Though rarely discussed, the elements of a claim or defense are the most important building blocks of a case. They’re the engine in a train, the heat in boiling water, the lemons in lemonade, the zip in a zipper! In litigation, elements are everything that make up a case. Ignore them at your peril.
Elements are those things that must be proven in order for you to state a cause of action as a plaintiff or assert defenses as a defendant. Elements are similar to ingredients. If you’re making lemonade, and you forget the lemons, it’s not lemonade. If you leave out water, you’ll just get a bunch of squished lemons–not lemonade. Same thing with elements. For your claim or defense to exist, every required element must be present. One cannot be missing.
Let’s look at a scenario to show how elements work.
Delilah received a loan from Angelic Bank and made monthly payments on it for two years. Sometimes she paid a week or two late. One day, she was unable to use her ATM card at Angelic. Her account had been frozen due to late payments on her loan. At that time, a furious Delilah made a payment to unfreeze the account. She then withdrew nearly all her remaining funds from the bank and stopped making payments on the loan. Angelic sued her for the $934 still owed and scheduled a hearing on a motion for summary judgment. The complaint alleged that Delilah made a contract with Angelic to borrow money. When Angelic loaned her the money based on that contract (promise), Delilah was obligated to repay the loan in installments. Delilah failed to pay the loan when due. As a result, Angelic suffered a financial loss.
Let’s breakdown the elements of the claim.
Elements of the Bank’s Claim
Angelic claimed (1) Delilah made a contract with it to borrow money; (2) The bank loaned her the money based on a contract (promise); (3) Delilah was obligated to repay the loan in installments; (4) Delilah failed to pay the loan when due, and (5) Angelic suffered a financial loss because of Delilah’s breach.
This is a properly pled case. Using the facts of the case, the bank stated all of the required elements. Its case cannot be dismissed for failure to state a claim.
Now, let’s look at the other side. Delilah believed it was illegal for the Bank to freeze her account without a default. She also felt that the bank couldn’t freeze her account for late payments after taking late payments for almost two years. She appeared in court and stated that it was illegal for the Bank to freeze her account. The bank won summary judgment against her. Delilah was ordered to pay $934 plus attorney’s fees of $1734.
What happened? Delilah may have had a defense. In fact, she may have had multiple defenses, but she did not know how to properly plead them. She didn’t determine the elements of her defenses and assert them. She thought simply telling her story was enough. It wasn’t.
Using Elements to Prove or Disprove a Claim
Litigation is a strategy game, and like any strategy game, you must think a step or two ahead before you move. From the beginning of a case to the end, your strategy should take into account elements of a claim, defense, or counterclaim.
When a lawsuit begins, a plaintiff works hard to make an airtight case, like the bank’s case in the scenario. That’s because a motion to dismiss is expected from the defendant. If each element is backed up by facts, the complaint can’t be easily dismissed. The plaintiff has done his job.
Just as the plaintiff works hard to build a case, the defendant works just as hard to tear it down. While the plaintiff must make sure all the elements of the case are present in their statement of facts, the defendant only needs one missing element. That is, to prove that the plaintiff’s claim is deficient, the defendant has to target only one of plaintiff’s elements. If she’s successful, the case can be dismissed, even if only temporarily. So, if you’re a defendant and you find an element missing from a claim, go after it with a motion to dismiss.
Using Elements in Affirmative Defenses
Whether she wins or loses on the motion to dismiss, the defendant can use the elements to protect herself in other ways. She seeks affirmative defenses that will shield her, or help her fight the claims. An affirmative defense is a legal reason why, even if the facts stated by the plaintiff are true, the defendant should not have to pay damages.
Affirmative defenses are pled just like claims in the complaint. The defendant would list each affirmative defense and match up any facts with elements of that defense. The defendant would number each affirmative defense and file them with her answer.
Now, it’s the plaintiff’s turn to tear down the defendant’s case. The plaintiff can go after the defendant’s affirmative defenses and counterclaim. The plaintiff needs to only knock out one element of an affirmative defense or counterclaim to defeat it.
Using Elements in Discovery
If the plaintiff and defendant survive challenges to their claims, affirmative defenses or counterclaims, they must next encounter discovery. Elements are just as critical to discovery as they are in the earlier stages of litigation.
The focus now is on proving claims, affirmative defenses, and counterclaims. For this reason, discovery is usually the longest part of litigation. The parties will send out discovery requests, or even depose witnesses, to gather their evidence.
What Happens After Evidence Collection?
Since the plaintiff has the burden of proof, he has an uphill battle. He must prove his assertions and disprove defendant’s affirmative defenses or counterclaims. In the end, 4 things could happen.
- The plaintiff finds factual evidence for his claims, and the defendant fails to find factual elements for her defenses. The Plaintiff wins.
- The plaintiff fails to find factual evidence for his claims. Defendant wins.
- The plaintiff finds factual evidence for his claims, and the defendant finds factual elements for her defenses. Defendant wins or there’s a split decision.
- The defendant finds factual evidence for his claims, and the plaintiff fails to find factual elements for his defenses. Defendant wins.
Finding Elements of a Claim or Defense
While there are many paid resources for finding elements of a claim or defense, the major free ways work fine. You can find elements of claims in a state or federal statute, code, or rule. You can find them in appellate cases. Or you can use jury instructions.
The best thing about jury instructions is that you’re able to pinpoint the elements by simply browsing. You’ll spend less time guessing. In the scenario, Delilah feels she has multiple affirmative defenses, but she can’t describe what they are. One defense she might be able to argue is ratification. That might be difficult to find in appellate cases, but maybe not so difficult in jury instructions. The National Center for State Courts has done some of the footwork for you if you want jury instructions. It has lists of instructions grouped by state. Keep in mind though that jury instructions also have gaps. All elements of every claim and defense may not be present.
Your case doesn’t have to end like Delilah’s did. Learn the elements of your claims or defenses and bring them with you. Match them up with the facts and make them dance.