Affirmative Defenses
Fight Back !
The Best Defense is Offense!
Each of the affirmative defenses you learn in this class has “essential fact elements” (just as complaints and criminal charges do). Plaintiffs win by proving the essential fact elements of at least one cause of action in their complaint. Prosecutors win by proving ALL essential fact elements of a criminal charge. Defendants win by proving all essential fact elements of at least one affirmative defense.
Most lawyers I defeated in my many years of professional practice had no idea how affirmative defenses work, but you will … once you finish this class.
You will know how to defend yourself affirmatively!
An answer by itself has no teeth! It’s just an answer. It is defense, not offense. It does nothing but respond to the initial pleading.
But an answer with affirmative defenses say, “No! I have my own story to tell. I win by proving my own facts.”
Defendants who merely answer without alleging affirmative defenses are like boxers with both hands tied behind their back. They can bob and weave to dodge punches, but they can’t hit back!
Affirmative defenses give defendants a way to hit back.
Affirmative defenses should always be filed when defendant files an Answer to a complaint or criminal charge.
This is POWER!
Pleading Defenses
Suppose you were served with the following civil complaint:
IN THE THIRTEENTH JUDICIAL CIRCUIT COURT
IN AND FOR SUNSHINE COUNTY, FLORIDA
PETER PLAINTIFF,
Plaintiff,
v.
DANNY DEFENDANT,
Defendant.
____________/
Case No. 2011-1234
COMPLAINT
PLAINTIFF Peter
Plaintiff sues Danny Defendant for money damages and states:
JURISDICTIONAL ALLEGATIONS
1. This is an action for money damages for breach of contract in excess of $15,000 exclusive of court costs and attorneys fees.
2. At all times material to this lawsuit, Plaintiff was a resident of Sunshine County, Florida.
3. At all times material to this lawsuit, Danny Defendant was a resident of Sunshine County.
4. All acts necessary to the bringing of this lawsuit occurred or accrued in Sunshine County.
5. This Court has jurisdiction.
GENERAL FACTUAL ALLEGATIONS
6. On 17 May 2004 Plaintiff and Defendant entered into a written contract whereby Defendant promised to spray Plaintiff’s 5-acre strawberry farm with insecticide every week for 8 weeks while Plaintiff was away on vacation in Hawaii.
7. A copy of the written contract is attached as Exhibit 1.
8. Plaintiff paid Defendant $3,000 at the time of execution of the contract in settlement of all of the Plaintiff’s obligations under the contract.
9. During Plaintiff’s absence, Defendant failed to spray the strawberries at any time, breaching the contract.
10. As a direct result, plaintiff’s strawberries valued in excess of $15,000 were destroyed by insects, and Plaintiff proximately suffered substantial money damages.
WHEREFORE Peter Plaintiff demands judgment for money damages against Danny Defendant, together with such other and further relief as the Court may deem reasonable and just under the circumstances, and further plaintiff demands jury trial on all issues so triable.
Peter Plaintiff, Plaintiff
Your Answer might look like the following.
IN THE THIRTEENTH JUDICIAL CIRCUIT COURT
IN AND FOR SUNSHINE COUNTY, FLORIDA
PETER PLAINTIFF,
Plaintiff,
v.
DANNY DEFENDANT,
Defendant.
____________/
Case No. 2011-1234
ANSWER AND AFFIRMATIVE DEFENSE
DEFENDANT Danny
Defendant answers the complaint and states:
1. Denied.
2. Without knowledge.
3. Admitted.
4. Without knowledge.
5. Admitted for jurisdictional purposes only.
6. Admitted.
7. Admitted.
8. Denied.
9. Denied.
10. Without knowledge.
WHEREFORE Danny Defendant demands judgment against plaintiff, together with such other and further relief as the Court may deem reasonable and just under the circumstances.
AFFIRMATIVE DEFENSES
- Failure of Consideration
- Plaintiff did not pay defendant $3000 as alleged.
- Defendant has not received any money whatever from Plaintiff.
- Plaintiff lacks grounds to enforce the alleged contract.
- Estoppel
- Plaintiff promised to provide insecticide to spray the strawberries.
- Plaintiff failed and refused to provide insecticide.
- Defendant made repeated demands for Plaintiff to provide the insecticide.
- Plaintiff is estopped to complain.
- Lack of Subject Matter Jurisdiction
- Plaintiff seeks to recover $3,000 for consequential damages.
- The amount sought is below the $15,000 jurisdictional threshold of this circuit court.
- This case should be filed in Small Claims Court.
- This Circuit Court lacks jurisdiction to hear cases where the amount in controversy is less than $15,000.
WHEREFORE Defendant moves this Honorable Court to dismiss the Complaint and award Defendant such other and further damages as the Court may deem reasonable and just under the circumstances, including but not limited to all Defendant’s court costs and fees.
Danny Defendant, Defendant
The first part of this answer fails to state any facts that might provide a defensive argument. The answer alone has no “teeth”. It doesn’t bite back!
Denials are not affirmative. They merely deny. They assert nothing. They demand nothing.
The affirmative defenses allege facts, and if the defendant can prove those facts he wins.
Both parties now have facts to prove.
As Sherlock Holmes would say, “The game is afoot!”
Defendant is not stuck trying to prove the negative of plaintiff’s complaint. Proving negatives is virtually impossible. Instead, he affirmatively alleges facts he hopes to prove and, thereby, put plaintiff on defense!
It’s that simple!
Dangerous Defenses
Ignore the “too-good-to-be-true” defenses offered by internet amateurs and misguided anti-government mongers!
Like yesterday’s bars, barbershops, and beauty salons the internet is a breeding ground for hateful rumors, tall tales, and baseless opinions. Social media sites are filled with dumb ideas with loopholes you could throw a cat through.
They may “sound” legal with fancy words and formal formats, but beware!
The most dangerous legal advice sounds sure-fire, promising miracles with little or no effort. Most are hare-brained slippery-slope schemes that seem legitimate but are offered by amateur lawyers and self-styled “patriots” angry at “Big Brother” or website charlatans out to make a fast buck.
What you need must be recognized by the courts. Anything else is just stupid!
Here are just a few daffy defenses:
These are only a few of the incredibly idiotic but definitely dangerous ideas believed by real people that I’ve helped these past many years since I started my online course in 1997 … crazy defenses and wacky tactics promoted by self-styled gurus with social media sites designed to deceive in the unsuspecting.
You’re too smart for them.
You signed up for my course.
Use the following affirmative defenses that the courts will honor.
Attention
You do not need to study all of the rest of this class.
The following is a list of different affirmative defenses with simplified explanations.
Study at least a few of them until you “get the idea” about how each stands or falls on its essential elements and how to plead those elements.
Then you can come back to this class and use the CONTENTS button on the right to “look up” whatever affirmative defense that may apply to your legal battle.
When you’ve studied enough of these to “get the idea”, move on to my class on DISCOVERY where you will learn about your five (5) tools to get evidence into the record after the pleadings are closed.
