concurring in part and concurring in the result:
I join in Judge Terry’s opinion except for that portion which states the basis for its holding that it was an abuse of discretion1 to deny the District of Columbia’s motion to amend its answer to include the defense of statute of limitation to Count II of appellee’s complaint: “assault and battery — excessive force.” As to Part II, I concur in the result of Judge Terry’s opinion, but write separately because my appraisal of the controlling considerations is somewhat different from Judge Terry’s.
Addressing the issue of abuse of discretion, I begin by setting out the most relevant historical and procedural facts:
1. On September 10, 1988, Metropolitan Police Officers severely beat Tinker and injured him while arresting him for carrying a dangerous weapon (knife with 4" blade) and a toy (imitation) pistol.
2. On February 27,1989, Tinker’s counsel filed a letter for the purpose of serving the District of Columbia timely notice of the claim involved here.
3. On June 19, 1991, almost three years after the incident and more than two years after his notice to the District, Tinker filed his civil complaint. The second count of the complaint alleged that a police officer assaulted him through the use of excessive force. Significantly, the first count alleged essentially that the District’s negligence in failing properly to train and supervise its officers proximately caused a particular officer’s use of “excessive force” and the officer’s failure to “follow normal and accepted police practices and procedures.” The third count charged the District with negligence in the medical care and treatment afforded Tinker at D.C. General Hospital and at a penal facility.
4. On August 23, 1991, the District filed an answer to the complaint but overlooked the defense of limitations with respect to the assault count.
5. On January 24, 1992, the parties entered a stipulation that “the issue of excessive force is within the ken of the jury and will not be presented through expert testimony” by either party.
6. On April 13, 1992, the parties filed a joint motion to extend the deadline for discovery from March 27 to May 15, 1992, and the deadline for dispositive motions to May 29, 1992, noting that those matters could be accomplished before the scheduled mediation date of June 11,1992. The motion was promptly granted on April 17, 1992.
7. Also on April 13, 1992, the District filed a motion for leave to file an amended answer raising the defense of limitations. Plaintiff opposed the motion.
8. On May 31, 1992, the District filed a motion to dismiss Count II (assault and battery — excessive force) or, alternatively, for partial summary judgment as to that count, based on limitations.
9. On September 10, the trial judge entered a memorandum order denying the District’s motion to amend its answer to assert limitations, and at the same time denying on the merits the motion to dismiss or for partial summary judgment on limitation grounds.
10. A few days later, on September 15, 1992, the court entered a pretrial order allowing certain discovery to be completed by November 30,1992, and setting trial for March 22, 1993. The order noted that plaintiff had withdrawn Count I (negligent training, etc.) as of September 14, 1992.
*6711. On May 25 through 27,1993, the case was tried before Judge Webber. At the time of trial, plaintiff withdrew Count III (negligent medical treatment) with prejudice. The jury returned a verdict in the amount of $500,000 against the District on Count II (assault and battery — excessive force).
I have set forth the procedural and historical facts in some detail because the trial court’s exercise of discretion must be evaluated in light of the particular context in which it was made, and a ruling like that reviewed here must necessarily be very fact-based. In this case the trial court stated that three factors were important to its exercise of discretion. “First,” the trial court stated, “there was indeed prejudice to the plaintiff.” In this connection, the trial court referred to our opinion in Whitener v. Washington Metro. Area Transit Auth., 505 A.2d 457 (D.C.1986) where we stated the legal principle that is central to this part of our discussion, viz.:
“we hold ... that when there is no substantial prejudice to the plaintiff, a defendant is not barred by [Super.Ct.Civ.] Rule 8(e) from raising the statute of limitations in a pre-trial motion, even though the statute has not been raised [seven months before] in the defendant’s answer to the complaint.” Id. at 460.
It is permissible (indeed, obligatory) that this court go beneath the surface of the trial court’s conclusion of prejudice and examine its foundations. See Buder v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 644 F.2d 690, 694 (8th Cir.1981). The two bases the trial court assigned to support its finding of prejudice here were that “all parties have gone through the entire discovery period,” and “time and expense has been committed by the plaintiff.”
As for discovery, the chronology set forth above makes it clear that on the day the motion to amend was filed, April 13,1992, the parties jointly asked the court to extend discovery to May 15th, a request promptly granted by the trial court. This meant as a practical matter that five weeks were left for discovery at the time the motion was filed. Five months elapsed from the time of the filing of the motion to amend until the ruling of the court on September 10th. The pretrial order entered a few days later on September 15, 1992, allowed specified discovery to be completed by November 30, 1992, and set trial for March 22, 1993. For reasons which do not appear of record, the trial date was deferred until late May of that year.
This part of the chronology demonstrates that there was ample time for the plaintiff to conduct discovery on Count I and Count III prior to the actual close of discovery on November 30,1992. A supplemental pretrial could have been completed in orderly fashion and the trial conducted within the original tight time schedule set by the Superior Court, which called for trial in March or, as it turned out, in May of 1993.
