Affirmative Defenses

Something(s) to know when you're dealing with a court case are what Affirmative Defenses are available to you. For those of you who don't know what an 'affirmative defense' is:

a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant's otherwise unlawful conduct. - Wikipedia

Here's a few that I came across doing a bit of research for a case that I'm currently assisting someone else with. Hope this is of some benefit to you in your journey.

List of Affirmative Defenses (Partial):

• - failure to state a claim upon which relief may be granted (almost always use)
• - statutory defenses prerequisites (these will vary depending on the claims)
• - preemption by federal or other law
• - accord and satisfaction
• - arbitration and award
• - assumption of risk
• - economic loss rule
• - contributory or comparative negligence
• - intervening cause
• - supervening cause
• - claimants own conduct, or by the conduct of its agents, representatives, and consultants
• - discharge in bankruptcy
• - duress
• - estoppel
• - recoupment
• - cardinal change
• - set off
• - failure of consideration
• - fraud (generally, as an equitable defense, as opposed to fraud in the inducement, below)
• - fraud in the inducement
• - illegality
• - injury by fellow servant
• - borrowed servant
• - laches
• - license
• - payment
• - release
• - res judicata
• - statute of frauds
• - statute of limitations
• - waiver
• - unclean hands
• - no adequate remedy at law
• - failure to mitigate damages (or, in some circumstances, successful mitigation of damages)
• - rejection of goods
• - revocation of acceptance of goods
• - conditions precedent
• - discharge
• - failing to plead fraud with particularity
• - no reliance
• - attorneys’ fees award not permissible
• - punitive damages not permissible
• - lack of standing
• - sole negligence of co-defendant
• - offset
• - collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. Section 13-21-111.6)
• - improper service
• - failure to serve
• - indemnity
• - lack of consent
• - mistake
• - undue influence
• - unconscionability
• - adhesion
• - contrary to public policy
• - restraint of trade
• - novation
• - ratification
• - alteration of product
• - misuse of product
• - charitable immunity
• - misnomer of parties
• - failure to exhaust administrative remedies
• - frustration of purpose
• - impossibility
• - preemption
• - prior pending action
• - improper venue
• - failure to join an indispensable party
• - no private right of action
• - justification
• - necessity
• - execution of public duty
• - breach by plaintiff
• - failure of condition precedent
• - anticipatory repudiation
• - improper notice of breach
• - breach of express warranty
• - breach of implied warranty
• - parol evidence rule
• - unjust enrichment
• - prevention of performance
• - lack of privity
• - merger doctrine
• - learned intermediary or sophisticated user doctrine
• - adequate warning
• - no evidence that modified warning would have been followed or would have prevented injury
• - manufacturing/labeling/marketing in conformity with the state of the art at the time
• - release
• - res judicata
• - assumption of the risk
• - product was unavoidably unsafe
• - product provides net benefits for a class of patients
• - spoliation
• - damages were the result of unrelated, pre-existing, or subsequent conditions unrelated to defendant's conduct
• - lack of causal relationship
• - act of god (or peril of the sea in admiralty cases)
• - force majeure
• - usury
• - failure to act in a commercially reasonable manner
• - acquiescence
• - doctrine of primary or exclusive jurisdiction
• - exemption
• - failure to preserve confidentiality (in a privacy action)
• - filed rate doctrine
• - good faith
• - prior pending action
• - sovereign immunity
• - truth (in defamation actions)
• - suicide (in accident or some benefits actions)
• - adverse possession (in trespass action)
• - mutual acquiescence in boundary (in trespass action)
• - statutory immunity (under applicable state or federal law)
• - unconstitutional (relating to statute allegedly violated)
• - insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts)
• - self-defense (in assault, battery, trespass actions)
• - permission/invitation (in assault, battery, trespass actions)
• - agency
• - Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time
• - at-will employment
• - breach of contract
• - hindrance of contract
• - cancellation of contract/resignation
• - circuitry of action
• - discharge (other than bankruptcy)
• - election of parties
• - election of remedies
• - joint venture
• - lack of authority
• - mutual mistake
• - no government action
• - privilege
• - reasonable accommodation
• - retraction
• - safety of employee (ADA)
• - statutory compliance
• - no damages (where required element of pleading)
• - termination of employement
• - undue burden (ADA)
• - wrong party
• - implied repeal of statute (see In re: Stock Exchanges Options Trading Antitrust Litigation, 317 F.3d 134 (2d. Cir. 2003) (hat tip Bill Shea)
• - failure to take advantage of effective system to report/stop harassment (in Title VII actions, called the Faragher-Ellerth defense) (see Jones v. D.C. Dept. of Corrections, 429 F.3d 276 (D.C. Cir. 2005) (hat tip Bill Shea)
• - fair use (copyright).  See, e.g., Campbel, aka Skywalker, et al. v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).  (hat tip Bill Shea)
• - Noerr-Pennington defense (antitrust) (a Sherman Act defendant can raise the affirmative defense of right to petition for redress, even if they use that right to try to gain an anti-competitive advantage).  See Noerr-Pennington Doctrine (2009), ABA Section of Antitrust Law, at p.107.  (hat tip Bill Shea)
• - Same decision defense (employer would still have fired employee for lawful reasons even if the actual firing was for a mix of lawful and unlawful reasons) (Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)) (hat tip Bill Shea)
• - ignorance of the law.  Ignorance of the law is rarely a defense to liability, but if proven, ignorance that racial discrimination violates federal law may be a defense to punitive damages in Title VII cases.  See, e.g. Alexander v. Riga, 208 F.3d 419, 432 (3d Cir. 2000) (hat tip Bill Shea)
• - business judgment rule (hat tip Iain Johnston)
• - claim of right (defense to element of intent required to prove theft)

