An affirmative defense states that you’re not liable for a claim even when all elements of a claim are true. Like claims, affirmative defenses must be pled, often with your answer to a complaint. Also like claims, your affirmative defenses can be struck or dismissed if they’re not pled correctly.
There are many sources to find affirmative defenses that could apply to your case. But once you’ve found one, how do you plead it?
Courtroom5’s civil litigation platform contains the tools and training needed to help you plead your affirmative defenses correctly. After setting up your case, the Civil Litigation 101 course is the first stop on the road to managing your case. In particular, the lesson on handling the Answer stage explains affirmative defenses in depth.
Next, you’ll need to find and understand the elements of your chosen affirmative defense. The Laws tool comes in handy, with statutes, searchable case law, and where available, the jury instructions in your state.
When you’ve located your elements, you’ll want to analyze them using the Counts tool. Each element must be supported by factual allegations you intend to prove at trial, and the Counts tool helps you determine whether you’ve asserted the right facts to support your defense.
The Documents tool contains an Answer & Affirmative Defenses template to help construct your pleading. There’s also a sample to illustrate your completed filing and share language from an example case. The template walks you step by step through entering each of your defenses and supporting facts.
One procedure that may arise after you’ve filed your affirmative defenses is the plaintiff’s “motion to strike” your defenses. If successful, it could deprive you of all options other than proving the plaintiff’s factual allegations wrong. You may be able to do that, but it’s the weakest possible position for a defendant.
The Introduction to Civil Procedure course includes a lesson on procedures at the Answer stage of your case. After understanding these procedures, you’ll be in a position to oppose your plaintiff’s motion to strike and protect your affirmative defenses.
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