Sample Answer--Section B (Updated and Moved to Top)

Stats: Mean: 28.4; Median: 24; High:40

Sample answer after the break.

Sample Answer-Section A (Updated and Moved to Top)

Stats: Mean: 25; Median: 32; High: 37

Answer after the break. 

Anticipating defenses in the complaint

During the discussion of the "office deal" statute, some suggested that the plaintiff should plead "not office" as an element, just to be safe. But the effects--taking on the burden of persuasion--weigh against that. The better answer there is for plaintiff to plead the cause of action as she understand it, be ready to fight for that position on the eventual dispositive motion, and be ready to change strategy if she is wrong. That actually captures why we allow dismissal without prejudice--it gives parties a chance to correct mistakes or change course if what they initially believed the law to be turns out to be wrong.

But the discussion also raised a slightly different idea--whether plaintiff in the complaint should anticipate and respond to likely defenses. Someone raised the prospect of pleading a response (e.g. tolling) to an anticipated limitations defense to a complaint the plaintiff knows was untimely filed. This case offers another example--the plaintiffs sued several members of Congress over their votes on legislation giving money to Israel, conduct that everyone knows is absolutely protected from civil liability by legislative immunity under the Speech or Debate Clause.

There are two pieces to this: One is the strategic question of how best to litigate your case. The other is the ethical question of whether filing a complaint the plaintiff knows to be subject to a strong defense (unless the plaintiff has a response or is arguing for an extension of the law) violates Rule 11.

There are two schools on this. On the strategic point, pleading the anticipated response probably will not make that much of a difference. Perhaps seeing the tolling facts in the complaint will cause the defendant not to bother filing the motion, realizing his defense will fail. More likely, the defendant already knew what the plaintiff's tolling argument will be, so this is not news to him. The defense's incentive remains the same--file the motion, make the plaintiff respond, and let the court decide. Same with the Israel suit--defendants will move to dismiss on immunity grounds, regardless of what the plaintiff includes in the complaint.

The Rule 11 concern might play differently. By pleading the response to the anticipated defense, perhaps plaintiff signals to the court that they have done their homework and filed a claim well-grounded in law and fact: They acknowledge the claim was filed after the limitations period but show why the claim is nevertheless timely; they acknowledge that legislators ordinarily cannot be sued but show the planned request for an extension of the law. One can see both sides of this point. For example, the silence of the plaintiffs in the Israel suit suggests they had not really considered the issue at all, making this sanctionable.

But note how this flattens out what should be a sharp distinction between claims (raised by plaintiff) and affirmative defenses (raised by defendant). After all, what if the defendant messes up and fails to raise that affirmative defense? Perhaps the plaintiff--as a matter of ethics and strategy--should be able to plead her claim (as the law defines it); put the onus on the defendant to raise his proper defenses; and respond as necessary?

No right answer. Strategic points to think about. 

A word on essays

I am working through the first batch of essays. They are, overall, quite good.

Some additional stylistic points, which I think the sample answers reflect:

    • Avoid "narrating" your answer--"the court does X, now the court does Y." Just do X and Y, explaining why it matters.

    • Avoid talking (or severely limit how much you talk) about the parties or the other side. Rather than "plaintiff argues X, but plaintiff is wrong about X" or "defendant argues Y, here is how I resolve Y," just analyze and explain X or Y. It saves you words (which are sparse) and reads much better.

For Wednesday, February 18

Thursday audio--B; A. Essays ## 2 and 3 posted; due in class next Thursday.

Think about what happens if the defense tries to use 12(c) on an affirmative defense, after the plaintiff has filed a reply to an answer. The court takes the facts in all pleading, if disputed, in light most favorable to the non-movant and then decides whether the non-movant could prevail.

Prep the remainder of Additional Claims. Work through the entirety of Holmes, identifying each claim by each party, whether it can be brought, why and how? Consider the requirements for counterclaims, crossclaims, and third-party claims in terms of relatedness and compulsoriness. Why make some counterclaims compulsory? Why are crossclaims and third-party claims never compulsory?

Essay # 3

Download here.

Due in class next Thursday. 