Source: Affirmative Defenses (Litigation Checklist) by Jeff Vail (Attorney)

This Is How It's Done!

WARNING: This is not recommended for the faint of heart. 

Oops... I did it again! #DoneDeal #HadTo

And just in case you didn't get it that last time, I said...

"What did you do, already?" 

I guess I can tell you what I did again...

Better yet I'll just show you.

Well, here it is...

All that means is...CASE DISMISSED!

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Don't wait any longer to get that monkey off your back. 

The Oddest Thing: Manifestation of Thoughts

Just last night, I was wondering if the pending ELLIS COUNTY CASES were going to be dismissed. Today, when I think I'm going to DALLAS COUNTY COURTHOUSE to sign another Court Date reset statement, my lawyer, after showing up finally at about noon, tells me that the D.A. is in there waiting for him and he needs to go and talk with her. He's gone about six minutes, then he returns.
He comes back to tell me that the DISTRICT ATTORNEY'S OFFICE is dismissing the cases.

Why? I don't know for certain. I'm just glad it's finally over.

REWIND:

JANUARY 9TH, 2014

My attorney shows up, late as hell. I've been waiting for him to show for almost three hours. He finally approaches from the lobby area, dressed casual (which was unusual). He's got this smug/I'm-so-cool-because-I'm-a-lawyer look on his face. He tells me that he'll be back shortly with the court date reset papers to sign. 

He's gone a few minutes, then he comes back.
I sign the document. He leaves. He returns again with my copy.

I ask him, "How exactly could I benefit from appointing a fiduciary in these matters?"
Instantly he scoffs and sighs loudly with apparent disgust. Simultaneously his phone rings. 

He takes the call with hopes of relief yet without hesitation and sits on the first bench he sees for a moment to recuperate from this horrendous blow.

I tell him as I walk away, "It's okay, I'll just call you later."

My daughter and I leave. I never got around to calling him about it. I figured I'd just let him linger with the thought of him possibly having to do something that he really doesn't want to do (I.e. jail time for his client).

BACK TO THE PRESENT:

You can Google" APPOINTMENT OF FIDUCIARY pdf" and find a few different documents that may illustrate what a good appointment can possibly do for you in your situation. 

I've only just recently come to the realization that an APPOINTMENT OF FIDUCIARY comes in very handy when you want to get something done that you may not want to do yourself, and as a result of what's been called a benefit-of-office, all BAR CARD HOLDERS are eligible for this appointment and in almost all cases they shall be required to fulfill the duties associated with the appointment without any leniency lest they be held in contempt of court (I.e. unless they would rather be thrown in jail).

I digress briefly.

Manifesting thoughts is something some may think is a form of magic. Is it? Or is it one simply exhausting one's right of free will? I would say it's the latter.

I, as one of the DeiHuarwe, know that it is my duty to know the law and only allow it to be used to my benefit and not to my detriment. I shall do as I must to ensure the longevity of myself and my family.

If it means that I have to manifest all of my thoughts to fulfill my destiny and see that all of my inherent birthrights stay mine until it is time for me to pass them on to my heirs, I shall stand and remain unwavering.

Case Dismissed? Or Case Closed?

Today I went to ELLIS COUNTY COURT AT LAW NO 2 to deliver to both the COURT COORDINATOR, and the JUDGE, each a NOTICE OF APPEARANCE which I had drafted as answer to the charges filed against the ens legis HARVEY LEELANE SEARCY.
I had done this before with a case I was dealing with in the RED OAK MUNICIPAL COURT a short while back. As of the date of my drafting this post, I have yet to receive a response from the MUNICIPAL COURT JUDGE requesting any further action on behalf of the ens legis. Nor have any warrants been issued in re. I'm not sure if the cases have been dismissed or closed, but so far so good. I guess in this case no news is indeed good news. I'm sure that if my process wasn't sufficient/adequate I would have heard something from the bonding company by now. I'll post more on this tomorrow. I know it's been a while since my last post, so I thought I'd update you on what's been happening. I'll shall also post video documentation of part of my delivery process. It's pretty simple. Small role to play to get my notices delivered and the proof of delivery also.
I think it's pretty funny. You may not. At the very least though, it's effective and almost foolproof.
It's late. I've got to go to DALLAS COUNTY COURT tomorrow morning to wait on my lawyer to get the court date reset again. I'll have more for you by tomorrow evening though.