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View Diary: What the hell is THIS?! [Updated] (226 comments)

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  •  Folks Are Overreacting to Boilerplate (6+ / 0-)

    It's boilerplate.  Used a billion times a day in defense of any lawsuit in which someone is alleged to be responsible for injuries.

    A lot of pleading is boilerplate.  The defense as articulated above is the standard boilerplate language that bad lawyers include in raising affirmative defenses all the time. The reason is that if you don't raise every affirmative defense initially, you've arguably waived it for trial.  There are about 25 possible affirmative defenses, and lazy/bad lawyers usually include all of them in an answer without remembering that you're not supposed to raise an affirmative defense unless you actually have investigated whether there are facts to support it.

    Which is why as soon as the district got wind of it, it backpedaled. Because they know the facts and know that they don't support it in this context.

    So bad lawyers, not a bad school district, are almost certainly to blame here.  

    Folks running around here, including the diarist, acting as if the school district purposefully said "she's at fault", are barking up the wrong tree.  Just chalk this one up to what I am willing to bet cash it is: the district's lawyers churning out as broad an answer as humanly possible without regard to the optics of raising the defense in this particular context.

    •  No, the district only bothered with their fake (4+ / 0-)

      "apology" because of the risk of public outrage.  Do you really think they would have done anything had this not gone public?

      You have watched Faux News, now lose 2d10 SAN.

      by Throw The Bums Out on Thu Nov 29, 2012 at 09:01:11 AM PST

      [ Parent ]

      •  Yes (5+ / 0-)
        Recommended by:
        Keninoakland, Ice Blue, 1180, Alden, stellaluna

        They would have done something -- dropped the defense at trial.  Any lawyer can confirm that.  You can't try a defense if you don't have evidence to support it, but you can't discovery on a possible defense if you don't plead it.  It's a catch-22.

        Frankly, the district did not need to apologize - merely simply point out just what I (and at least 2 other lawyers responding to this diary) have pointed out, about it being boilerplate lawyering that they have asked their lawyer to undo.  Instead, we've got all this "outrage" for all the wrong reasons - that's the point of my comment.  This type of pleading happens every single time an answer is filed to a personal injury lawsuit by someone other than a particularly judicious lawyer, without regard to the actual facts.  The client (in this case the district) has every right to rely upon what their lawyers do without questioning it, unless and until something comes to the client's attention as it did just now.

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