Here is a list of clickable links to the Affirmative Defenses below:
Absolute Immunity
Certain people enjoy “absolute immunity”.
This is a rock-solid defense if you are one of them.
They are immune if they acted within the scope of their lawful authority.
If you try to sue a Sheriff’s deputy for making you miss an important meeting by stopping you for speeding, your case will be dismissed, because the deputy was acting within the scope of his lawful authority.
* Defenses marked with an asterisk should be raised by preliminary motion before filing Answer. All such motions should be set for hearing and argued in court as soon as possible. If a motion fails, defendant should file these as Affirmative Defenses with his Answer.
If the same deputy yanks your car door open, grabs your left ankle with an iron grip, and drags you across a parking lot with your head banging against the pavement, your lawsuit will defeat his immunity, if you prove he acted outside the scope of his lawful authority.
Individuals rarely have “absolute immunity”. The law provides it for public servants like judges, law enforcement, county commissioners, and a few others.
So long as an officer or government employee acts lawfully within the scope of his or her delegated authority, this affirmative defense protects them absolutely from lawsuits brought by disgruntled people disappointed with their “official acts”.
The question is whether and to what extent an officer or employee was “doing his job” or acting “on his own”, an issue sometimes surrounded by murky fog.
When it’s crystal clear a defendant acted beyond the scope of his delegated authority, he may be sued like any other individual, stripped of the cloak and badge of office.
Don’t simply list the “name” of your affirmative defenses, as many foolish lawyers do (not having the benefit of this course). Do as you do when filing a complaint. Separate the defenses as you do with counts in a complaint and allege all facts necessary to establish each essential element of every defense. This is the powerful way to defend!
If a judge acts within the law, he has absolute immunity from a lawsuit you might file to challenge his ruling, no matter how much you may disagree with his decisions. You may file an appeal, but you will get nowhere going after the judge.
On the other hand, if a judge intentionally violates the law (and you can prove it) the judge is outside the protection of this immunity and can be sued.
Elements
Accord and Satisfaction
An accord arises where two parties agree to settle an obligation by substituting some other performance.
The strange little fellow with camera and sunglasses promises to sell his dancing bull to a circus owner for $200.
The circus owner ponies up $200, and the little guy pockets the cash.
After delivery of the bull, the circus owner discovers the big brown fellow can only juggle bowling pins and cannot really dance.
If the little guy offers the circus owner his camera in place of the clumsy-footed bull, and the circus owner accepts, the parties have reached an accord, and the circus owner can no longer sue over the clumsy bull.
The original agreement is satisfied by the substituted performance.
If the circus owner demands the strange little man’s sunglasses and camera, and the strange little man refuses to part with his shades but continues to offer the camera, there is neither accord nor satisfaction, and the original obligation remains.
The little guy cannot deliver his camera or his sunglasses to satisfy his end of the deal unless the circus owner agrees to accept the substitute.
If a creditor accepts a debtor’s substitute promise, and the debtor faithfully performs the substitute, the creditor loses his right to sue, because there’s been an accord and satisfaction discharging the original debt.
If a debtor is sued by a creditor after reaching an accord and performing substitute satisfaction, proving the essential elements of this affirmative defense makes the creditor’s claim disappear.
Elements
Comments
For an effective defense, the substitute performance must fully discharge the pre-existing obligation.
Partial satisfaction is no defense.
Act of God
This defense works if natural disaster (e.g., tornado, hurricane, earthquake, etc.) makes performance impossible.
Acts of God are beyond human control.
If plaintiff pays defendant to deliver a can of paint on a certain date, and a volcano erupts with lava flowing across the highway so defendant cannot deliver on time, this affirmative defense (also called force majeure) protects defendant from plaintiff’s claim of loss due to delay … but it does not cancel defendant’s remaining obligation to deliver the paint or refund plaintiff’s money.
The defense is available only when non-performance is beyond defendant’s reasonable ability to cure.
It is not reasonable to require defendant to put on asbestos shoes and walk across glowing molten rock to make his delivery on time!
Reasonableness introduces a grey area of fact-finding and evidence-weighing that goes to the heart of every case in court.
Elements
Alibi
If you are accused of doing something in Chicago, when you were actually in Miami, this affirmative defense applies.
A complaint for battery, for example, requires plaintiff to allege and prove defendant made physical contact with plaintiff. If plaintiff was in Orlando at the time, and defendant was in Paris, defendant wins with this affirmative defense. You can’t batter someone on the other side of the planet (unless you use a remote-control robot or hire a thug to do the job for you).
Elements
Arbitration and Award
If a dispute is submitted to arbitration that results in an award, this defense prevents the losing party from following up with a lawsuit based on the same issues.
Arbitration judgments are usually final. Losers cannot drag arbitration winners into court for another bite at the apple … unless the loser can prove some material fraud in the arbitration proceedings.
Giant companies often put small-print provisions in their contracts requiring disgruntled customers to arbitrate rather than suing in court. If a customer injured by a poisonous spider in his motel room tries to sue, the court will require him to arbitrate … a process with far fewer safeguards favoring the giant companies more often than their injured customers.
A failed arbitration, obviously, does not give rise to this defense.
Don’t simply list the “names” of your affirmative defenses, as many foolish lawyers do (not having the benefit of my course). Allege the fact elements of your defenses just as you do with counts in a complaint. This is how you defend offensively!
If a dispute is properly submitted for arbitration before an authorized arbitrator, and an arbitration award is properly reached without fraud or undue influence, the dispute is settled. If the disgruntled loser files a lawsuit to relitigate the same or issues, his case will be dismissed if defendant files and proves the essential elements of this defense.
Elements
Assumption of Risk
Some activities are so inherently dangerous, courts allow a defense against plaintiffs who voluntarily participate and suffer foreseeable injuries.
Reasonable people assume the risk of sky-diving, so the courts refuse to award damages to people who suffer foreseeable injuries from that inherently dangerous sport.
Many states have enacted laws defining what activities are inherently dangerous.
If jump school staff pack a chute negligently and injury results, this defense disappears, because the cause of injury was not “foreseeable”.
Bungee-jumping, kick-boxing, and horseback-riding all involve foreseeable injury, so lawsuits for foreseeable injuries cannot succeed if this defense is alleged and its essential facts proven.
If the risk is hidden or unknown, the defense does not apply.
Plaintiff need not sign a paper acknowledging risk (though, of course, this creates a stronger defense for potential defendants). If a court can infer from facts presented that plaintiff “knew or should have known” the severity of foreseeable risk and proceeded to participate without regard for the risk, the requirements for this defense are met.
Assumption of risk may not be a complete bar to plaintiff’s recovery. The case may turn on whether and to what degree plaintiff assumed the entire risk and whether and to what degree the defendant is partially responsible.
See also comparative negligence and contributory negligence in this class.
Elements
Coercion
Coercion exists where one person “forces” another to do something under circumstances that allow no other reasonable option.
