January 21st Notes

Litigation Basics
January 21, 2010

Bring your Local Rules Book next week!

Answers
-must line up with the complaint, paragraph by paragraph

Types of Answers
1. General Denial
-WA does not allow this,must address each paragraph individually
-can not deny things you know are true
-all of the allegations are denied
-denying all facts
-denying subject matter jurisdiction, personal jurisdiction, and venue

2. Specific Denial
-specific replies to each of the contentions alleged
-admitting or denying on information and belief (must make good faith effort to find out)
-if not specifically denied it is deemed admitted

3. Qualified Denial
-combination of specific and general responses
-admits and denies allegations
-generally denies everything else

Affirmative Defense
-(great handout on it)
-fact or circumstance that defeats the plaintiff's claim, even if the plaintiff can prove every contention
-allege in the answer or they are deemed waived
-WA CR 8(c)

Types of Affirmative Defenses (always add these)
1. Complaint fails to state cause of action
    -failing to join party
2. Fault of other party
    -find another person to blame, name or unnamed
3. Fault of the plaintiff
    -plaintiff's negligence
4. Plaintiff failed to litigate damages
    -blame them for not taking steps to minimize harm

-Bankruptcy, why is that an affirmative defenses?
    -Automatic stay, protected from creditors

Exception to the Hearsay Rule
-sufficient trustworthiness
1. 803(8) Public Record
2. 902(d) Certified copy of Public Record
3. Judicial Notice 201(b)(2)

Drafting the Answer
-always make copies (many are written on)
    -make notes on each paragraph on how to respond
-Caption identical to complaint
-Remember general denial is not allowed in WA

Specific Denial
1. Defendant denies all the allegations or statements in a specifically named paragraph in the complaint.
2. Defendant denies having sufficient knowledge or belief to respond to the allegations or statements in a specifically named paragraph or paragraphs in the complaint.
3. Defendants admits all the allegations and statements in a specifically named paragraph or paragraphs in the complaint.
4. Defendants admits all the allegations and statements in a specifically named paragraph but deny other allegations in the same paragraph.

-Admit the things you want to and then deny the remainder. 
-Do not highlight what you are denying, if you miss one it is admitted

Ways to Answer    page 172-173
-Denial of all allegations of one or more paragraphs
    -Disadvantage:  you may skip one accidentally 

-Denial on information and belief
    -likes to add "on that basis, it is denied"
    -Likes 3.  "Defendant denies having sufficient knowledge of information to form a belief as to the allegations contained in Paragraph 4 of the complaint, and thereupon denies said allegations."

-Admission allegation
   
-Admission in part; denial in part
    -tell them what you are admitting and then denial all other allegations, do not miss one

-Qualified denial

-Incorporating by reference
    -do not have to repeat admits and denials
    -use this statement to say this in other causes of action
   
-Multicount Answer
    -make sure that the numbers line up to not miss one

-always put in affirmative defenses   page 174
    -one set at the end works well
    -answer complaints then add affirmative defenses

Example  page 174
-prefers to lay out each paragraph
Answer to 1
1. Admit
2. Admit
3. Admit
4. Deny
5. Deny    
6. Deny
7. Deny
Answer to 2
8. Incorporate by Reference
9. Admits this but Denies that
10. Deny
Affirmative Defense
Prayer
Signature

-Likes paragraph numbers to match from Complaint to Answer

-Prayer and Signature
    -plaintiff allowed no recovery
    -with prejudice
    -attorney fees and costs
    -any relief the court deems just
   
-serve plaintiff or plaintiff's attorney and file with court
    -can be mailed since they already know of lawsuit

WA CR13 controls all these:
Counterclaim
-claim made by defendant to sue plaintiff
-same transaction

Cross-Claim
-must be served
-claim brought by one defendant against another that is based on the same subject matter as the plaintiff's lawsuit

Third-Party Complaint
-complaint brought by defendant in a lawsuit against someone not in suit

Compulsory Counterclaim
-claim by defendant based on same transaction
-need not satisfy a separate jurisdictional basis to be heard
-claim may be lost if not included in answer

