When you’re sued and want to avoid a default judgment, one of the first things you must do is respond. You cando this in several ways. You can respond with a pleading that essentially says, “Yo! I’m here, and I don’t agree with everything you say.” That’s an answer or demurrer. Another way to respond is through an answer and affirmative defenses. “You might be right, but I’m not liable.” You can also respond by motion. “You can’t sue me because you done screwed everything up.” That’s the motion to dismiss, a badass in its own rights. But here, we’re concerned with the answer and affirmative defenses.
What Does an Answer and Affirmative Defenses Do?
In a civil action, the answer and affirmative defenses is a double-barreled document. Typically filed as two pleadings in one, the answer and affirmative defenses does a few important things. It acknowledges the court’s jurisdiction. Once you file an answer and affirmative defenses, it’s difficult to come back later and question the court’s jurisdiction in a motion to dismiss.
Second, the answer and affirmative defenses avoid a default judgment against the defendant. Rather, it puts the defendant’s objections to the claim on the record. Third, affirmative defenses make it more difficult for a plaintiff to get a summary judgment. Affirmative defenses by definition create material facts that are in dispute. A summary judgment is successful when there are no disputed material facts. Once a defendant has a set of affirmative defenses, a plaintiff would have to strike each and every one of them in order to get a summary judgment in most courts.
Points to Keep in Mind
- Read the complaint line by line with your answer and defenses in mind.
- Begin drafting your answer and affirmative defenses as soon as possible. If you can’t do that, at least take notes.
- If you filed a motion to dismiss, don’t file your answer and affirmative defenses until a judge orders you to do so. This gives you time to get it right.
- Answer each allegation (usually a line) in the complaint with “Admit”, “Deny” or “Neither admit nor deny.”
- Know the elements of the defenses you’re asserting and allege facts that support each element.
- State affirmative defense with enough specificity to give the plaintiff notice of the defense being asserted.
- List as many affirmative defenses as you can reasonably allege.
- Show facts for each element of each affirmative defense. You don’t have to prove anything or cite laws just yet.
- When you feel the need to modify your answer and affirmative defenses, do so. You usually must ask for leave to do that. That is, you may have to ask the judge for permission to amend.
- If you need more time to write your answer and affirmative defenses, ask the judge for an extension of time to answer.
A Sample Answer and Affirmative Defenses
DEFENDANT’S ANSWER AND AFFIRMATIVE DEFENSES
Introduction: COMES NOW, Jorge Diaz (hereinafter “Defendant”) and files his answer and affirmative defenses as follows:
Paragraph 1. Deny.
Paragraph 2. Deny.
Paragraph 3. Deny.
Paragraph 4. Deny.
Paragraph 5. Admit.
Paragraph 6. Deny. Defendant denies that Plaintiff is entitled to enforce payment.
Paragraph 7. Admit.
Paragraph 8. Deny. Defendant denies that an unavoidable accident occurred.
Paragraph 9. Deny. Defendant denies that conditions precedent to the filing of this action have been performed or have occurred.
Paragraph 10. Deny.
Paragraph 11. Neither Admit nor Deny.
Paragraph 12. Deny.
Paragraph 13. Neither Admit nor Deny.
Paragraph 14. Deny. The allegations in Paragraph 14 do not pertain to Defendant.
(Continue until you’ve responded to all allegations)
1st Affirmative Defense–Breach of Contract
Defendant’s failure, if any, to perform obligations under the contract between the parties is the result of Plaintiff’s prior breach. Plaintiff stopped work on the roof in the middle of construction. He left the site and didn’t return for three weeks. Doing so relieved Defendant of any obligation to pay for repairs done due to the roof being exposed.
2nd Affirmative Defense–Assumption of Risk
The plaintiff knew of a hole in the roof, a dangerous condition, before he entered into the contract, and voluntarily exposed himself to it.
3rd Affirmative Defense–Laches
The plaintiff filed this claim on December 20, 2015, four years and six days after the incident occurred. This robbed defendant of an opportunity to put together a good defense because much has happened since then. The house in question has been sold to a third party, the roof repaired, and the defendant has moved to another state. There was no good reason for the plaintiff’s delay in filing this action.
4th Affirmative Defense–Waiver
By entering into the contract with knowledge that a hole was in the roof, the plaintiff waived his right to sue.
5th Affirmative Defense–Failure of Conditions Precedent
By not initialing the “compliance” clause in the contract as required, the plaintiff has failed to meet a conditions precedent to the completion of the contract.
(List all affirmative defenses that apply.)
Depending on your strategy, your affirmative defenses can keep you and your opponent busy for a long time, especially if you use them to develop your discovery requests. An answer and a good list of affirmative defenses can get you a good settlement or a favorable judgment.
For more about affirmative defenses, see 31 Affirmative Defenses And How To Assert Them31 Affirmative Defenses And How To Assert Them and Estoppel, Waiver, And Ratification. Three Affirmative Defenses For When The Plaintiff Was Wrong Too. Download a sample answer and affirmative defenses here.