You’ve been served with a complaint. What defense should you launch? A common approach is to argue that the plaintiff’s allegations are untrue. That’s an ordinary defense. “I didn’t do it.” But you can also argue that you should not have to pay damages even if the facts in the complaint are true. Kinda like a “So what?” That’s an affirmative defense.
In litigation, it pays to know the difference between an ordinary defense and an affirmative defense because they are each handled differently by the court. Let’s take a closer look at both.
“I didn’t do it.”
“I didn’t do it” is an ordinary defense. You assert it in your Answer filing.
An accused launches an ordinary defense when he answers a complaint. At that time, he must respond to each and every allegation in the complaint. When he denies an allegation, he is using an ordinary defense of “I didn’t do it” or “That’s not true.” This assertion not only denies liability, but it also denies the truth of the plaintiff’s statement. The defendant might even offer a negative defense to negate the key aspects of the plaintiff’s case. This type of defense argues that the plaintiff has failed to prove the liability of the defendant.
With an ordinary defense, the plaintiff has the burden of proof. In other words, to prevail, the plaintiff must prove by a preponderance of the evidence that the defendant is responsible for harm or injury to him. Under the standard of preponderance, the plaintiff must convince the judge that there is a greater than fifty-percent chance his claims are true.
The plaintiff does not have to prove anything in the complaint, but to avoid dismissal, all the elements or ingredients of the claim must be alleged and supported by facts. That’s all.
“The plaintiff is right, but I’m not liable.”
The plaintiff is right, but I’m not liable” is an affirmative defense. You assert it in your Affirmative Defenses filing.
An affirmative defense involves an implicit admission of the facts of the plaintiff’s complaint but avoids liability. In other words, even if the plaintiff’s allegations are true, a defendant can introduce evidence that negates civil liability for any harm done to the plaintiff.
While the plaintiff has the initial burden of proof, the defendant has the burden of proving his affirmative defenses. To prevail, the defendant must prove by a preponderance of the evidence that he is not responsible for harm or injury to the plaintiff. So, the elements of each affirmative defense must be present.
Sample Affirmative Defenses
Fraud. When you argue the plaintiff committed fraud, you must prove that the original circumstances that led to an agreement between yourself and the plaintiff were based on a false representation of the truth.
Self-defense. By arguing self-defense, you assert that you should not be held liable for the plaintiff’s injuries because you were acting to protect yourself.
Statute of limitations. A statute of limitations defense is a procedural defense that focuses on a specific window of time in which a lawsuit can be lawfully brought against you. You must successfully argue that the plaintiff cannot file a lawsuit against you because that window of time has closed.
There is a formality to the pleading process. The plaintiff goes first. If he cannot support his allegations with facts, then the case is over. Goodbye. Everybody goes home. However, the defendant should start brushing up on his response if the plaintiff meets a certain threshold or removes a few obstacles. The plaintiff can, for instance, defeat a motion to dismiss or introduce sound evidence to prove his case. At that point, the burden of proof switches to the defendant.
Ordinary defenses and affirmative defenses are not the same. Treating them as if they are can lead to an irrecoverable blunder. So, as part of your ideal strategy for winning, understand your position, and determine how to launch the right defense based on that position. Time doing this is time well spent.
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