If one is coerced into signing a contract, for example, he has this defense to an action brought against him for breach of that contract. It is as if the contract never was made, since contracts are only binding if knowingly agreed to.
The issue before the court in such cases is whether and to what extent the coercion was irresistible, e.g., whether the party allegedly coerced had some reasonably alternative choices.
For example, if Suzy says to Bill, “I won’t go to the prom with you unless you buy me dinner,” that’s not coercion. Bill isn’t being forced.
If Guido points a loaded .38 revolver to your head and says, “Sign the contract or die,” and later sues you for breach of contract, this defense will protect you.
The coercion need not be a threat to your health and safety, if it can be shown that you were put in a circumstance from which you had no reasonable alternative other than to comply with the demand.
Elements
Note the word “reasonable”.
An old man coerced at gunpoint could disarm his assailant by picking up a chair and beating his tormentor senseless, but our courts refuse to require “unreasonable”
alternatives.
Coercion must be real, imminent, and reasonably unavoidable.
Comments
If a party claims he was coerced into signing a contract during a long-distance telephone call from someone threatening to punch him in the nose, the court will deny this defense. The threat was not imminent.
If plaintiff can show defendant acted on his own (i.e., the act did not result from coercion) the defense fails.
The defense of coercion is similar to the cause of action known as undue influence (see my Causes of Action class) that arises when the free will of an individual is overcome by the unreasonable influence of another.
See below the discussion on the Duress defense.
Comparative Negligence
Plaintiff is sometimes responsible for his own damages.
He may be completely responsible or only partially responsible.
If partially responsible, he cannot recover that portion of his damages that he caused himself.
He is comparatively negligent and defendant has this affirmative defense.
Courts use a balancing test to determine who is most negligent and apportions damages accordingly.
The doctrine of comparative negligence is not recognized in all states. Consult your local statutes and appellate court decisions that control your trial judge.
If plaintiff runs a stop sign and is hit by defendant’s truck traveling 120 mph, both parties are responsible for plaintiff’s injuries.
Plaintiff for running the stop sign.
Defendant for speeding.
Under the common law doctrine of “contributory negligence” [Please see also contributory negligence below.] a plaintiff whose own wrong was the cause of his injury was barred from recovering, even if defendant was partially negligent.
A fellow who injures his head when his wagon hits a log in the road might sue the person who caused the log to be in the way.
Another doctrine of common law says each of us has a responsibility to “look where we’re going”.
So, if plaintiff wasn’t looking where he was going (and defendant can prove this) then under the common law doctrine of “contributory negligence” the negligent plaintiff could not recover, even if defendant was himself negligent.
However, under comparative negligence doctrine (adopted by many states in abrogation of common law, i.e., in spite of common law) the courts apply a “but for” analysis and apportion damages accordingly.
But for plaintiff’s own negligence, the injury would never have occurred.
However, but for defendant’s negligence, the injury also would not have occurred.
The court decides the degree of the parties’ respective negligence and applies this factor as a percentage to determine the amount of harm caused by defendant alone and, consequently, the amount of money (if any) to be awarded to plaintiff.
Consider the plaintiff who wasn’t wearing a seat belt at the time of an accident. Using the “but for” test, the court can conclude that but for his failure to wear a seat belt, his injuries would not have been so severe as those for which he brought his lawsuit. Or had it not been for his failure to use the seat belt he would have suffered no injuries at all. The amount of his recovery will be reduced (under the comparative negligence doctrine) by that part of the injury resulting from his own negligence.
In many jurisdictions, violation of any statutory proscription that causes or tends to contribute to a plaintiff’s injury (such as failure to wear a seat belt) raises this defense and may be an absolute bar to recovery.
If defendant raises this affirmative defense, he puts the issue of the plaintiff’s own negligence squarely before the court. The court must then decide how much or to what degree plaintiff’s negligence caused plaintiff’s injury and reduce the award – or eliminate it entirely.
If both are equally at fault, plaintiff’s recovery will be reduced by one-half.
See also contributory negligence below.
Elements
Consent
This defense applies when a plaintiff attempts to sue for damages resulting from an act to which he knowingly and intelligently consented.
For example, one cannot succeed with a lawsuit for conversion of a bicycle, if plaintiff gave defendant permission to use the bicycle. The claim known as conversion requires that defendant take possession of plaintiff’s property without permission.
If a patient submits to surgery after reading and signing a consent form clearly explaining the risks inherent in the operation, the patient cannot prevail with a lawsuit for damages that result from those specified risks if the surgeon files this affirmative defense. If the patient can prove he was in a drug-induced state or otherwise suffering from some debilitation that impaired his understanding what he signed, of course, no knowingly intelligent consent was given.
If you allow someone to paint your house pink then later decide to sue because you don’t like pink, the defense of consent will protect the painter.
A drunk or drugged individual lacks legal capacity to consent, as does a child or person suffering from mental defect, but the rest of us are bound by the consequence of things we consent to.
Elements
Contributory Negligence
If plaintiff negligently contributes to an act that causes him damages, defendant has this
defense.
Defendant cannot be entirely liable for damages plaintiff was partially responsible for causing.
The doctrine derives from common law, but is abrogated in many jurisdictions (replaced by statute and/or case law). Many jurisdictions prefer comparative negligence (see above) where both parties are partially responsible for the injuries complained of and damages are apportioned between the parties accordingly.
For example, a newspaper-reading jay-walker may voluntarily expose himself to being run over by a passing vehicle. If he looked both ways before stepping off the curb, he’d have no injury at all. His own negligence contributes to his injury.
Courts apply a “but for” analysis. If it is shown that but for plaintiff’s own act the injury would not have occurred, this defense results in plaintiff’s getting nothing! This defense is an absolute bar to recovering damages.
Suppose defendant’s brakes were bad, and he failed to have his vehicle inspected when a required inspection was due. Suppose that but for his bad brakes he could have stopped in time to avoid hitting the negligent jay-walker.
How does this defense apply when both parties are partially responsible?
In earlier rulings, if but for plaintiff’s act there would be no injury, even if defendant contributed in some way (like not having his brakes inspected) this defense was an absolute bar to plaintiff’s recovery. But this harsh rule has been replaced with a “comparative negligence” doctrine that apportions injury between the parties when both contributed to the injury. [See comparative negligence above.]
In some jurisdictions, these defenses overlap.
As with all complaints and defenses in this course, always consult current statutes and appellate court decisions before relying on legal doctrines subject to occasional revision.
The better rule is for contributory negligence to act as an absolute bar only where plaintiff was the sole cause of his own injury.
When defendant’s acts in no way contribute to plaintiff’s injury, or plaintiff had within his power the ability to avoid injury through his own reasonable efforts, this defense should be an absolute bar to plaintiff’s recovery.
On the other hand, if plaintiff’s exercise of reasonable care could not have prevented
plaintiff’s injury, this defense does not bar his recovery.