As for the commitment of time and expense by the plaintiff, it is true that the parties had completed most of the ordinary discovery that would relate to the assault count by the time the District filed the motion to amend, although some specific items were left open. But what is crucially important is that the negligence count, which the majority here does not hold to have been time-barred when filed, embraced within it an allegation that a police officer had used excessive force in the manner in which he handled the plaintiff. The plaintiffs allegations of negligent hiring, training and supervision would have come to naught unless the plaintiff could establish that the manner in which a particular police officer had treated plaintiff constituted excessive and unwarranted force. In order to establish Count I, plaintiff would have had to establish essentially the same facts required to establish an assault count, and more — the “more” relating to the allegations of inadequate hiring, training, and supervision. It is also important that nothing new by way of a discovery period or expense would have been required by the granting of the motion to amend that was not already contemplated by the plaintiffs original complaint.
In Buder, supra, the United States Court of Appeals for the Eighth Circuit reversed a trial judge’s denial of a plaintiffs request for leave to amend the complaint, brought two and a half years after the original filing of *68the complaint. In doing so, the court made observations relevant here. One of them is that it is well settled that delay alone is not a sufficient reason for denying leave to amend.2 Another is that an appellate court should look behind a trial court’s generalized statement of prejudice. The Buder court, when it did so, observed that the previously unassert-ed claim was based upon facts that were already known or available to all parties. The court also observed that to the extent that additional discovery might be necessary, it was well within the trial court’s power to alleviate the burden on the opposing party by granting a continuance or compensating for any loss occasioned by delay. The court thought it relevant that there was no indication that the opposing parties were then less able to conduct any necessary additional discovery than they would have been if the amendment had been filed earlier. Finally, the Buder court observed that in a court’s weighing of prejudice to the nonmoving party, that prejudice must be balanced against the hardship to the moving party if the motion is denied. See also Scott v. Crescent Tool Co., 306 F.Supp. 884, 886 (N.D.Ga.1969). In light of the considerations discussed in Buder and the other factors stated above, the trial court’s finding of prejudice cannot be sustained.
The second reason for denial of the motion assigned by the trial court was that the length of the delay, seven months, was “truly inexcusable.” Our dissenting colleague recasts this basis for the trial court’s action in the more attractive form of concern for the administration of justice. Judge Schwelb, dissenting, post at 73-74. But the District’s conduct here, while far from exemplary, should not give rise to any such concern.
It appears to me, first, that it goes too far to say that a delay of this length (over seven months) is “inexcusable,” and this is especially so, as I will explain, for the particular reason the court assigned. Rather, the inquiry here is whether the court should depart from the generally liberal policy of Super.Ct.Civ.R. 15(e) regarding amendments of pleadings in light of the particular circumstances of the case and the requirement of Super.Ct.Civ.R. 8(c) that the defense of limitations be affirmatively pleaded, and normally raised promptly. The trial court indicated that it deemed the delay particularly inexcusable since the District is accustomed to defending large numbers of complaints by incarcerated prisoners. To the extent that this suggests that the District is to be held to a higher standard of pleading in this regard than litigants generally, I cannot agree. Certainly, there are countervailing factors, also not of record here, concerning the workload and funding levels of the Office of Corporation Counsel that might tend in a general way to offset any argument that the District is to be held to a higher standard due to institutional experience. The appropriate approach, I think, is to hold the District to the same standard as any other litigant without any assumptions about institutional experience or degrees of staffing or supervision.
I agree with our dissenting colleague that evaluation of the conduct of defendant’s counsel here should take into account and balance a variety of factors. Some basic principles applicable here are set forth in Justice Goldberg’s opinion in Foman v. Davis, 371 U.S. 178, 83 S.Ct. 227, 9 L.Ed.2d 222 (1962):
It is too late in the day and entirely contrary to the spirit of the Federal Rules of Civil Procedure for decisions on the merits to be avoided on the basis of such mere technicalities^] “The Federal Rules reject the approach that pleading is a game of skill in which one misstep by counsel may be decisive to the outcome and accept the principle that the purpose of pleading is to facilitate a proper decision on the merits.”
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Rule 15(a) declares that leave to amend “shall be freely given when justice so requires”; this mandate is to be heeded.... In the absence of any apparent or declared reason — such as undue delay, bad faith or dilatory motive on the part of the movant, *69repeated failure to cure deficiencies by amendments previously allowed, undue prejudice to the opposing party by virtue of allowance of the amendment, futility of amendment, etc. — the leave sought should, as the rules require, be “freely given.”
Id. at 181-82, 83 S.Ct. at 230 (citations omitted).