Permissive Counterclaim
-claim by defendant based on different facts from those alleged in complaints
-claim must satisfy a separate jurisdictional basis to be heard
-claim can be raised in separate action

Contribution
-right of the person who paid an entire debt to get back a fair share of the payment from another person who is also responsible for debt

Counterclaim Contribution
-very common for cross-defendant answers
    -dismissed if not responsible
-if I am held responsible, another pays for it
-I just want declaration I did not wrong
    - don't want anything later as long as I win lawsuit
    -if I do not win, you will pay on my behalf
    -does not just want money which is just counterclaim
-can be brought later rather than a direct counterclaim
        -Why?
    -the right to contribution does not arise with the action but with the finding at the end of the trial

Compare page 163 and 179
-accident date is wrong

-Counterclaim must be able to stand alone
    -it is a complaint
    -what happens if the other complaint is stricken? 
   
Cross-Claim
-one defendant against another
-include indemnification
-affirmative relief and indemnification

Indemnification
-if held responsible you should pay all of it
-allowing a defendant who has paid a judgment to seek reimbursement from another defendant
1. if it says to in contracts (clauses for work done, contractor)
2. law requires it (employee does in scope of duty, bought supplies asked for)

Third party Complaints
-someone not named in original complaint
-separate pleading resembling complaint
-Federal CR right to file within 10 days of filing the answer
    -WA CR 14(a)

Reply
-response to counterclaim
-all others are Answers

Court Rule 12(b)
Defenses and Objections
-done within 20 days
1. subject matter jurisdiction NOT waivable
2. personal jurisdiction waivable
3. venue waivable
4. insufficiency process waivable
5. service of process waivable
6. failure to state a claim NOT waivable
7. failure to join indispensable party NOT waivable

2, 3, 4, 5 are waivable if not objected

demurrer
-not in WA (motion for more definite statement)
-require a certain defense be raised in a special pleading
-CR 12(e)
-however, it makes better pleadings
-challenges legal sufficiency of the complaint
-can be dismissed or amended

Motion to dismiss
-request of court to dismiss or strike the case
-immediately terminate action without granting the plaintiff any of the relief

Motion for more definite statement
-a request that the judge require an opponent in a lawsuit to file a less vague or less ambiguous pleading

Motion to strike
-CR 12(f)
-calling party a rude name in pleadings

Failure to Answer
-judgment by default
-judges do not like default judgments

In WA how long to answer a complaint?
-20 days but it says the plaintiff can not take a default against you for 20 days
    -if they have not gone for default you can still file answer
    -if they have filed default you must make a motion

Why you need to file notice of appearance: WA CR55
1. no longer sneak into court with default without notice
--if no notice of appearance when complaint comes in and forgets to do answer, they can get motion for default without having to notice you
2. if they motion default, you can still file answer before the motion is heard
--if you file notice of appearance, they have 5 day notice to tell you about default

Prove-up Hearing
-mini pseudo trial to hear about damages/case
-liability is contingent (just alleged what happened)
-no liquidated (amount of dispute is not certain)

When you mess up:
-CR60 Relief from Judgment
    -usually charged with fees and sanctions but will prevent malpractice
   
Affidavit
-written statement sworn to before a person officially permitted by law to administer an oath
-penalty of perjury
-sworn to notary

Entry of Default
-action by court clerk noting that the defendant has failed to file a proper response to the complaint

Setting aside defaults
-petition the court to set it aside by making motion to set aside the default motion
-Federal CR 60 motion must be made within reasonable time of the judgment rendered (not exceed a year)


Chapter 6   Review Questions
1. What kinds of responses can the defendant make to the complaint?
2. What time limitations apply to these responses?  Can these time limitations be changed? If so, how?
3. What is the difference between a general denial, a qualified denial and a specific denial?
4. What is an affirmative defense and why is it important?
5. What is the general format of an answer?
6. What are the procedures for serving and filing an answer?
7. How are responsive pleadings amended?
8. What are counterclaims, cross-claims, and third-party complaints?
9. What are the different ways in which a defendant can challenge legal deficiencies with initial pleadings or process?
10. What happens if the defendant fails to file a timely response to the initial pleading?