Civil Procedure - Strategies from Defendant's POV

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noleknight16
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Civil Procedure - Strategies from Defendant's POV

Postby noleknight16 » Thu Dec 06, 2012 2:08 am

My Civ Pro exam consists of a really long fact pattern, a complaint, and then you as the defendant's lawyer. She gives 3 questions on strategy (what should you do in the pleading phase, what's your strategy for your interview with so and so, X receives a document request, how should you respond)

Does anyone have a comprehensive list of defense strategies used throughout the process? Civ Pro is by far my worst subject and I'd appreciate the help.

The defense strategies that immediately come up in my mind are:

    Rule 12 motions/answers

    Rule 8(c)(1) affirmative defenses (which interjects a new fact)

    Address every claim in the complaint (deny, admit, do not know) via Rule 8(b)

    Discovery tools

    Motion For Summary Judgment via Rule 56

    Counterclaims/crossclaims/impleader(indemnity or contribution)

    Timings - (make sure you respond within the proper time after service of process)

    Removal (fed ct would benefit D)/Transfer of Venue/Forum non-conveniens(typically moved to foreign ct, less potential losses for D)

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DocHawkeye
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Re: Civil Procedure - Strategies from Defendant's POV

Postby DocHawkeye » Thu Dec 06, 2012 10:12 am

Don't forget Rule 11: The court can impose sanctions for a frivelous claim imporperly extending the law. This won't dispose of the claim, but might be worth throwing in epsecially if the plaintiff's claim is a weird one. It often works well with a 12(b)(6) motion.

Also, have you covered jurisdiction? If so, you will want to remember that objections to jurisdiction must come before other answers. If you fail to object to jurisdiction before filing an answer, even a motion to dismiss like under 12(b)(6), you will have waived your right to that objection.

mr.hands
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Re: Civil Procedure - Strategies from Defendant's POV

Postby mr.hands » Thu Dec 06, 2012 10:30 am

DocHawkeye wrote:Don't forget Rule 11: The court can impose sanctions for a frivelous claim imporperly extending the law. This won't dispose of the claim, but might be worth throwing in epsecially if the plaintiff's claim is a weird one. It often works well with a 12(b)(6) motion.

Also, have you covered jurisdiction? If so, you will want to remember that objections to jurisdiction must come before other answers. If you fail to object to jurisdiction before filing an answer, even a motion to dismiss like under 12(b)(6), you will have waived your right to that objection.


For PJ only, that is. SMJ can be raised anytime, even appeal

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DocHawkeye
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Re: Civil Procedure - Strategies from Defendant's POV

Postby DocHawkeye » Thu Dec 06, 2012 12:59 pm

mr.hands wrote:
DocHawkeye wrote:Don't forget Rule 11: The court can impose sanctions for a frivelous claim imporperly extending the law. This won't dispose of the claim, but might be worth throwing in epsecially if the plaintiff's claim is a weird one. It often works well with a 12(b)(6) motion.

Also, have you covered jurisdiction? If so, you will want to remember that objections to jurisdiction must come before other answers. If you fail to object to jurisdiction before filing an answer, even a motion to dismiss like under 12(b)(6), you will have waived your right to that objection.


For PJ only, that is. SMJ can be raised anytime, even appeal


I stand corrected.

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noleknight16
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Re: Civil Procedure - Strategies from Defendant's POV

Postby noleknight16 » Thu Dec 06, 2012 2:05 pm

Thanks for the help. I forgot Rule 11 sanctions. In both of the practice tests she gave us, the complaint filed by the plaintiff's attorney isn't signed. Free points to bring that up as a Rule 11 motion to strike the whole complaint, but then say the judge will almost certainly send it back to the plaintiff's attorney and as long as he sends it back with a signature promptly it will be okay... though still worth trying.

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noleknight16
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Re: Civil Procedure - Strategies from Defendant's POV

Postby noleknight16 » Thu Dec 06, 2012 7:40 pm

Anyone else got any suggestions? Final is tomorrow. Thanks :D




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