22 Trial Lawyer • Winter 2024 Ashley Vaughn By Ashley Vaughn OTLA Guardian As plaintiffs’ counsel, we have a duty to proactively move our clients’ cases forward toward a resolution. But all too often we react more defensively rather than offensively, due to habit, inattention, procrastination or some combination of any of those. Two underutilized tools I use be more proactive are motions to clear-out frivolous defenses and motions to determine the sufficiency of responses to requests for admissions. When used effectively, these motions let the defense counsel know you are not just a “potted plant” and make for a cleaner, tighter case. Attacking affirmative defenses How often, after you file your carefully crafted complaint, does the defendant answer with a list of “affirmative” defenses as long as your arm? There’s the classic and generic “Plaintiff fails to assert a claim for which relief can be granted” to, at least in many of my child abuse cases, the hugely informative “Plaintiff’s claims violate Defendant’s due process rights.” Many times, these “affirmative” defenses are, at best, generic or, at worst, inapplicable or not affirmative defenses at all. These defenses do little to nothing to apprise you of the real issues, muddy up the case, and unnecessarily complicate jury instructions and verdict forms. I like to knock out frivolous and inapplicable defenses early. Right out of the gate. It shows defense counsel you’re paying attention. Often, defense attorneys will throw in a bunch of defenses ostensibly “out of an abundance of caution” or to “preserve the record,” when really, it’s just laziness or to generate more time. When I threaten to move against the defenses, it often seems to catch attorneys off-guard because they’re not used to having to justify their laundry list. Simplifying your case also makes it easier for the jury to find for your client. Obfuscation favors the defendant. Rick Friedman famously advocates for simplifying the plaintiff’s case as much as possible. I want to know which defenses I really need to worry about and narrow my focus to defeating those. If you make it to trial with a list of fifteen affirmative defenses, it signals to the jury that there must be a lot wrong with your client’s case. Defendants may also plead “affirmative defenses” that are truly just legal arguments. Affirmative defenses are those that should be decided by a jury. For example, the jury should not be deciding whether the extended statute of limitations for sexual abuse claims retroactively revived my client’s claims in violation of a defendant’s due process rights. Leaving those issues in at trial will confuse the jury and that confusion will likely benefit the defendant. When and how So, you’ve decided that you want to move against some affirmative defenses — when and how do you do it? Do you file a motion to strike, dismiss for judgment on the pleadings or for summary judgment? And, of course, the answer is: it depends.1 “Sham,” “frivolous,” “irrelevant,” or “insufficient” defenses are subject to being struck or dismissed. ORCP 21E(1)- ON THE OFFENSE ATTACKING FRIVOLOUS AFFIRMATIVE DEFENSES & REQUESTS FOR ADMISSION RESPONSES Simplifying your case also makes it easier for the jury to find for your client. Obfuscation favors the defendant.
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