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Im a rising 2L working supporting litigation (mostly) at a corporation. My 2 assignments have basically been "were being counterclaimed on the grounds we violated X law. What are the possible defenses we could use to get this dismissed?" sometimes with suggestions where to start. The only problem is both times the copy of the counterclaim I got had absolutely zero factual allegations, just a boilerplate paragraph that says "[corporation] violated law blah blah through blah."

A lot of the case law Im researching is fact specific (..like all case law I guess). Without any facts/allegations, its pretty much impossible to evaluate the claim; its not even like I can say, "assuming the allegations are true, then...." I want to ask why we didn't move for 12(b)(6) or summary judgment if this is all they had (or whatever the state law equivalent is if its in state court) but I dont want to make it sound like I think they screwed up. They also seem to give me very little other documentation about the cases, which also makes it hard (even when I've asked for more).

Wtf? My memos are obviously going to suck, because theyre basically like "we can probably use X defense....but its difficult to assess without knowing whats being alleged." Dont know if I should mention anything or just turn them in and basically just cover the background and case law on the subject rather than predicting if we can use it and see what they say.

Anyone else had to deal with something like this?

It sounds like you should go back to the person who assigned this to you and ask what he's looking for. If that's not an option for whatever reason, I would simply explain in general terms what the defenses are to the cause of action in question. Sometimes assignments in real life are pure legal assignments where you're not applying law to fact. You are just being asked to explain the law on a particular subject.

Bronte wrote:It sounds like you should go back to the person who assigned this to you and ask what he's looking for. If that's not an option for whatever reason, I would simply explain in general terms what the defenses are to the cause of action in question. Sometimes assignments in real life are pure legal assignments where you're not applying law to fact. You are just being asked to explain the law on a particular subject.

This. I've gotten a few assignments like this. Ask lots and lots and lots of questions. Making sure you understand the assignment is never a waste of time. You can play the new guy card and profess to wanting to make sure you understand the assignment so you don't waste anyone's time.

I've found it helpful to send an email back confirming an assignment with the specific directions they've given me, along with a little phrase that says 'if this isn't correct or if you have any questions, please don't hesitate to contact me.' That generally catches most of the stuff like what you're dealing with.

Don't be afraid to ask questions or just to ask to talk about the case. Not asking questions and messing up is WAY worse than asking questions and doing it right. Being confident enough to ask questions and show you're interested in the work is a strength and will be appreciated.

yeah just echoing whats being said I feel like a lot of time for my assignments attorneys don't give a clear description because they want to see if you have the balls to go and ask the questions. Most older attorneys prefer face to face. What helps me is I basically use my skills i developed as a waiter on them after they've finished talking. I usually say do u mind if i ask one more question, and then say something a long the lines of it helps me to read back what u said to make sure that i have a full grasp of the issue. If you can read it back to them then you understand it. Then I usually go type of what i handwrote so i don't forget some of the nuances of the assignment. Those are just some tips to make sure your communicating properly. Some assignments they don't expect you to get right, some they do. The key is doing you best and turning in quality work every time.

Anonymous User wrote:Im a rising 2L working supporting litigation (mostly) at a corporation. My 2 assignments have basically been "were being counterclaimed on the grounds we violated X law. What are the possible defenses we could use to get this dismissed?" sometimes with suggestions where to start. The only problem is both times the copy of the counterclaim I got had absolutely zero factual allegations, just a boilerplate paragraph that says "[corporation] violated law blah blah through blah."

A lot of the case law Im researching is fact specific (..like all case law I guess). Without any facts/allegations, its pretty much impossible to evaluate the claim; its not even like I can say, "assuming the allegations are true, then...." I want to ask why we didn't move for 12(b)(6) or summary judgment if this is all they had (or whatever the state law equivalent is if its in state court) but I dont want to make it sound like I think they screwed up. They also seem to give me very little other documentation about the cases, which also makes it hard (even when I've asked for more).

Wtf? My memos are obviously going to suck, because theyre basically like "we can probably use X defense....but its difficult to assess without knowing whats being alleged." Dont know if I should mention anything or just turn them in and basically just cover the background and case law on the subject rather than predicting if we can use it and see what they say.

Anyone else had to deal with something like this?

You want to be a lawyer, right?

And you're in training to be a lawyer, right?

You realize you're not in law school right now, right?

You do realize that eventually you'll never go back to being in law school, right?

And having realized all that, you do understand that you have to start thinking and acting like a lawyer, right?

So, with all of that said, this would be a good time start thinking and acting like lawyer.

Lawyers rarely get a question neatly presented to them in a box, with complete static control, and caselaw that fits neatly into their situation.

Everything is always fluid, facts develop as investigations progress, clients sometimes misremember or just mischaracterize, and sometimes you run out of time because, well, maybe your kids came down with a serious case of the chickenpox.