Essay # 2

Download here.

Due at beginning of class next Thursday. 

For Thursday, February 12

Wednesday audio (only Sec. B recorded--same stuff). Essays ## 2 and 3 drop at 12:30 tomorrow; due in class on Thursday, February 19. No class this Friday.

One quick note: Contrast Winston's approach to the answer--provide a lot of detail, a lot of new facts, and present a counter-narrative--with the far more common approach described in King Vision, where defendants refuse to admit (or even respond to) anything and end up with a document full of nonsense. Neither is consistent with the FRCP, although for different reasons. But only rarely (as with Judge Shadur in King Vision) do judges or plaintiffs bother to do anything about it.

Prep the remainder of Affirmative Defenses. Consider the following additional problem for identifying what is the claim and what is an affirmative defense:

    § 1: Prohibited Conduct: No person shall cause a retirement plan to engage in a transaction if he knows or should know that the transaction constitutes an agreement with a party in interest.

    § 2: Transactions Exempted The prohibitions provided in § 1 shall not apply to a contract or reasonable arrangements for office space.

A sues X under § 1 over a transaction that might be one for office space. What must plaintiff plead in his complaint? 

Move to Additional Claims. Prep everything but Rules 41 and 55 and Jones, prepping Questions 1-7. Start putting together the pieces of the Holmes v. Clear Code puzzle; for tomorrow, identify the label for each claim.

Complaints

The complete chart for the Complaint. Obviously you will fill in the details; this provides the basic framework.

 

 

For Wednesday, February 11 (Revised)

Wednesday audio--B; A. Essay # 1 has been posted--make sure you have the updated version. Due next Wednesday in class. Can someone from Section B please send me a photo of today's board?

We will have a few final words on Twiqbal. Then moved to Responing to a Complaint: Responsive Pleadings. Prep both Failure of Proof Defenses and Affirmative Defenses (Questions 1-3) for Wednesday; I hope to get to the latter toward the end of class. For Thursday, we will finish Affirmative Defenses and begin New Claims.

Essay # 1 (Both Sections) (Corrected)

Download here. (Typo corrected in the caption--please use the updated version).

Due at the beginning of class next Wednesday, February 11.

Writing Reminders in advance of Essay # 1

In advance of Essay # 1 posting (and ## 2 and 3 coming next week), some further reminds about the importance of good, organized writing. I refer you to Good Writing and Talking Procedure and the sample essay and answer, which shows how you should approach, organize, and analyze problems. In addition, this doc reprints two Twitter threads by Joe Regalia on writing tips--the first on Justice Kagan's writing and the second a general, advanced tips.

A few additional points: If you are asked to argue or resolve a motion, your starting point should be your conclusion--grant or deny (or grant in part and deny in part). Your real analysis begins with the motion presented--what the motion seeks, the rule it comes from, what the rule it says, and the standard. That will take you into whatever other rules and analysis governs the answer to the motion. You can see this in the sample answer.

For Wednesday, February 4

Friday audio: Section B, Part I; Section B, Part II. Section A, Part I; Section A, Part II.

Essay # 1 will post on Wednesday. 

Complete The Future of Federal Pleading. With respect to the idea of "obvious alternative explanations," consider what the Court said in NRA v. Vullo:

The NRA sued a NY state official for a First Amendment violation, alleging that the official had threatened to investigate (or drop investigations against) insurance companies if they stopped providing services to the NRA. The official argued that an "obvious alternative explanation" for these actions was pursuing violations of state law and the ordinary give-and-take of negotiation between government and targets of an investigation. At pp. 16-17, the Court said this:

[T]his Court cannot simply credit Vullo’s assertion that “pursuing conceded violations of the law,” Brief for Respondent 29, is an “ ‘obvious alternative explanation’ ” for her actions that defeats the plausibility of any coercive threat raising First Amendment concerns, id., at 37, 40, 42 (quoting Iqbal, 556 U. S., at 682). Of course, discovery in this case might show that the allegations of coercion are false, or that certain actions should be understood differently in light of newly disclosed evidence. At this stage, though, the Court must assume the well-pleaded factual allegations in the complaint are true.