Where defendant’s act contributes even partially to plaintiff’s injuries, courts in nearly all
jurisdictions apply comparative negligence, resulting in apportionment of fault (and therefore apportionment of money damages). This, of course, is measured in accordance with the degree to which plaintiff’s acts directly or indirectly caused his own injury.
Elements
Discharge in Bankruptcy
If a creditor files a lawsuit to collect a debt that’s been discharged in bankruptcy, defendant need only file this defense, attaching a certified copy of the bankruptcy petition and order of discharge.
Failure to file a certified copy of the bankruptcy petition and the bankruptcy court’s discharge order, however, falls short of the mark.
A common bankruptcy error is not listing all the debtor’s creditors in the petition. Unless a creditor is listed in the petition, the debt will not be discharged.
The bankruptcy petition must list the creditor from whom protection was sought, and the order of discharge must show that bankruptcy protection was granted.
Only debts listed in the petition are discharged.
Elements
Duress
Duress is like coercion.
Both are defenses where defendant’s alleged wrongful acts resulted from threat or force.
Physical force suffices, e.g., a gun to the head.
Threat of harm to one’s family suffices.
Threat of damage to one’s business or reputation suffices.
Imagined or impossible threats do not suffice.
Some courts recognize this defense when a person is so strapped financially that his freedom of choice is unjustly limited, i.e., he simply “can’t say no”. Such a defense, of course, is hard to establish, since the court can conclude there were reasonable alternatives. Judgment depends on a personal viewpoint, i.e., what it’s like to be completely broke.
Courts frown on this defense.
See the affirmative defense of coercion above.
Economic Loss Rule
The economic loss rule is a defense (in many jurisdictions) that prevents plaintiffs from double-dipping for damages when both negligence and breach of contract are claimed.
Know when this defense applies and when it does not.
If plaintiff filed a complaint for breach of contract and for negligence in performance of the contract, he would be seeking double damages for the same contract.
The economic loss rule defense prevents plaintiffs from collecting for both types of damages in the same lawsuit in certain situations.
A Florida strawberry farmer sued a chemical company when a batch of fertilizer turned out to be herbicide. The bags were mislabeled. The herbicide killed acres of strawberry plants. He included a count for breach of contract and another for negligence. Since the farmer contracted for fertilizer and received herbicide instead, he sued for breach of contract. Since negligent marking of the bags resulted in killing his plants, he also sued for negligence. He won on both counts. The economic loss rule did not apply.
Another farmer sued a tractor manufacturer for breach of contract and negligence when a faultily designed part on the tractor caused the tractor to fail. As a result the farmer couldn’t get his crops in on time and lost money. The bargained-for consideration was a tractor, not crops safely gathered into a barn. Only the tractor was damaged by defendant’s negligence, not the farmer’s crops (as was the case with the poisoned strawberries). The contract for a working tractor was breached by delivery of a faulty tractor, so the farmer won his breach of contract count. However, negligence in the tractor part did not proximately cause his crop damage. The farmer was not permitted to recover for negligence. To allow the farmer to recover for breach of contract and for negligence that damaged only the tractor would result in double-dipping.
The key to when the Economic Loss Rule defense may apply is when damage due to negligence results in damage to other property, i.e., property other than what was bargained for in the contract.
When negligently labeled “fertilizer” destroyed fields of strawberries, the farmer was awarded damages for breach of contract (he paid for fertilizer and got herbicide instead) AND for negligence (the value of his lost crop).
Contract and negligence causes may be combined if something other than the bargained-for thing is damaged by defendant’s negligence.
Estoppel
If a balloon operator leads a passenger to believe the fee for a balloon ride will be only $200, yet when the balloon sets down the operator demands $800 and sues when the passenger refuses to pay up, the defendant has this defense.
The balloon operator is estopped to deny what he originally said. Courts say he is “stuck” by his first act.
A party may estop himself by words or conduct.
Having set upon some particular course of action that leads another to reasonably believe a particular fact, that party may not later change his position if doing so would cause unjust damage to another.
Consider a grove owner who contracts with a truck driver to deliver grapefruit. Suppose the grove owner refuses to provide the truck driver with grapefruit to deliver. The grove owner cannot successfully sue the truck driver for loss of customers who didn’t get grapefruit when it was the grove owner, himself, who prevented delivery. He is estopped.
The truck driver must reasonably rely on the words or acts of the grove owner for this defense to work.
When these elements exist, the affirmative defense of estoppel will protect defendants from the consequence of relying on acts or words of the plaintiff who chooses to change his position by some fact contrary to what he presented at the start.
Estoppel is related to the affirmative defense of res judicata (the thing has been ruled upon) whereby parties are bound by previous court decisions when one of the parties
attempts to re-litigate, i.e., to take another bite at the same apple. The party wishing a second bite is estopped.
The affirmative defense of laches also stands on estoppel principles, since plaintiff is estopped to proceed to court after intentionally and unreasonably delaying his action in order to gain an advantage. (See defense of laches below.)
The estoppel defense acts in equity to protect one who relies on some set of facts communicated or demonstrated by acts or words of another.
Elements
Estoppel relates to facts present or past.
Promissory estoppel relates to future facts and applies when one person tries to withdraw or alter a promise made to another who justifiably relied on the initial promise to his detriment.
Comments
Even if there is no enforceable contract, our courts enforce promises to protect parties who detrimentally rely on the dishonesty of crooked promisors who knew or should have known the promised facts were false or likely to be altered.
This doctrine is sometimes also called “detrimental reliance”.
Failure of Consideration
This affirmative defense is useful in breach of contract cases where plaintiff claims defendant failed to uphold his end of a bargain.
Suppose you hire a fellow to mow your lawn every Tuesday while you’re away on vacation. You promise to pay $50 for each mowing (it’s a big lawn). You give him $200 up front (enough for 4 weeks of mowing) and leave for your long-awaited trip.
When you return three months later you discover weeds have taken over. The city has fined you $500 for not tending to your landscaping.
So, you sue the lawn guy for damages, including the $500 fine.
If defendant is on his legal toes, he’ll file the defense of “failure of consideration”. He will allege sufficient facts to establish the essential elements of the defense, including the fact that he mowed four times on successive Tuesdays, but you were gone longer than four weeks. He was only paid for four weeks.
A contract is only enforceable by plaintiff if plaintiff performs his part of the bargain.
Failure of consideration is fatal to the contract … and to the case.
Consideration may be money, services, or goods – anything bargained-for that goes to the heart of the agreement contemplated by both parties to a contract.
If one side fails to provide the consideration he promised, he cannot successfully sue for damages on the contract if defendant raises this defense and proves the essential facts.
Failure to Demand
In some jurisdictions, failure to demand may be an affirmative defense.
For example, the elements for breach of contract are
In those jurisdictions and causes of action where demand is required, failure to demand is fatal and gives the defendant this affirmative defense.
Another example is conversion, where defendant takes possession of property of plaintiff without lawful authority. In some jurisdictions the courts require the plaintiff to make formal demand for return of the thing taken before filing a lawsuit for conversion.