You get the idea. You were presented with a client problem. Solve it. And solving it doesn't necessarily mean just logging onto Westlaw or Lexis and punching in a search term.

It means finding the best, and most efficient, solution for your client -- by any (and all) means necessary.

anon168 wrote:

Anonymous User wrote:Im a rising 2L working supporting litigation (mostly) at a corporation. My 2 assignments have basically been "were being counterclaimed on the grounds we violated X law. What are the possible defenses we could use to get this dismissed?" sometimes with suggestions where to start. The only problem is both times the copy of the counterclaim I got had absolutely zero factual allegations, just a boilerplate paragraph that says "[corporation] violated law blah blah through blah."

A lot of the case law Im researching is fact specific (..like all case law I guess). Without any facts/allegations, its pretty much impossible to evaluate the claim; its not even like I can say, "assuming the allegations are true, then...." I want to ask why we didn't move for 12(b)(6) or summary judgment if this is all they had (or whatever the state law equivalent is if its in state court) but I dont want to make it sound like I think they screwed up. They also seem to give me very little other documentation about the cases, which also makes it hard (even when I've asked for more).

Wtf? My memos are obviously going to suck, because theyre basically like "we can probably use X defense....but its difficult to assess without knowing whats being alleged." Dont know if I should mention anything or just turn them in and basically just cover the background and case law on the subject rather than predicting if we can use it and see what they say.

Anyone else had to deal with something like this?

You want to be a lawyer, right?

And you're in training to be a lawyer, right?

You realize you're not in law school right now, right?

You do realize that eventually you'll never go back to being in law school, right?

And having realized all that, you do understand that you have to start thinking and acting like a lawyer, right?

So, with all of that said, this would be a good time start thinking and acting like lawyer.

Lawyers rarely get a question neatly presented to them in a box, with complete static control, and caselaw that fits neatly into their situation.

Everything is always fluid, facts develop as investigations progress, clients sometimes misremember or just mischaracterize, and sometimes you run out of time because, well, maybe your kids came down with a serious case of the chickenpox.

You get the idea. You were presented with a client problem. Solve it. And solving it doesn't necessarily mean just logging onto Westlaw or Lexis and punching in a search term.

It means finding the best, and most efficient, solution for your client -- by any (and all) means necessary.

Not helpful, extremely dickish. You're not cross-examining him.

You mentioned and dismissed the first place I'd go -- 12(b)(6) or the state equivalent. Or, if you've answered the counterclaim, a motion for judgment on the pleadings. If it's boilerplate, why not still bring it up? This is the logical place to go. I'd look up examples of successful 12(b)(6) challenges to similar "threadbare" conclusory statements under the same claims and make an analogous argument as to how you can formulate your 12(b)(6).

Next, I'd look up recognized affirmative defenses or burden shifting provisions for the claims. I'd enumerate them and the standard you'd need to prove them. Give an example of a case where it worked, and explain why.

Anonymous User wrote:You mentioned and dismissed the first place I'd go -- 12(b)(6) or the state equivalent. Or, if you've answered the counterclaim, a motion for judgment on the pleadings. If it's boilerplate, why not still bring it up? This is the logical place to go. I'd look up examples of successful 12(b)(6) challenges to similar "threadbare" conclusory statements under the same claims and make an analogous argument as to how you can formulate your 12(b)(6).

Next, I'd look up recognized affirmative defenses or burden shifting provisions for the claims. I'd enumerate them and the standard you'd need to prove them. Give an example of a case where it worked, and explain why.

Yeah, I guess part of my original question was how to bring up something seemingly obvious without making it sound like I'm questioning or second guessing the attorney who assigned it.

anon168 wrote:

Anonymous User wrote:Im a rising 2L working supporting litigation (mostly) at a corporation. My 2 assignments have basically been "were being counterclaimed on the grounds we violated X law. What are the possible defenses we could use to get this dismissed?" sometimes with suggestions where to start. The only problem is both times the copy of the counterclaim I got had absolutely zero factual allegations, just a boilerplate paragraph that says "[corporation] violated law blah blah through blah."

A lot of the case law Im researching is fact specific (..like all case law I guess). Without any facts/allegations, its pretty much impossible to evaluate the claim; its not even like I can say, "assuming the allegations are true, then...." I want to ask why we didn't move for 12(b)(6) or summary judgment if this is all they had (or whatever the state law equivalent is if its in state court) but I dont want to make it sound like I think they screwed up. They also seem to give me very little other documentation about the cases, which also makes it hard (even when I've asked for more).

Wtf? My memos are obviously going to suck, because theyre basically like "we can probably use X defense....but its difficult to assess without knowing whats being alleged." Dont know if I should mention anything or just turn them in and basically just cover the background and case law on the subject rather than predicting if we can use it and see what they say.

