Disrupting Frivolous Defenses

95 Pages Posted: 17 Mar 2021 Last revised: 15 Apr 2021

See all articles by Thomas D. Russell

Thomas D. Russell

University of Denver Sturm College of Law

Date Written: March 15, 2021

Abstract

Judge Milton I. Shadur was a disrupter of frivolous defenses. In 2018, Judge Shadur died at the age of 93 after 37 years as a judge of the United States District Court for the Northern District of Illinois. Sua sponte, Judge Shadur reviewed civil answers, and disrupted the pleading of frivolous defenses. Sua Sponte Shadur—as some lawyers called him—rejected answers that departed from or ignored Rule 8 of the Federal Rules of Civil Procedure.

In 2001, Judge Shadur issued an Appendix to an order in State Farm v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001) with his expectations regarding how defense lawyers were to answer according to Rule 8 of the Federal Rules of Civil Procedure. As the Appendix makes clear, Judge Shadur disallowed pleaders to dodge Rule 8 by 1) claiming that an allegation called for a legal conclusion, 2) claiming that documents speak for themselves; and 3) demanding strict proof. Judge Shadur also expected that affirmative defenses (Or ADs, as he called them) would be true affirmative defenses and that defense attorneys would support affirmative defenses with foundational or predicate facts.

The Appendix, now 20 years old, is living a rich life. Judges have cited Judge Shadur’s order and appendix 233 times. Litigants have cited the case 452 times in trial-court motions and filings as well as 14 times in appellate matters. Westlaw reports 52 citations in secondary sources and another 13 in a directory West calls “Practical Law.”

After presenting a mini-biography of Judge Shadur, the backstory of State Farm v. Riley, and a gloss on the Appendix, this article tracks Appendix use by federal judges throughout the United States. Specifically, the article focuses on legal conclusions, speaking documents, and affirmative defenses. The article organizes the cases by federal circuit. The organization should be interesting to academics and useful to attorneys preparing F.R.C.P. 12 motions to strike affirmative defenses, motions to deem allegations admitted, or motions for more definite statement.

The article first covers the citation of the Appendix first by Judge Shadur himself, next by Northern District of Illinois colleagues, then within the broader Seventh Circuit, and finally outside his Circuit. Last are the few citations in state courts finishing, though, with the epitome of Shadur’s Appendix, which was a rule change by the Arizona Supreme Court in 2018, the year of Shadur’s death. Arizona’s Rule 8 now aligns with Shadur’s Appendix.

This article meshes with the empirical analysis of my related article Frivolous Defenses. In that piece, I examine car-crash answers and complaints in the state courts of Colorado, where I live, teach, and have practiced law. For 298 lawsuits, I retrieved and read the complaints and corresponding 356 answers, which number more than 298 because a number of suits had multiple defendants. Frivolous Defenses examines the departures from Colorado’s Rule 8 using, among other things, Judge Shadur’s Appendix and analysis.

I welcome comment and suggestions by professors, attorneys, and judges concerning either of these articles.

Keywords: Civil procedure, F.R.C.P., Rule 8, Pleading, Litigation, Affirmative Defenses, Twiqbal, Iqbal, Twombly, Shadur, Illinois, Jewish lawyers, Affirmative Defenses, Speaks for itself, Legal Conclusions, Northern District of Illinois, Seventh Circuit, Rule 1, Rule 12

Suggested Citation

Russell, Thomas David, Disrupting Frivolous Defenses (March 15, 2021). Available at SSRN: https://ssrn.com/abstract=3805181 or http://dx.doi.org/10.2139/ssrn.3805181

Thomas David Russell (Contact Author)

University of Denver Sturm College of Law ( email )

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