When someone is accused of wrongdoing they have the opportunity to admit they were at fault and accept the consequences. So, for example, the police officer pulls you over for going 30 in a 20 MPH school zone. You can say: “Yes, I did that, and I am sorry. I am ready to accept the consequences.”
But if you feel that you are being wrongly accused, there are three basic responses available to you.
You can say NO: “NO. I didn’t do that. I’m not guilty.”
Or you can say YES BUT: “YES, I did what you say, BUT there was a good reason. Let me explain.”
Or you can say SO WHAT?: “Yes, I did exactly what you said that I did. SO WHAT?”
We think these three responses apply across the board, from children in school, to poor drivers, to defendants in lawsuits.
Of course, lawyers have special labels to describe these three defenses. The “NO” defense is what we call a “general denial.” Your lawyer files a response to the lawsuit that flat out denies every allegation the plaintiff has made. This puts the burden of proof where it belongs—on the plaintiff who is bringing the lawsuit. You say I was driving 30 in the 20 MPH zone? I deny it! Prove it!!
The “YES BUT” defense is referred to as an “affirmative defense.” It admits the truth of the basic allegation, but then offers a worthy excuse. For example, “YES, I admit that I was driving 30 MPH in the school zone, BUT the blinking light was not blinking, and besides that my mother was in the emergency room, and I was rushing to be by her side.”
The “SO WHAT” defense is usually accompanied by a Motion for Summary Judgment. It acknowledges the truth of the allegation, and then contends that there was no violation of law. “Yes, I was driving 30 MPH. Yes, the light was blinking. But it was a Sunday afternoon and there was no school. No school—no school zone. The speed limit was actually 35. No violation of the law.”
Most good lawyers will offer all three defenses. “My client didn’t do it, Your Honor. But even if he did, he had a good reason for what he did. And even if it was not such a good reason, what he did is not a violation of law—so toss this case out!”
It’s kind of like playing defense in football. Your football team has three lines of defense: the line, the linebackers, and the secondary. If your linemen stop the play at the line of scrimmage, there is no damage to your team’s cause. If, however, the linebackers stop the play after a gain of 7 yards, you have paid a price. And if the runner runs free for 25 yards before the safety makes the tackle, you have paid a heavy price.
Cases that are dismissed early on are usually dismissed due to the SO WHAT defense. This is accomplished by a Motion to Dismiss early on, arguing that there is simply no basis for legal liability here. For the football analogy—this is a sack or a stop by the line.
If your defense is a YES BUT defense, your litigation costs will be higher. You have to marshal facts and evidence to show the court that there is an “affirmative defense.”
And if that doesn’t work, you are down to a factual struggle over what actually happened. This is when we have expensive jury trials that are long and costly in every sense, even if you “win.” It’s like you prevented the touchdown, but you gave up a lot of yardage.
I know that football season is over, but I still think it’s a pretty good analogy.
DAWG BONE: DEFENDING A LAWSUIT IS LIKE DEFENDING A FOOTBALL PLAY…..SORT OF.