In such cases, if plaintiff has not made demand, the defendant has this affirmative defense.
Plaintiff’s failure to demand becomes a defense when defendant can show he lacked intent to breach the contract or to convert the property and would’ve promptly returned the property if plaintiff demanded its return.
The defense may also prevail if defendant can convince the court he mistakenly believed he had a lawful right to do as he did.
Very gray area. Check local statutes and appellate decisions that control your trial court before relying on this affirmative defense.
Failure to Join Indispensable Party*
No lawsuit should be permitted to go forward if someone with a vested interest in the outcome is not made a party and allowed to participate.
To proceed without affording that additional interested person an equal opportunity to argue for his or her individual interests isn’t fair.
If final judgment cannot be entered without affecting the interests of such an “indispensable party”, the outcome may be challenged as unjust.
In such cases, the indispensable party must be joined to the case.
The indispensable party may need to be added as codefendant or joined as a coplaintiff.
* Defenses marked with an asterisk should be raised by preliminary motion before filing Answer. All such motions should be set for hearing and argued in court as soon as possible. If a motion fails, defendant should file these as Affirmative Defenses with his Answer.
Not all “necessary” parties are “indispensable”.
To proceed to judgment without requiring all indispensable parties to be joined could result in injustice to the already-joined parties as well as those excluded.
Generally, courts will not dismiss a case simply because all potential plaintiffs have not joined in the fray. Instead they will order the indispensable parties to be joined, if possible.
Courts wish to avoid unnecessary repeat litigation. Failure to join indispensable parties will likely result in just that … repeat litigation, more costs to the court, more delay for the parties who’ve already tried their case.
There are times, however, when all potential plaintiffs are not available or are unascertainable, in which case it would be unjust to deny existing plaintiffs their day in court simply because others are not available to participate.
Similarly, there are times when all potential defendants are not available (including those whose interests will be affected by the outcome, even though they are not included in the fray). Again, it would be unjust to deny plaintiffs their day in court against the defendants they can round up, simply because some defendants cannot be found.
A case may involve title to real property. The interests of two or more owners may be affected by the outcome. Yet, perhaps only one owner has been joined to the case. Since the outcome will affect the rights of all owners not yet joined to the case, courts are unable to enter a truly final judgment without denying due process to the absent owners. In such cases, this defense will prevent the case from proceeding or, at least, delay the proceedings until all possible efforts are made to locate the missing parties.
The issue should be raised first by motion to dismiss before filing an answer and, failing that, should be filed with the answer as an affirmative defense.
In some cases, if it is discovered the absent party is, in fact, indispensable for a complete adjudication of the issues, the court may be prohibited from entering final judgment, or its orders may be subject to reversal or remand on appeal.
Failure to Post Bond
Some cases require that a bond be posted to protect some interest pending outcome of the proceedings.
Therefore, in such proceedings, failure to post the required bond forms the basis for an affirmative defense.
The requirement of a bond is typical in actions seeking an injunction, because enforcing an injunction before all the facts are in could foreseeably cause injury to an innocent party.
The bond required to protect a potentially innocent defendant is calculated by considering the value of foreseeable damages that might injure defendant, if plaintiff’s case fails.
Bonds are typically tendered to and held by the clerk of court pending the outcome of such cases.
The court may require plaintiff to post a bond simply to protect defendant from foreseeable injury resulting from an unjust interruption of defendant’s life.
Failure to post a bond, where justice demands, gives rise to this defense.
Failure to State Cause of Action *
Every cause of action (or claim on which the court can grant relief) must be alleged by stating facts that establish all essential elements of the cause of action.
It’s like listing ingredients for a recipe.
If any ingredient is missing, the recipe is not complete. The court cannot “cook the dish”.
* Defenses marked with an asterisk should be raised by preliminary motion before filing Answer. All such motions should be set for hearing and argued in court as soon as possible. If a motion fails, defendant should file these as Affirmative Defenses with his Answer.
Failure to state sufficient facts to establish all essential elements of a cause of action is a defense that first should be asserted by a motion to dismiss “for failure to state a cause of action”.
In an action for breach of contract, plaintiff must allege sufficient facts to establish at least three essential elements:
Suppose plaintiff files a lawsuit for breach of contract but fails to allege sufficient facts to establish the third element, i.e., that he suffered damages as a proximate result of the breach. Merely stating plaintiff suffered “damages” is not enough. Plaintiff must allege “ultimate facts” that establish all essential elements. For example, he might allege his strawberry fields were destroyed or that he lost business to a competitor, adding additional facts as necessary to fully explain how the loss was a proximate result of the breach.
Failure to allege all facts necessary to establish all essential elements exposes the plaintiff to a motion to dismiss for failure to state a cause of action.
Then, if the court does not dismiss plaintiff’s case upon defendant’s motion, then defendant should file this affirmative defense with his answer to preserve the issue in his favor.
Merely stating, “The parties entered into a contract, the defendant breached the contract, and plaintiff suffered damages,” is not enough.
Fraud
Fraud as an affirmative defense must be pled with specificity.
It’s not enough to merely allege the other party is guilty of fraud.
One must spell out fraudulent details with specificity so the court and all parties know what material misrepresentation was made that gives rise to the alleged fraud.
In other words, the defensive pleading must be precisely accurate and complete.
Fraud as an affirmative defense depends upon showing plaintiff intentionally misrepresented a material fact that goes to the heart of the claim on which he brings his suit.
The fact plaintiff is a fraud, or that plaintiff misrepresented facts other than those related to the lawsuit before the court, has no relation to this defense.
For fraud to support an affirmative defense, circumstances and material facts of the fraud must be pled with specificity.
In some jurisdictions, if the requisite allegations are not set out in full, the defense is treated as waived.
General allegations, vague references, or conclusions of fraud fall short.
Fraud must be pleaded with particularity.
Suppose plaintiff obtained a contract by making fraudulent claims. Suppose he was selling a house he knew was infested with termites, with a roof that leaked during even the lightest rain, and a furnace that simply didn’t work at all. Further suppose he misrepresented these things to a buyer who, reasonably relying on the false statements of seller, entered the deal and used his life savings to make a down payment on that house.
Months later, buyer is late on a payment and seller sues.
Buyer has the defense of fraud.
However, again, if defendant/buyer merely lists “fraud” as an affirmative defense, without alleging in detail the facts necessary to establish the elements of fraud, his defense is likely to fail.
It’s not enough to say, “Seller made material misstatements of fact about the house.” The court will require, if the defense is to stand, that defendant’s allegations be specific.
Defendant must allege all facts necessary to specify fraud, e.g., quoting what seller said and how seller’s representations were false and known to be false at the time.
General allegations are insufficient for two reasons.
A defendant who fails to allege sufficient facts in defense is like a plaintiff who fails to allege sufficient facts in his complaint.
What facts are the respective parties required to prove?
Further, even if the defense is allowed, if defendant fails to allege the facts he needs to prove to win, the playing field can get very muddy very quickly as the plaintiff tries to hide the ball.
