Wednesday audio--Section A, Section B. Essay # 1 will post at noon Thursday (tomorrow) and due at the beginning of class on Thursday, February 22. Essay # 2 will post at noon on Friday and due at the beginning of class on Friday, February 23.
The next two days will be spent on Affirmative Defenses and New Claims. I am going to give you stuff for both days now and advise you to prep all for tomorrow, although we will not get too far into new claims until Friday. So prep everything except FRCP 41 and 55.
For Affirmative defenses, call the definition we ended class with: "Allegations or statements of new matter, in opposition to a former pleading, which, admitting facts in such former pleading, shows cause why they should not have their ordinary legal effect." What does "they" refer to? What former pleading? What is the ordinary legal effect? Consider:
• What affirmative defenses are available and where do they come from? What affirmative defenses did Winston include? What is wrong with how they were pleaded in Winston?
• What is the difference between a fact being an element of a claim and an element of an affirmative defense? How do you figure out which something is? How does it affect pleading?
• How could a fact be part of a claim or defense and how does it affect pleading in the following? Consider how pleading is affected by whether facts are part of the claim or the defense:
• Debt: 3 facts: 1) Money borrowed; 2) Money due; 3) Money paid or not
• Sexual Battery: 1) Sex; 2) Consent or not
• How did Winston arguably err in his consent defense? See ¶ 49 and the affirmative defenses.
• What is the connection between 12(b)(6) and 8(c)? What are the procedural mechanisms for a defendant ask the court to decide on an affirmative defense? Consider the example of a statute of limitations defense?
