The Oklahoma Bar Journal August 2022

C ivil P rocedure

Defending a Lawsuit With Your Best Foot Forward

By Melissa East

A S A DEFENSE LAWYER, you will often face a client – whether it’s a current client or a new client – who has been served with a petition and discovered they have been sued. When the client presents that petition to you, they may be stressed, they may be angry or they may be in denial. What is certain is the client will want the lawsuit to go away. Having a case dis missed on the merits from the outset can be daunting for defense lawyers, and when faced with responding to a petition, you must perform your due diligence before taking that next step.

is explicitly qualified. 4 By filing a qualified or special appearance, it reserved the right to later assert additional defenses. 5 Oklahoma defense attorneys could therefore file a “special entry of appearance” to not only extend their time to respond but to also preserve their right to assert affirmative defenses. This tactic has often been used by defense attorneys. The ability to use this tactic was, however, recently affected by the Oklahoma Supreme Court ruling in McBee v. Shanahan Home Design . 6 In McBee , the defendants filed special appearances citing Young v. Walton and requested additional time to respond without waiving any affir mative defenses. 7 In its ruling, the Oklahoma Supreme Court recog nized that in 2002, the language of Okla. Stat. Tit. 12 §2012(A) changed, and the use of the word “appear ance” was removed and replaced by the term “reservation of time.” 8 This arguably overturned Young v. Walton and removed the ability to file a special entry of appearance to

Review the allegations in the petition and meet with the client to determine the facts and under stand their side of the story. While you may be tempted to simply answer the allegations and move into discovery to determine the plaintiff’s side of the story, moving too quickly could lead to a missed opportunity. It is important to closely analyze who the parties are, the allegations and the basis for the claims before taking that next step to ensure you put your best foot forward for the client. The question ultimately becomes: What can be done? What follows in this article is a summary of the many strate gic moves and procedural tactics available when responding to a petition and an analysis of the law that justifies each strategic move or procedural tactic.

SPECIAL ENTRY OF APPEARANCE AND RESERVATION OF ADDITIONAL TIME TO PLEAD When you receive a petition from a client, you may determine that you cannot perform your due diligence and submit a timely response and then find yourself needing additional time. What can be done to get that additional time? Under the Oklahoma Pleading Code, a defendant has 20 days from the date of service to serve an answer. 1 In Young v. Walton , 2 the Oklahoma Supreme Court held that the terms of Okla. Stat. Tit. 12, §2012(A) provide a defendant with the ability to file an appearance within the 20 days and extend the period to respond, but in doing so, the appearance operates as a waiver of certain defenses. 3 The Oklahoma Supreme Court in Young stated, however, that this waiver of defenses only applied to a general appearance, or an unspecified appearance, and it did not apply to an appearance that

22 | AUGUST 2022

THE OKLAHOMA BAR JOURNAL