Imagine being in a fight, without the ability to punch, kick, scratch or claw back to protect yourself!
What chance would you have?
If you’re on the defense in a lawsuit, you need to defend affirmatively!
Stop taking punches and start delivering them!
When a plaintiff sues a defendant, the plaintiff files a paper called a Complaint1 in which he states the basis for his lawsuit by affirmatively alleging ultimate facts he claims he can prove (facts he must prove to win his case).
The plaintiff’s Complaint is an affirmative action … i.e., it has a punch!
If the defendant cannot successfully move the court to have the case dismissed or stricken, he must file an Answer to the plaintiff’s Complaint – however, an answer by itself (i.e., without affirmative defenses) has no punch.
An answer, by itself, merely “answers” the complaint one paragraph at a time.
An answer, by itself, either admits, denies, or states defendant has insufficient knowledge to respond to what the complaint alleges.
An answer, by itself, provides no mechanism for a defendant to affirmatively plead his case.
An answer, by itself, is non-aggressive.
An answer, by itself, provides the defendant with no mechanism to affirmatively state the defendant’s position in response to the complaint.
Therefore, the defendant who merely “answers” the plaintiff’s complaint, without also filing affirmative defenses along with his answer, straps himself with a legal burden that can kill his case even before he’s begun to fight.
It’s like being in fight and only being able to be in a defensive posture.
Affirmative defenses should always be filed along with defendant’s answer.
1 In some cases the complaint may be called a petition.
2 In many cases, the defendant can avoid being required to file an answer by moving the court to dismiss the complaint, to strike all or portions of the complaint, or to require the plaintiff to file an amended complaint that eliminates vague or ambiguous language.
3 You should also understand that, in addition to Affirmative Defenses, you must file with your answer any counterclaims, cross-claims, or third-party complaints you may have that are based on what you know at the time you file the answer, or you waive your right to file them later. If you later discover evidence that gives you the basis for a counterclaim, cross-claim, or third-party complaint (i.e., after you file your answer) you may move the court to allow you to file these additional pleadings, but only if you did not know you had a basis for filing them when you filed your answer.
Affirmative defenses give defendants an affirmative position from which to argue why defendant is not responsible for the damages sought by the plaintiff and what the defendant intends to prove so the court can see the flaws in the plaintiff’s case.
Without affirmative defenses, the defendant is always on the defense.
Not a good way to win the fight!
You should use an affirmative defenses every time the filing of an answer is required.2
Affirmative defenses should always be filed with the answer, because without them the defendant cannot state his own case.
The answer, by itself, does nothing but respond to each of the allegations made by the plaintiff in the complaint.3
By also filing affirmative defenses along with his answer, the defendant can assert affirmatively the grounds (if he has any) for his arguments why the court should deny the plaintiff’s claims.
If the defendant can then prove the essential factual grounds for any affirmative defense he has are true (by the greater weight of admissible evidence) he wins.
Without affirmative defenses the defendant can only win by proving the factual grounds alleged in the plaintiff’s complaint are false.
It’s always harder to prove a negative.
Whether you have one of these defenses depends, of course, on the facts of your case.
All cases are different to some degree.
The facts are seldom exactly the same.
If you are sued, be absolutely certain to file all the affirmative defenses you have.
This is how defendants win.
DISCLAIMER:The author is not an attorney and is not rendering legal ,financial, or other professional services. The information contained on this web site is the author opinion based on his personal experience. If you need legal advice, consult a competent attorney.