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.
While the job of a motion is to persuade a judge to rule in your favor on a single issue, the purpose of writing a pleading is to make allegations of fact clear to both the court and the opposing party. Following these writing tips, will help you make those points more effectively.
When you’re sued and you want to avoid a default judgment, one of the first things you must do is respond. You can respond in a motion or pleading that essentially says, “Yo! I’m here, and I don’t agree with everything you say,” or “You might be right, but I’m not liable,” or “You can’t sue me because you done screwed everything up.” The first is an answer. The second is an answer and affirmative defenses. The third is a motion to dismiss. Here, we’re concerned with the second, the answer and affirmative defense.
Equitable estoppel, waiver, and ratification all stop a person from reneging on a contract or taking legal action that conflicts with previous conduct or behavior. The three affirmative defenses all prevent someone from going back on their word.
Litigation documents are not the first thing the average person thinks about when they hear the term “legal documents”. Wills, deeds, powers of attorney, tax forms, come to mind first. These are legal documents, but they’re not for the purposes of litigation.
Litigation documents are less formulaic and more intimidating than these. Their purpose is to move a lawsuit along. In that sense, they’re more powerful than documents written on pre-printed forms.
Knowing the elements of an affirmative defense and having the ability to properly assert that defense takes you a long way to managing your case strategically. As a pro se litigant, it also helps you gain much respect (but not much love) from your opponent.
A party seeking equity must come to court with “clean hands”. Makes sense, right? You go to court seeking justice for a wrong someone’s done to you. But when you’ve done something foul yourself, don’t ask a court to help you gain from it.
Analyze your case to create an effective litigation strategy. It’s a process of finding the elements of each claim and defense, and testing them against available facts and evidence. Bonus: It’s not rocket science.