defenses specifically listed in Rule 8(c); waiver becomes less clear when a party fails to assert affirmatively some ‘other matter’ that pre-existing federal case law has not clearly construed as ‘constituting an avoidance or affirmative defense’ under Rule8(c).”). Still, when you are practicing you never want to put yourself in the position of having to rely on a court to let you slip in an affirmative defense. If it forbids you from doing so at a later date, your client may sue you for legal malpractice!

(a) Signature. Every pleading, written motion, and other paper must be signed by at least one attorney of record in the attorney's name—or by a party personally if the party is unrepresented. The paper must state the signer's address, e-mail address, and telephone number. Unless a rule or statute specifically states otherwise, a pleading need not be verified or accompanied by an affidavit. The court must strike an unsigned paper unless the omission is promptly corrected after being called to the attorney's or party's attention.

(b) Representations to the Court. By presenting to the court a pleading, written motion, or other paper—whether by signing, filing, submitting, or later advocating it—an attorney or unrepresented party certifies that to the best of the person's knowledge, information, and belief, formed after an inquiry reasonable under the circumstances:

(1) it is not being presented for any improper purpose, such as to harass, cause unnecessary delay, or needlessly increase the cost of litigation;

(2) the claims, defenses, and other legal contentions are warranted by existing law or by a nonfrivolous argument for extending, modifying, or reversing existing law or for establishing new law;

(3) the factual contentions have evidentiary support or, if specifically so identified, will likely have evidentiary support after a reasonable opportunity for further investigation or discovery; and

(4) the denials of factual contentions are warranted on the evidence or, if specifically so identified, are reasonably based on belief or a lack of information.

(c) Sanctions.

(1) In General. If, after notice and a reasonable opportunity to respond, the court determines that Rule 11(b) has been violated, the court may impose an appropriate sanction on any attorney, law firm, or party that violated the rule or is responsible for the violation. Absent exceptional circumstances, a law firm must be held jointly responsible for a violation committed by its partner, associate, or employee.

(2) Motion for Sanctions. A motion for sanctions must be made separately from any other motion and must describe the specific conduct that allegedly violates Rule 11(b). The motion must be served under Rule 5, but it must not be filed or be presented to the court if the challenged paper, claim, defense, contention, or denial is withdrawn or appropriately corrected within 21 days after service or within another time the court sets. If warranted, the court may award to the prevailing party the reasonable expenses, including attorney's fees, incurred for the motion.

(3) On the Court's Initiative. On its own, the court may order an attorney, law firm, or party to show cause why conduct specifically described in the order has not violated Rule 11(b).

(4) Nature of a Sanction. A sanction imposed under this rule must be limited to what suffices to deter repetition of the conduct or comparable conduct by others similarly situated. The sanction may include nonmonetary directives; an order to pay a penalty into court; or, if imposed on motion and warranted for effective deterrence, an order directing payment to the movant of part or all of the reasonable attorney's fees and other expenses directly resulting from the violation.

(5) Limitations on Monetary Sanctions. The court must not impose a monetary sanction:

(A) against a represented party for violating Rule 11(b)(2); or

(B) on its own, unless it issued the show-cause order under Rule 11(c)(3) before voluntary dismissal or settlement of the claims made by or against the party that is, or whose attorneys are, to be sanctioned.

(6) Requirements for an Order. An order imposing a sanction must describe the sanctioned conduct and explain the basis for the sanction.

(d) Inapplicability to Discovery. This rule does not apply to disclosures and discovery requests, responses, objections, and motions under Rules 26 through 37.