Litigation: Raising Applicable Defenses

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Typically the Defendant need not raise specific legal defenses to the Complaint or state specific legal theories upon which he bases his case.  However, there are a number of Affirmative Defenses which can operate as either a complete or a partial bar to the Plaintiff's recovery, if successful.  Some of these Affirmative Defenses are set forth by the Rules.  Others may be contained in relevant case law or statutes.  These defenses are named Affirmative Defenses because they must be specifically raised by the Defendant in the Answer.  If they are not affirmatively pled in the Answer, these defenses are waived.  Waiver of a defense means that it is lost and may not be used again during the litigation. 

One of these defenses is known as the Statute of Limitations.  The Statute of Limitations is a statutory provision that limits the time in which a person may bring suit for a loss suffered or an injury sustained.  For instance, the statute says that if a party to a contract breaches a the contract by failing to perform as agreed, the other party to the contract must file suit within Three (3) years of the breach if she wishes to recover.  Obviously, if a Defendant who has a meritorious Statute of Limitations defense fails to raise it, it is lost and the Defendant is now at a major disadvantage.  There are a number of other Affirmative Defenses which can act as a complete bar, such as contributory negligence (the injured party's own negligence contributed to the injury), accord and satisfaction (we had a debt but we settled it for a lesser amount), the statute of frauds (we did not have a signed contract to sell the house), and failure of consideration (we both signed the contract, but your failure to fulfill your promise relieves me of my obligation to pay you).  Some of these defenses are relatively straightforward, but others can be more complex and harder to understand.  For this reason, if often makes sense to seek the advice of an attorney when responding to the Complaint.

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  1. Stephen William Gumpl's avatar
    Stephen William Gumpl
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    There is also the situation in contracts that fired up Plaintiff's attorneys fail to attach the instrument in dispute. Most courts will not allow a case to proceed without the demonstration of the controversy, to wit: the contract. If the contract is not attached to the complaint, seek a More Definite Statement from the Plaintiff by way of order of the court. This is done previous to the Answer, or how would one be able to formulate a proper Answer absent the contract and all the requirements thereunder. It takes a lot, but never forget to cross-sue. SteveG

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