TAMING THE HYDRA
March 7, 2011 § 2 Comments
Tom Freeland’s NMissCommentor blog yesterday had a post entitled Judge Primeaux and the Hydra, which referenced my THE BEST DEFENSE IS A BOILERPLATE post immediately below. It prompted a flurry of comments about pleading affirmative defenses. The comments are worth reading, but the graphic alone is worth following the link.
Looking at the comments on NMC, the humor fault line appears to run a jagged course with the circuit and federal practitioners on the “not funny” or “I don’t get it” side, and the lawyers with chancery experience on the other, humorous, side. Those with chancery experience recognize that most of those defenses could never have any applicability in a divorce case, no matter what, and raising them is as ludicrous as a defendant raising recrimination or condonation as a defense to an automobile accident complaint, or unclean hands in a slip and fall case. [A side question … if you did raise those classic chancery defenses in a circuit court case, reckon the lawyer on the other side would file for Rule 11 sanctions? My money says he/she would.]
I recognize that we in chancery inhabit a strange and alien world for those who seldom venture here. We deal with matters where the shades of gray have their own shades of gray, and in the absence of juries that are always in danger of being infected by legal poisons, we usually take a somewhat more relaxed approach. That ambiguity unsettles some, I know. [I was at a rules committee meeting last week discussing some chancery matters with another member and I heard a lawyer next to me say to another, “I’m glad I don’t practice in chancery court.”] In circuit court the rules are the rules. Period. In chancery, the rules are the rules until they run up against the best interest of a child or ward. And without juries the rules of evidence can sometimes be like the speed limit in Italy — merely a suggestion.
As for the absurd divorce defenses, we chancery denizens here on the eastern edge of Mississippi civilization have had a good laugh about them over the past few months, and the perpetrators have good-naturedly endured the ribbing about them. No pleadings were ever in danger of being dismissed. I never really put anyone to a hearing for those ridiculous pleadings.
Tame the hydra and she will be your friend.
The Better Chancery Practice Blog 
Judge Primeaux, the previous post is now assigned reading for my Pretrial Practice class at MCSOL. The books I assigned and the caution I gave in class about asserting, er, “creative” defenses don’t sum it up nearly as well as you did. Thanks.
Glad to be of service, prof. If you ever have anything you’d like to contribute, or something you’d like me to address, let me know.