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Article Title

Frivolous Defenses

Abstract

This Article is about civil procedure, torts, insurance, litigation, and professional ethics. The Article is the opening article in a conversation with Stanford Law Professor Nora Freeman Engstrom, who has written about the plaintiffs’ bar and settlement mill attorneys. The empirical center of this piece examines 356 answers to 298 car crash personal injury cases in Colorado’s district courts. The Article situates these cases within dispute pyramid elements, including the total number of miles-traveled within Colorado and the volume of civil litigation. The Article then analyzes the defense attorneys’ departures from the Colorado Rules of Civil Procedure, especially Rule 8. In particular, I count and analyze lawyers’ claims that they need not answer because an allegation calls for a legal conclusion, is directed at a co-defendant, or that a statute or document "speaks for itself." The Article also generally discusses the failure to investigate claims before answering, which, in my opinion, violates Rule 11 and the Code of Professional Conduct. Last, the title derives from the final empirical section, which examines the pleading of laundry lists of so-called "affirmative defenses." The Article shows that on average, each defense attorney includes nine items within a list of defenses. Few are true affirmative defenses. For 90% of the lists of defenses, there is no factual support whatsoever. On average, insurance defense attorneys plead 0.14 facts in support of each list of affirmative defenses.

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