Applying these considerations, I am unable to agree with the dissent on the impact of the requested amendment on the administration of justice. Certainly, it cannot be argued that the assertion of limitations would have significantly increased the cost of litigation. The excessive force allegations of Count II had to be proven in order to make out a case of negligent hiring, training and supervision under Count I. Nor would judicial effectiveness in administering crowded calendars have been compromised because the remaining discovery could have been accomplished within the time the court permitted for other discovery even while denying the amendment, and the trial could have been held within the trial court’s original time frame.
This case stands at the opposite end of the spectrum from Strauss v. Douglas Aircraft Co., 404 F.2d 1152, 1158 (2d Cir.1968). There, by delaying its assertion of the statute of limitations in the United States District Court for the Southern District of New York, the defendant strung the plaintiff along until it was too late for the plaintiff to bring the same action in another jurisdiction where it would not have been time barred. In this case, the seven-month delay in raising the statute of limitations had no such effect on the plaintiff who, moreover, was left with the other two counts arising out of the same series of events.
The third ground for denial set forth by the trial court was that the defendant had impliedly waived the limitations defense by joining in a stipulation that expert testimony would not be needed on the excessive force issue. It is obviously true that when the District entered this stipulation (less than three months before it attempted to assert limitations) the Office of Corporation Counsel still had not awakened to the availability of limitations as a defense. But it is stretching it to call this unfortunate temporary oblivion a waiver. The trial court’s specific rationale was that “having focused upon how precisely both parties would proceed to present their evidence on the excessive force issue, there is utterly no way to explain how the District could have ‘inadvertently’ not realized the time sequence of all events involving the assault and the filing of this law suit.” This does not follow, as the stipulation dealt with the mechanics of trial preparation and trial itself rather than the various time periods that had elapsed between the date of the incident and the filing of the law suit.
We are obviously dealing with what Justice Goldberg referred to in Foman, supra, as a “misstep by counsel” rather than a waiver. Even if plaintiffs counsel began to rely on some implication that limitations would not be pled, there was no resulting step he took during the eleven weeks that intervened between the filing of the stipulation and the motion to amend that could not readily have been retraced in a short time and with no prejudice. Specified discovery remained open for another seven months after the motion to amend was filed, and the trial date was set for some eleven months after the motion to amend was filed, with the actual trial following another two months later. It is, moreover, safe to say that plaintiffs counsel had been considering, even before the time the complaint was filed, the avenues of discovery he would wish to follow on Counts I and III and the nature of the expert witnesses he might retain.
It was incumbent upon the Corporation Counsel, as the guardian of the public fisc, to advance the defense of limitations. While the defense of limitations may not be a substantive defense, it is one created by statute and adopted for strong public policy reasons. “Statutes of limitations are not simply technicalities. On the contrary, they have long been respected as fundamental to a well-ordered judicial system.” Board of Regents v. Tomanio, 446 U.S. 478, 487, 100 S.Ct. 1790, 1796, 64 L.Ed.2d 440 (1980). See Bond v. Serano, 566 A.2d 47, 50 (D.C.1989) (Farrell, J., concurring). Those reasons are so strongly presumed to exist after the specified time has passed that a defendant need not specify reasons for raising a limitations de*70fense in a particular case, but may simply assert it. The Corporation Counsel’s unfortunate misstep here should not deprive the District of this defense, and thus prejudice the District with the imposition of a $500,000 judgment. The plaintiffs counsel knew all along of the limitations issue and stated in opposition to the motion to amend that it was “patently obvious” from the pleadings that more than a year had passed from the time of the incident until the time of the filing of the action. Plaintiff had contemplated preparation and presentation of Counts I and III from the time the action was filed. In light of the particular circumstances of this case, I concur with Judge Terry that the denial of the motion to amend must be reversed, and the case remanded for further proceedings.3
. Although I agree that there was an abuse of discretion, I emphasize a point we have made before: "While it is perhaps superfluous, we nevertheless note that abuse of discretion is a phrase which sounds worse than it really is.... The term does not imply ... any reflection on the judge.” United States v. Walker, 772 F.2d 1172, 1176 n. 9 (5th Cir.1985) (quoted in King v. United States, 550 A.2d 348, 352 n. 3 (D.C.1988)).
. See Eagle Wine & Liquor Co. v. Silverberg Elec. Co., 402 A.2d 31, 35 (D.C.1979) ("refusals to grant amendments on the grounds of 'lateness' or ‘delay’ alone may properly be reversed”).
. I note in particular my agreement with Judge Terry that we should exercise our authority under D.C.Code § 17-306 (1989) to vacate the dismissal of Counts I and III, reinstate those counts, and remand for further proceedings on them. It is my view that basic fairness requires that the parties be placed back in the positions in which they found themselves at the time that the trial court erroneously denied the motion to amend. If they should not be, the combination of the District’s lateness in asserting limitations, the trial court's erroneous denial of leave to assert limitations, and plaintiff's predictable subsequent litigation strategy would have placed the District in a far better position than it would have been in had it asserted limitations in timely fashion— and will have left the plaintiff without his judgment for $500,000.