Defendants with this defense may also elect to file a counterclaim based on fraud as a cause of action … which, again, they must plead with particularity.
Futile Act
No court process can lawfully enforce the performance of a futile act.
If requiring or prohibiting an action will have no reasonably foreseeable benefit, the court is without jurisdiction to lawfully enter an order.
It’s like trying to get one gear to turn another when the cogs are not meshed. No twisting on one will ever transfer power to the other.
Even if a court order compelled the turning of one gear, the order would be an absolute waste of time and, therefore, contrary to the fair administration of justice and appealable.
No court can compel a futile act.
Therefore a defendant, sued by a plaintiff seeking to enforce a futile act, has this affirmative defense (if a motion to dismiss fails).
Suppose a rancher sues to have his up-stream neighbor break down a dam across a creek, claiming his cattle are being deprived of needed water. If removing the dam will not divert water onto the complaining rancher’s property, the court should not enter an order requiring the up-stream neighbor to break the dam. The order would compel a futile act.
A defense raising the issue of futility gives defendant an affirmative mechanism to show the court plaintiff’s case is all wet.
Circumstances are rare where this defense may apply, yet the defense is tried and true for those threatened by stupid or vengeful plaintiffs having no valid basis for demanding judicial assistance in circumstances where such assistance would be to no avail.
It is a fundamental maxim of justice that the law will not enforce a futile act.
Good Samaritan
Some jurisdictions have statutory protections to limit the civil liability of persons rendering assistance in “emergency” situations.
These statutes limit liability for those who act with “reasonable care” to assist others in distress. They do not limit liability for those who act without reasonable care.
Further, the statute only limits liability for those who also do not charge money, i.e., for those who offer their assistance “gratuitously”.
He who charges money or demands any value whatever for rendering assistance to another is not protected by the Good Samaritan defense. Such persons are held to the
highest standard of duty.
Where such statutes exist, a person gratuitously offering assistance to another in distress is immune from lawsuits brought by persons claiming they were injured as a result of the gratuitously rendered assistance … unless the person rendering aid does so without exercising that degree of care expected from reasonable persons.
There must exist an imminent threat of bodily harm or substantial property loss for the defense to take hold.
Officious intermeddling does not constitute a “good Samaritan” deed. If an obvious need is not present, sticking your nose where it isn’t wanted will not be protected by this defense.
On the other hand, if you see someone obviously bleeding from an arterial wound pumping bright red blood in giant spurts, immediate assistance is required to save their life. In that circumstance, the Good Samaritan Act (if your state has one) will be an affirmative defense against a lawsuit for damages claimed to result from your attempt to stop the bleeding … provided you acted with reasonable care under the circumstances.
If you attempt to stop the bleeding by jumping up-and-down on the wound, you will not be protected by this defense.
If you tie a tourniquet too tightly, stopping the flow of blood and saving the person’s life, but fail to loosen the tourniquet occasionally to prevent cell damage to the affected part, and the damaged person files a lawsuit for damages caused by the too tight tourniquet, you will be protected by the Good Samaritan Act – because the degree of care required is only that of a reasonable person, i.e., an average person. You will not be held to the higher standard required of a medical professional or EMT.
If one has not actually begun to render assistance, regardless of preparatory actions taken to do so, the law will not hold him liable where the assumed duty has not begun.
One is only liable to act with reasonable care after he assumes a duty by beginning.
However, once one begins to render assistance, the duty to use reasonable care attaches. The one rendering care cannot abandon the injured person until professional help is on the scene without becoming liable for the consequences. Should he abandon the scene, after beginning to render assistance and before professional help arrives to take over, he may be held liable for all of the wounded person’s injuries resulting from his attempts and abandoned efforts.
Assist where you are able to do so, knowing you’re immune from suit brought for damages resulting from your reasonable exercise of due care. This is the right thing to do.
But! Remember that once you begin you cannot abandon the victim until professional help arrives.
Illegality
Our courts will not enforce an illegal contract.
Nor will our courts entertain actions by wrongdoers wishing to obtain a benefit from their wrongdoing.
A murderer who poisons his wealthy aunt after discovering he is named as sole beneficiary in her will cannot hope to receive anything from the poor old lady’s estate.
It is a general rule!
Take for example a gambling agreement between two parties located in a state that does not allow gambling. If the loser welches, the winner cannot take him to court. The court isn’t interested in helping him profit from his illegal activity.
More obvious, suppose Jimmy the Greek hires Three-Fingers McFee to take out the crime boss of another family. Three-Fingers does the job and returns to Jimmy with the victim’s right ear as proof. Jimmy refuses to pay (not very clever, of course), so Three-Fingers has no remedy at law. He can put a few holes in Jimmy to get his attention, but he cannot get his money through the courts. Obvious, of course, but it makes the point clearly.
The affirmative defense of illegality provides an absolute bar to a plaintiff seeking to recover in court for loss resulting from an illegal act.
Make a deal outside the law, and you’ll have no recourse in the courts.
Seek to recover a gambling debt in court, and this defense will be an absolute bar.
Pay for stolen merchandise, and you’ll have no remedy in the courts if the merchandise turns out to be defective. (And, if it’s determined that you knew the merchandise is stolen when you received it, you will be exposed to criminal penalties. Makes no sense to go to court over it.)
It is the fruit of a poisoned tree.
Impossibility
The law will not require an impossible act.
If defendant is prevented by some circumstance beyond his control to perform some obligation, and plaintiff sues for damages, this defense will succeed.
The defense arises primarily in contract cases where defendant is sued for failure to perform a promise, but it may apply in other circumstances as well, where defendant was prevented through no fault of his own.
To be impossible in the eyes of a court, the thing must be absolutely impossible.
Climbing a rock face at Yosemite may be incredibly difficult and probably impossible for most of us, but it is not absolutely impossible. Some skilled climbers have made it to the top, even grappling under the horizontal outcropping where they hang like spiders crawling on the ceiling of a room. Therefore, since some have accomplished the feat, it is not absolutely impossible.
In order for this defense to apply, the act complained of must be impossible.
In an old English case we studied in law school, a cargo was commissioned in Singapore to bring tea to England. The ship was lost in a storm, its crew drowned, the cargo ruined. Those expecting to sell the tea and make a profit sued. The courts ruled that the shipper could not be held liable for an impossible act, since the ship was lost. This may not make much sense until we see it was not the ship with which the buyers made their deal but with the shipper. Once it was impossible to deliver the tea, the shipper was absolved of liability using this defense.
Impossibility does not provide a defense if impossibility was reasonably foreseeable by the defendant but not foreseeable by the plaintiff. In other words, if defendant knew he could not perform because of some circumstance beyond his control, yet led plaintiff to believe performance was forthcoming, plaintiff’s suit will not be defeated by the impossibility defense.
If impossibility was foreseeable from plaintiff’s point of view, however, and not from defendant’s point of view, defendant will have the defense of estoppel. See estoppel above.
