Frivolous Defenses

Abstract

This article is about civil procedure, torts, insurance, litigation, and professional ethics. This is an empirical piece with data drawn from a sample of 356 answers to 298 complaints in car crash lawsuits to identify various ways that, I argue, insurance defense lawyers evade the rules of civil procedure and, frankly, act unprofessionally.

The empirical center of this piece examines 356 answers in car crash personal injury cases in Colorado’s district courts. First, I situate these cases within dispute pyramid elements including the total number of miles-traveled within Colorado and also with respect to the volume of civil litigation.

The piece engages several articles that Stanford Law Professor Nora Freeman Engstrom has written about the plaintiffs’ bar. This article is the opening article in a multiple-piece conversation with her. I show how insurance defense mill lawyers ignore the rules of civil procedure and the Code of Professional Conduct.

Next, I examine the answers of what I term insurance defense mill attorneys. Using my sample of 356 answers and 298 complaints, I examine the defense attorney’s departure from the Colorado Rules of Civil Procedure especially Rule 8. In particular, I count and analyze lawyers use of the claims that they need not answer because an averment:

1) calls for a legal conclusion;

2) is directed at a co-defendant; or

3) that a statute or document "speaks for itself."

I generally discuss the failure to investigate claims before answering, which, in my opinion, violates Rule 11 and the Code of Professional Conduct.

Third, the title derives from the last empirical section, which examines the pleading of lists of so-called “affirmative defenses.” I show that on average, each defense attorney includes nine items within a list of defenses. Few are true affirmative defenses. For 90 percent of the lists of defenses, insurance defense attorneys plead no factual support whatsoever.

The piece has some humor, too.

See also Russell, Disrupting Frivolous Defenses (Available on SSRN.)