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socrateaser, Lawyer
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Experience:  Retired (mostly)
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Can I assert an affirmative defense of qualified privilege

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Can I assert an affirmative defense of qualified privilege in a summary judgment motion for defamation?

I (defendant) initially had a lawyer who withdrew when I confronted him about not bringing up privilege in his motion to dismiss, among other things he said he would do but did not. I've been pro se since and just filed a summary judgment motion. In Plaintiff's response he said I have waived my right to privilege since it was not listed as an affirmative defense in the answer--I have my initial lawyer to thank for that.

In our initial consult, I told the lawyer 2 specific things: 1. My statements were all true; 2. I only made them to my daughters to protect my granddaughters from Plaintiff and thought they were privileged. I trusted the guy to do the right thing at least initially.

He did not assert either truth or privilege, which is what my summary judgment motion is about. Not being a lawyer, I am only now finding out that my initial lawyer should have done that, but did not. He did "reserve the right to assert affirmative defenses" which as I understand it means nothing.

I'm preparing a response to his response now. Am I screwed? Can I amend the answer, move for a mistrial, or anything? What's the best way to handle it?

What exactly does the plaintiff allege was your defamatory statement?
Customer: replied 3 years ago.

I found child porn in the web browser cache of his login on the family computer. He also photographed my oldest granddaughters genitalia when she was born, which is child porn in Ohio.

Okay, thanks.

In Douglas Elec. Corp. v. Grace, 70 Ohio App. 3d 7 (1990), the Ohio Court of Appeals held that both truth and qualified privilege must be pleaded as an affirmative defense, or they are waived by the defendant. Consequently, the plaintiff is entitled to summary judgment, if your defense is either truth or some qualified privilege concerning the statements involved.

No competent lawyer would fail to plead these affirmative defenses in defending a defamation action. In my view, failure to do so is malpractice. Consequently, if you lose this case, you have a lawsuit against your former attorney -- and you can complain to the Ohio Board of Commissioners on Grievances and Discipline. See below.


And, for a legal malpractice lawyer referral, see this link.


You have had a very unfortunate break. I hope my assistance will enable you to shift the damages away from yourself.


Best wishes.

Customer: replied 3 years ago.

He did not file the summary judgment motion, I did. In his response, he said I waived the defense.


You mean there is no legal remedy to correct a situation like this before trial?

Sigh...somehow I always end up with the customer when, after he or she has asked numerous questions and received one favorable answer after another, the scope of inquiry, narrows to the point when the answer to the customer's question suddenly causes everyone to realize that they've been wasting the customer's time dealing with the irrelevancies in the margins of the case, and since no one else will touch the question with the proverbial 10' pole, I end up delivering the bad news -- at which point, the customer is furious with me, even though had I found the customer's original inquiry, I probably would have looked closer at the problem and saved the customer days, weeks or even months of wasted effort.

Anyway, the answer is that there is no escape, if the judge is competent (he/she may not be -- happens all the time). Were I suddenly thrown into the case to represent you at this point, I would probably argue that the affirmative defense should be permitted, and that you should be permitted the opportunity to amend your original complaint, because otherwise a manifest injustice will permit the truth to fail in the face of a procedural defect caused by prior counsel's failure to competently plead the original answer in the case.

In other words, I would try to throw your former attorney under the bus, and simultaneously appeal to the judge's sense of equity -- because I don't see that you have a "legal" argument to proffer.


Note: I don't know for certain that your former lawyer really deserves a malpractice suit or discipline by the Board of Commissioners. I'm simply responding to your allegations as if they are true. From my vantage point, this is all entirely hypothetical -- because I don't know you or anyone else involved.


Hope this helps.

Customer: replied 3 years ago.



I am not rating based on how much I like what you have to say. I have a 24 page ethics complaint ready to fire off about this guy already. This pleading thing threw me because I hadn't looked for errors in the very first document he filed...until now. I didn't realize that I had to offer my defense before even knowing what he had in discovery. Plaintiff didn't even offer up a third party until he replied to this motion. Which means I could not have known it was my own daughter until yesterday to plead privilege as a defense. My complaint with the initial lawyer was for not using privilege to eliminate the evidence.


And I thought truth was the point of law, so why would I have to specifically plead it?


I'll try your hail marry. Who knows.



I've heard many incredible pleadings. Sometimes they work. Nothing to lose at this point.

Best wishes.
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Customer: replied 3 years ago.

What would the motion be? Leave to amend the answer? Or do I just put it in my response to his response to my sjm?

At this point, as the other party has already responded to the motion, you could put it into your reply to the plaintiff's response, and then file a motion for leave to amend along with your reply.

It's an unusual circumstance -- there really isn't any good procedure to follow. This really is a hail mary.

Hope this helps.