If impossibility was not foreseeable by either party, and performance was prevented or delayed by some circumstance beyond defendant’s power to control, this defense may remove or at least mitigate defendant’s obligation to compensate plaintiff for damages resulting from non-performance.
An ocean front land-owner contracts with a builder to erect a 25-story condominium on his beach property. The builder pulls a permit and begins construction after receiving partial payment to cover costs for the first phase. A few weeks after work begins, the state legislature passes a law stopping all construction of beach front condominiums exceeding 15 stories. Contractor stops work. Land-owner sues.
Because the law created an impossibility beyond contractor’s control, this defense will protect the contractor from suit for non-performance – provided contractor did not know in advance of the impending legislation and had no duty to inquire prior to starting construction. Contractor may be entitled to the fair market value of services performed and goods delivered to the job site, but probably would be denied recovery of his
anticipated profit for a completed job, since he was not allowed to complete.
The land-owner has no recourse against contractor, since the event preventing performance was beyond contractor’s control.
The land-owner’s only recourse is with the legislature.
Improper Venue *
Venue is often confused with jurisdiction.
They are two separate things.
Venue is where a court sits.
Jurisdiction is what the court can decide.
Two very different things!
Improper venue defenses generally don’t dispose of cases.
They move them.
* Defenses marked with an asterisk should be raised by preliminary motion before filing Answer. All such motions should be set for hearing and argued in court as soon as possible. If a motion fails, defendant should file these as Affirmative Defenses with his Answer.
Venue may be controlled by statute.
It may also be a matter of “where” the events giving rise to the lawsuit took place.
Or, it may be determined by “where” the evidence is, “where” essential witnesses reside, etc.
It is often a matter of convenience, determining “where” a case is most likely to result in a fair and just outcome.
You’ve no doubt heard of criminal defense lawyers trying to move a case to another town where the defendant, perhaps a scurrilous scofflaw, is not so well known and therefore, presumably, likely to have a better chance with an unbiased jury.
The purpose may be in part to conserve judicial economy by not permitting cases to be
brought in courts where delays and unnecessary expenses may result because evidence, parties, or events giving rise to the claims are located elsewhere, however the legitimate basis for it is to obtain a just outcome fair to both sides.
Although all state courts have “jurisdiction” to hear every kind of state case throughout the state, venue rules require cases to be filed only where “venue” is proper.
Failure to file in a proper venue gives rise to a Motion for an Order Changing Venue. Such motions almost always succeed.
For example, a Miami plaintiff will not succeed with a lawsuit filed in Dade County against a Fort Lauderdale resident (Broward County) if the Miamian’s damages occurred in Broward County – even though the two cities are less than 30 miles apart and virtually one metropolis – because Dade County is not a proper venue for such cases.
To require the Fort Lauderdale resident to come to Miami to defend would unduly prejudice him, delay proceedings, and increase the cost to taxpayers.
Improper venue frustrates the efficient administration of justice.
It also creates a prejudicial burden on the defendant.
In general, venue is proper in the county where defendant resides (or, if a corporation, where it has an office for customary business), where events giving rise to the claim (cause of action) accrued, or where property involved in the litigation is located.
A defendant sued in an improper venue should first move to have the case dismissed or transferred and, failing that, should preserve this issue by filing this affirmative defense with his answer.
Injury by Fellow Servant
When one employee is injured by another employee of the same employer, this defense protects the employer from liability if employer did not contribute in any way to the injury.
Where employer puts employees in places where work exposes employees to hazards they cannot avoid by using reasonable care, the employer has a duty to warn his employees and provide sufficient safety measures to protect them from harm.
If one employee injures another in such a hazardous working environment, and the injury results from the hazard as opposed to a fellow servant’s separate negligence or intentional disregard, then this defense will not protect the employer.
On the other hand, if one employee’s negligence or intentional disregard is the proximate cause of another employee’s injury, this defense may be available to protect the employer, since the employer literally “had nothing to do with it”.
Often, when an employee is injured on the job, the first person to be sued is the employer, because it’s presumed the employer has “deep pockets”.
If employer fails to require employees to wear goggles, for instance, where eye injury from
flying objects is reasonably foreseeable, then if one employee’s negligence causes eye injury to another employee resulting from flying objects, employer is not protected by this defense.
The measure is always to what extent employer had a duty to prevent his employee’s injury.
If employer has a duty, employer remains liable.
If employer “had nothing to do with it”, i.e., had no knowledge of a foreseeable injury and in all other respects provided well for his employees’ safety, then if one employee injures another employee this defense will protect the employer from liability.
Insufficiency of Process*
The defense of “insufficiency of process” arises when the clerk’s summons attached to the copy of the complaint is defective.
The summons and complaint are called the court’s “process”.
If the process is insufficient in some regard, the court never has jurisdiction over the person served – even if they do receive the summons and copy of the complaint.
If the summons has not been signed by a court officer, for example, or if a copy of the complaint was not attached to the summons when served, the process is insufficient to confer jurisdictional power on the court.
Insufficiency of process is a weak link in the chain that ties defendant to court power. If the process is insufficient, the court has not yet acquired jurisdiction over the defendant, and any orders entered in the case against the defendant are void ab initio … i.e., from the outset.
This defense does not arise when a party has not yet been served with a summons and copy of the complaint. That defense is called insufficiency of service of process. See below.
When one is served with improper process, he has a duty to assert his defense. He cannot choose to believe he is free to ignore the service. Many people make this mistake … and lose. The technicality they rely upon is ignored by the courts. One cannot wait until the court enters judgment, by default or otherwise, and then make the argument that proper service was never effected.
* Defenses marked with an asterisk should be raised by preliminary motion before filing Answer. All such motions should be set for hearing and argued in court as soon as possible. If a motion fails, defendant should file these as Affirmative Defenses with his Answer.
Once defendant knows a lawsuit has been filed against him, he must take affirmative action to participate or he will be deemed to have waived his defenses.
Ignoring service brings certain disaster.
The defense will be waived if the court determines the process served
Insufficiency of Service of Process*
This defense arises when service of process (not the process itself) fails.
The purpose of process is to put the defendant on notice that
Suppose plaintiff uses mail to deliver the summons and copy of complaint, and the rules in effect require service by other means (e.g., service by a Sheriff’s deputy or process server specially authorized by the court to serve process on defendants).
The process itself may be good, but service may be insufficient to give defendant “actual notice” that he’s been served.
In such cases, the court never acquires jurisdiction over the defendant.
* Defenses marked with an asterisk should be raised by preliminary motion before filing Answer. All such motions should be set for hearing and argued in court as soon as possible. If a motion fails, defendant should file these as Affirmative Defenses with his Answer.
Suppose a process server delivers service to the wrong person at the wrong address.
Process is fine. All the papers are in proper order, duly signed, etc. If the defendant has been served, he would be on notice that a lawsuit was filed against him and that failure to respond would result in default.
