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Common Law Pleading Framing the Issue for Decision

Common Law Pleading Framing the Issue for Decision. Defendant’s Choice #1: demur or plea Demurrer Even if it’s true, so what ? FR 12(b)(6) Plea That may sound like serious allegation, but … FR 12(b)(1)-(5),(7) motions, denial, affirmative defense.

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Common Law Pleading Framing the Issue for Decision

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  1. Common Law PleadingFraming the Issue for Decision • Defendant’s Choice #1: demur or plea • Demurrer • Even if it’s true, so what? • FR 12(b)(6) • Plea • That may sound like serious allegation, but … • FR 12(b)(1)-(5),(7) motions, denial, affirmative defense

  2. Common Law PleadingFraming the Issue for Decision • Defendant’s Choice #2: if plea • Dilatory plea or plea in bar • Dilatory plea • not here, not now • FR 12(b)(1)-(5) motions to dismiss • Plea in bar • answer on merits

  3. Common Law PleadingFraming the Issue for Decision • Defendant’s Choice #3: if plea in bar • Traverse or confession and avoidance • Traverse • Didn’t do it • FR 8(b) Denial • Confession and avoidance • Yes, but . . . • FR 8(c) affirmative defense

  4. BIG THEMESpecialized v. Trans-substantive Procedures • Trans-substantive Procedures • Pleading • Other • Advantages • Disadvantages

  5. BACKGROUNDChancery • Dual Systems • Cf. FR 1 • Equitable Remedies • Right to Jury Trial

  6. BACKGROUNDReforming Process: The Codes • Alternatives to the “writ system” • Pleading “facts” • Levels of generality • California, New York, Oregon . . .

  7. BACKGROUNDReforming Process: Federal Rules • Alternatives to the “writ system” • The Federal Rules Pleading Requirements • No law • No specificity as to facts • “short, plain statement of the claim”

  8. STATING A CLAIM • Why form complaints? • What would David Dudley field think?

  9. STATING A CLAIM • People ex rel. Dept. of Transp. v. Superior Court, p. 404 • What was wrong with the complaint?

  10. TAKEAWAYS • Practical Questions • What does a pleading look like? • As a lawyer, what must I say in a pleading? • Big themes • Access to courts for plaintiffs • Notice (due process) for defendants • Systemic concerns for efficiency

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