Anyone else had to deal with something like this?

You want to be a lawyer, right?

And you're in training to be a lawyer, right?

You realize you're not in law school right now, right?

You do realize that eventually you'll never go back to being in law school, right?

And having realized all that, you do understand that you have to start thinking and acting like a lawyer, right?

So, with all of that said, this would be a good time start thinking and acting like lawyer.

Lawyers rarely get a question neatly presented to them in a box, with complete static control, and caselaw that fits neatly into their situation.

Everything is always fluid, facts develop as investigations progress, clients sometimes misremember or just mischaracterize, and sometimes you run out of time because, well, maybe your kids came down with a serious case of the chickenpox.

You get the idea. You were presented with a client problem. Solve it. And solving it doesn't necessarily mean just logging onto Westlaw or Lexis and punching in a search term.

It means finding the best, and most efficient, solution for your client -- by any (and all) means necessary.

Yeah, well, that's just, like, your opinion, man.

anon168 wrote:You want to be a lawyer, right?

And you're in training to be a lawyer, right?

You realize you're not in law school right now, right?

You do realize that eventually you'll never go back to being in law school, right?

And having realized all that, you do understand that you have to start thinking and acting like a lawyer, right?

So, with all of that said, this would be a good time start thinking and acting like lawyer.

Lawyers rarely get a question neatly presented to them in a box, with complete static control, and caselaw that fits neatly into their situation.

Everything is always fluid, facts develop as investigations progress, clients sometimes misremember or just mischaracterize, and sometimes you run out of time because, well, maybe your kids came down with a serious case of the chickenpox.

You get the idea. You were presented with a client problem. Solve it. And solving it doesn't necessarily mean just logging onto Westlaw or Lexis and punching in a search term.

It means finding the best, and most efficient, solution for your client -- by any (and all) means necessary.

Also be aware that you have to interact with other lawyers in a respectful and civil manner. I understand what you're saying, and it's good advice, but your tone is rude.

Anonymous User wrote:

Anonymous User wrote:You mentioned and dismissed the first place I'd go -- 12(b)(6) or the state equivalent. Or, if you've answered the counterclaim, a motion for judgment on the pleadings. If it's boilerplate, why not still bring it up? This is the logical place to go. I'd look up examples of successful 12(b)(6) challenges to similar "threadbare" conclusory statements under the same claims and make an analogous argument as to how you can formulate your 12(b)(6).

Next, I'd look up recognized affirmative defenses or burden shifting provisions for the claims. I'd enumerate them and the standard you'd need to prove them. Give an example of a case where it worked, and explain why.

Yeah, I guess part of my original question was how to bring up something seemingly obvious without making it sound like I'm questioning or second guessing the attorney who assigned it.

You've now said this twice. The issue you should be worried about is not making yourself sound overly obtuse and pompous at the same time. It doesn't sound like you asked a very key question: what is the proceedural posture of the case. You've used the word "dismissed.". That's generally an indicator that they are trying to bounce this on 12(b)6/demurrer. If that's the case you should probably be researching failure to state a claim and affirmative defenses (among others). The insufficiency of the counterclaim will be a relevant issue then. If you meant that they want to move for summary judgment, then they probably want you to get case law that tells them what type of facts would be "good facts" to develop in discovery.

In other words, stop worrying that you are going to embarrass the attorney that assigned this to you by pointing out some obvious error they made. Filling a motion to dismiss did not slip their mind. It seems you didn't ask a bunch of questions that were critical to doing the assignment. Don't worry about that either. They expect you to do this sort of thing. Just go back now and let them know that now that you've started the research, you realize that you need more info from them. Then ask intelligent questions.

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Not sure if someone has mentioned the most basic answer to your question, but - Just ask for the facts. The person who gave you the assignment knows the background, just tell them you need some more facts.

Oh, and if you dont have the entire pleading, ask for that or, if its a federal case, get it off pacer.

Good luck.

Just go to the assigning attorney and ask to discuss a bit more in depth, let him know your questions, etc. Many times, things can be easily cleared up if you take a few minutes to discuss and converse about it, as opposed to staying quiet and then turning something in that is entirely off the mark. Of course, don't be calling up to ask Q's every hour of the day. But don't think that all you get is one quick meeting and that you have to fly solo from that point on.

Asked today, they said motion to dismiss wasn't available because of the case getting transferred to a different court or something. Didn't really understand it but glad I asked. I phrased it as "would 12(b)6 be available?" rather than "why didn't we file 12(b)6?" Doesn't sound nearly as obnoxious.

And I guess I exaggerated that it was "impossible". I turned it in, so it obviously wasnt actually impossible. Facts were still pretty sparse but w/e. Guess Ill just have to wait for feedback.

Does your firm not have anything on the case on its document management system that could be of any help?