23 Trial Lawyer • Winter 2024 See On The Offense p 24 (2). Think about which defenses are either pleaded inappropriately or truly are not viable or applicable, regardless of the facts. You won’t succeed in getting a defense thrown out if there are disputed issues of fact that could support it, no matter how convinced you may be of your client’s version of events. A sham or frivolous defense is one that has no legal basis. An insufficient defense is one that is not supported by facts or pleaded with particularity. We too often forget or ignore that defendants are required to allege the factual bases for their defenses with specificity and particularity, the same as plaintiffs are required to for claims. See ORCP 21A(2) (b). Depending on the circumstances, I move to make those defenses more definite and certain, and alternatively move to dismiss them if the defendant can’t plead them more specifically. Remember that with affirmative defenses, the defendant has the burden of producing evidence that would prove the defense at trial, because an affirmative defense alleges new facts that, if true, would defeat the claim. Pacificorp v. Union Pac. R.R., 118 Or App 712, 717 (1993). If you’re looking for the utmost expediency, file a motion to strike. You must file a motion to strike within ten days of service of the defendant’s answer. ORCP 21 E. It shows defense counsel you are paying attention, but that expediency cuts both ways — if you can’t meet that deadline, there are other approaches. A motion to dismiss or against the pleadings gives you the most leeway on timing. You can file a motion for summary judgment at any point in the case prior to the summary judgment deadline (usually 60 days prior to trial). ORCP 47 C. An upside of summary judgment is that if your motion is granted, the defendant can’t replead the defense. A downside is the hefty filing fee. Denials v. affirmative defenses Defendants often allege “affirmative defenses” that are actually “negative defenses” or denials. These are not proper affirmative defenses. A classic example of this is the “failure to state a claim” defense — that is simply a denial that the plaintiff has pleaded sufficient facts to state a claim. It is not an allegation of new facts that, if true, would defeat the plaintiff’s claim. Unigestion Holding, S.A. v. UPM Tech., Inc., 305 F Supp 3d 1134, 1143-44 (D Or 2018) Effective response The ORCPs provide very specific guidelines for appropriately responding to requests for admissions (RFAs). If a party fails to follow those guidelines, the requesting party can and should file a motion to determine the sufficiency of these responses. See ORCP 45 B-C. A motion to determine the sufficiency is an effective yet underutilized tool. I know from my Secret Defense Attorney Sources that (1) defense attorneys hate having to respond to RFAs and (2) hate having to respond to them straightforwardly. In at least one significant case, defendants settled with us rather than have to respond to our RFAs. If a responding party denies a request that the requesting party then proves the truth of at trial, the requesting party can get an order requiring the other party to pay the expense associated with having to prove that issue (though it seems, anecdotally, that such awards are rare). See ORCP 46 C. Having to respond candidly to direct questions about liability goes against many defense attorneys’ motus operandi of delay, deflect and detour. The legal standard Effectively employed, RFAs simplify the issues for trial and require the opposing party to “put up or shut up.”2 When a party’s “responses” to RFAs are riddled with avoidance, technicalities and creative wordsmithing, they undermine the entire point of this discovery tool. ORCP 45 A provides that requests can cover “the
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