The adoption of the Ohio Rules of Civil Procedure on July 1, 1970, ushered in the age of "Pleader's Lib" for the plaintiff's attorney. In code days, a pleader had to allege facts which showed a cause of action. Under the rules, however, a statement of claim' need only state the bare operative facts which show that the claimant has a claim for relief, and the complaint cannot be dismissed for failure to state such a claim unless it appears beyond doubt from the face of the pleading that the claimant can prove no set of facts entitling him or her to recovery. This essential change in the basic rules for pleading a statement of claim exemplifies the basic philosophy of the civil rules, a philosophy which transfers the burden of pleading from the claimant to the defender. As a general rule, it may be said that if an affirmative defense is not timely and properly pleaded, it is waived; if that waiver is not made with the informed consent of the client, it will expose the defending attorney to a charge of malpractice. Thus, the defending attorney must be able to recognize an affirmative defense, must know how to properly plead it, and must be aware of the various means of recovering from an unintended waiver of that defense. The following pages will present some introductory notes to each of these topics.
J. Patrick Browne,
Ohio Rule 8(C) and Related Rules: Some Notes on the Pleading of Affirmative Defenses,
27 Clev. St. L. Rev.
available at http://engagedscholarship.csuohio.edu/clevstlrev/vol27/iss3/4