Judge Milton I. Shadur was a disrupter of frivolous defenses. In 2018, Judge Shadur died at the age of ninety-three after thirty-seven 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). The Appendix presented his expectations regarding how defense lawyers should answer according to Rule 8. 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 would be true affirmative defenses, and that defense attorneys would support affirmative defenses with foundational or predicate facts. After presenting a minibiography of Judge Shadur, the backstory of State Farm v. Riley, and a gloss on the Appendix, this Article tracks the use of the Appendix by judges--mostly federal judges but some state judges--throughout the United States. The Article covers the citation of the Appendix by Judge Shadur himself, next by Northern District of Illinois colleagues, then within the broader Seventh Circuit, and next among the other federal circuits. There are a few citations in state courts. The Article concludes 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. Specifically, the Article focuses on speaking documents, legal conclusions, and affirmative defenses. The organization by federal circuit should be interesting to academics and useful to attorneys preparing FRCP 12 motions to deem allegations admitted, motions for a more definite statement, or motions to strike affirmative defenses.
Disrupting Frivolous Defenses,
Loy. U. Chi. L. J.
Available at: https://lawecommons.luc.edu/luclj/vol52/iss4/3