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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NOTICE OF APPEARANCE - SPECIAL DELIVERY

Please forgive me for having taken so long to get this to you, but I've been a bit busy enjoying life and celebrating a recent victory (one of many to come). I wanted to have this post done on Thursday but like I said I was busy.

Now, some of you may know that I've been dealing with a few legal matters that I'd rather have not had to deal with but, then again, no one else would have done it for me, so I had to get it done.

On Tuesday, the 7th of January, I received from Patricia Marshall, Court Coordinator of Ellis County's COURT AT LAW NO 2, two documents which I shall describe as notices implying a request for the appearance of the ens legis HARVEY LEE LANE SEARCY at an arraignment and initial court hearing that had been set for January 22nd of 2014 at 9 a.m. in the COUNTY COURT AT LAW NO 2 of Ellis County, 109 South Jackson, Waxahachie, Texas. So, on January 22nd of 2014, as per their implied request, I gave them what they asked for, which was the ens legis HARVEY LEE LANE SEARCY.

Some of you may be wondering, "What is this ens legis he keeps mentioning?" Well...the answer is quite simple. Ens legis is Latin for legal fiction (I.e. entity of law), or more clearly translated as creature of law.  That is just about anything (or any creature) you can create with an ink pen or pencil.

I digress...

Now, I know that I'm real because God made me that way, that is in His likeness and His image. When God made me, he blessed me with a birthright which is equated with one of His own rights, made apparent in His guide book as the right to not be ruled by (or suffer at the hands of) His creations. This is one of those unalienable rights to which is referred in the United States Constitution. This means that my creations cannot rule me (or cause me to suffer), nor can those of my siblings/peers.

I wouldn't allow any kid to tell me what to do, because that kid should know to stay in his/her place. If the kids told the parents what to do, the whole world would be turned inside-out and upside-down. God wouldn't allow that, and neither shall I.

Real recognize real and I don't recognize YOU (the fiction).

I looked up the word "recognize" in the Black's Law Dictionary a few days ago, and it tells me that the word recognize means to"contract with the Crown." I figure that if I'm going to contract with the Crown of any person, it will be the "Crown" of a flesh-n-blood (or natural) person. That is one whom is alive, one whom breathes, walks, talks, produces, and etc.

To be ruled by someone is to be required to request their permission to act as you would like to. Because I know that I cannot be ruled by my creations or the creations of my siblings/peers, I know that I shall not allow a fiction to run, or rule, my life, nor cause me to suffer for any reason whatsoever. So, why in the hell would I asked a fictional being for permission to do anything at all?

Back to the subject at hand...

In writing, Patricia Marshall, the Court Coordinator of Ellis County Court at Law No 2, implied to request the ens legis HARVEY LEE LANE SEARCY's appearance in a COURT AT LAW (not the same as a Court of Law). Now, one should comprehend that there is indeed a big difference between what is legal and what is lawful. When a court (or its agent(s)/officer(s)) operates "at law" it is indeed operating "outside of the law."

You may, or may not, have heard the term "it's a thin line between love and hate." Well, I'd like to say that if you could easily grasp that concept then you should not have any trouble grasping the concept of there being a difference between what is legal and what is lawful.

Now, just as in the case of love and hate, there is a thin line between legal and lawful. One should also come to comprehend that this thin line to which I refer is nothing to play with. If you've ever heard the term "if you step on a crack you break your mama's back" then you should know that this is exactly that "crack". That crack can kill...and it does not discriminate. So, don't think that life is a game because it is not. And you should know that these fictions, when I say fictions I mean those acting in official or any corporate capacity, can only interact with you (the flesh-n-blood man/woman) by proxy (i.e. through a real conduit, or a flesh-and-blood man and/or woman). It is only from the actions of flesh-and-blood man and woman that a fiction can realize anything, and any/all corporations are indeed fictions. This includes any and all government agencies who only get their rights/privileges to act from the consent of the governed. This means that a government agency or its agents cannot do to you what you do not consent to, nor can they do for you what you do not consent to, meaning if you do not agree then they cannot proceed.

In respects to making an agreement, the agreement is supposed to be beneficial for all real parties involved, or it is not an agreement at all. All real parties are secured. I mean to say that all real parties are secured parties. So, I, the real-party-in-interest, that is secured party, acting as agent for the fiction (though not necessarily in the capacity of a fiction), drafted a NOTICE OF APPEARANCE on behalf of the fiction (which therein and therewith the COURT's purported request/order was indeed fulfilled) and delivered it to the fictions that purportedly requested the appearance of the ens legis HARVEY LEE LANE SEARCY.

The following are digital scanned copies of the Delivery Receipts verifying delivery of the separate NOTICES OF APPEARANCE was indeed made unto Patricia Marshall, Court Coordinator.

Delivery Receipt for Delivery Item No# HLLS012201 signed for and received by Patricia Marshall, Court Coordinator

Delivery Receipt for Delivery Item No# HLLS012202 signed for and received by Patricia Marshall, Court Coordinator

Below are copies of the drafts that I delivered to JUDGE A. GENE CALVERT JR and COURT COORDINATOR PATRICIA MARSHALL.

NOTICE OF APPEARANCE to PATRICIA MARSHALL, COURT COORDINATOR

NOTICE OF APPEARANCE to A. GENE CALVERT JR., JUDGE

I used a template from another NOTICE OF APPEARANCE that I had created for another related matter in the RED OAK MUNICIPAL COURT and modified it a bit to apply the same technology to the CAUSES in the ELLIS COUNTY COURT.

To this date, I have yet to hear anything (or receive any words stated in re) from either of the COURTS or their agents in regards to my administrative procedures. No news has been received from the bonding companies about any warrants being issued for Failure to Appear. So, in these cases, I believe it is safe to say that "no news is indeed good news."

That's about all that I have to say on this matter right now. I shall leave you with video evidence of my special delivery made to the COURT'S AGENTS and received by COURT COORDINATOR PATRICIA MARSHALL. Enjoy...