But, the defendant was not served.
The service of process was insufficient.
Or, if process is served by someone who’s not duly authorized to serve process, service of process is insufficient.
It is an error to learn of attempted service and attempt to evade service. Hiding from service has serious pitfalls. Most jurisdictions hold that once a defendant has actual knowledge that a lawsuit has been filed against him, he must appear to defend or be found in default … even when service was insufficient. See the discussion above under insufficiency of process.
The first response of defendant who learns a lawsuit has been filed but that service was not properly effected should be to file a motion for an order quashing the insufficiently served process or a motion to dismiss for insufficiency of process.
Failing that, he should file this affirmative defense with his answer to preserve the issue.
Of course, once defendant makes an appearance this defect will soon be cured.
Irreparable Harm
If plaintiff sues for an injunction when the wrong he seeks to prevent by an injunction could be fully compensated by an award of money damages, the court should dismiss the action.
Injunctions are only proper where money damages cannot cure the threatened harm. An essential element for an injunction to issue is allegation and proof that money damages alone cannot compensate plaintiff for the threatened harm.
This argument should be raised by a motion to dismiss before filing an answer.
Then, if the motion is denied, the defense should be filed with defendant’s answer.
If plaintiff has been beaten within an inch of his life, an injunction cannot restore him to the condition he enjoyed before the beating. The best the court can do is award plaintiff money damages to be paid by the defendant.
When an award of money would justly compensate plaintiff for his injuries, the court should not enter an injunction, because there has been no “irreparable harm”. If the harm can be cured by money, an injunction is improper.
The decision whether money alone is sufficient to protect plaintiff is not based on whether defendant has sufficient means to satisfy a money judgment. The decision rests squarely on whether money alone would (if money were available) prevent or cure the threatened injury.
If a money amount cannot be calculated that would protect plaintiff from a threatened injury (as would be the case, for example, if an upstream dam was planned to divert water to a valley different from where plaintiff has his ranch and thirsty cattle) entry of an
injunction is proper.
Otherwise, no.
Laches
The affirmative defense of laches rests on the idea that one who unreasonably delays pursuing his remedy in court (while witnesses die, evidence dries up, and memories fade) should not be permitted to sue … even if the statute of limitations has not yet expired.
This defense lies where the plaintiff’s intentional delay prejudices the defendant.
Elements
The question for the court is whether and to what extent plaintiff’s delay has weakened defendant’s ability to defend.
If a key defense witness is extremely ill at the time of events giving rise to plaintiff’s claim, plaintiff may think to himself, “Old Mrs. Peters may kick off any day now. Why not wait till she’s safely out of the way before I sue Jones?” With Mrs. Peters “safely out of the way”, defendant may have a much harder time defending himself. Therefore, if defendant can show the elements listed above, he may avoid the plaintiff’s late-filed lawsuit altogether by asserting this defense.
Delay may actually preclude the court from arriving at a just result because the span of time makes it too difficult to find the truth of matters asserted by the respective parties.
In some states a defense of laches will not be heard until the statute of limitations has
run. In other states this is not true.
Problems arise when the statute is tolled for one reason or another, i.e., when the clock is stopped. Consult local statutes and case law.
Defenses
Excuse
Once defendant shows the elements of this defense exist, the burden shifts to plaintiff to show his delay in filing suit was reasonable. Perhaps he could not sooner obtain the evidence he needed. Perhaps he knew of the wrong but didn’t know the wrongdoer’s identity. Under such circumstances, plaintiff may be excused from filing sooner.
Infants
An infant (which term in law generally means anyone younger than the statutory minimum age required to bring suit) is excused from filing suit during the period of his incapacity. However, as soon as he is of age the law imputes to him a duty to timely file an action against those he claims caused him injury during his minority.
Comments
If laches is not affirmatively pled at the start of a case, it may be deemed waived.
The burden of proving each element of the defense is, of course, on the defendant. In some jurisdictions it must be proved by “clear and convincing evidence” (a higher evidentiary standard than a mere greater weight or predominance of the evidence).
Unlike statutes of limitations that apply to actions in law, laches is a defense in equity that looks behind the scenes, so-to-speak. Laches examines the prejudicial effect of intended delay. Statutes of limitations simply tick off time and mechanically bar suits thereafter. Laches only bars suits when not to do so would threaten an avoidable injustice.
The mere passage of time does not give rise to this defense. Each of the elements must be alleged and proven.
Lack of Jurisdiction over Person*
Courts obtain jurisdiction over persons by the service of process. See insufficiency of process and insufficiency of service of process above.
Without jurisdiction over the person, no order of the court can be effective to command such person to do anything whatever. This is sometimes called in personam jurisdiction (i.e., jurisdiction over the person).
Service of process alone, however, is not enough.
Suppose an Alabama resident decides to visit the new aquarium in Atlanta. As soon as he enters the Peach State he’s hit by a Georgia driver soaked to the gills in moonshine. Our Alabama fellow suffers substantial damage to his vehicle, and weeks later his throat makes frog-like sounds when he tries to sing Irish folk tunes. He clearly has damages and a right to sue.
But, suppose the injured Alabamian returns home, recovers from his injuries, and decides to sue the Georgia driver in an Alabama court.
Too bad. So sad. Won’t work.
* Defenses marked with an asterisk should be raised by preliminary motion before filing Answer. All such motions should be set for hearing and argued in court as soon as possible. If a motion fails, defendant should file these as Affirmative Defenses with his Answer.
Georgia residents cannot be sued in Alabama’s state courts for events occurring entirely within Georgia’s borders.
Alabama’s state courts have no jurisdiction over the person of Georgia residents, unless they cause harm within Alabama.
A motion to dismiss for lack of jurisdiction over the person should be filed and, if that motion fails, this affirmative defense should be filed with the answer to preserve the issue.
If a Georgia resident causes injury in Florida before returning to his home state, courts in the Sunshine State can exercise long-arm jurisdiction. Most states have long-arm jurisdiction. A Floridian injured by a Georgian vacationing in Florida can file suit in a Florida court and have the Georgia resident served in Georgia using Florida’s long-arm statute. (Every state has one. Consult the official rules in your state to learn how.)
If everything is done as the long-arm statute requires, Florida obtains personal jurisdiction over the Georgia resident, just as if the Georgia resident resided in Florida and was served with process in Florida.
It takes a bit of extra time, but it works!
Causing or contributing to damages in a foreign state subjects defendants to jurisdiction in the state where they cause their damage.
Lack of Jurisdiction over Subject Matter*
This defense may be raised at any time.
It should be raised as soon as possible.
If plaintiff sues defendant in state court to preclude patent infringement, defendant would prevail, because federal courts have exclusive jurisdiction to hear patent cases. State courts do not.
On the other hand, if plaintiff sues in state court for loss of earnings due to some matter remotely related to patent infringement, but not the infringement itself, the federal courts do not have exclusive jurisdiction, and this defense would fail.
Subject matter jurisdiction is sometimes limited by the amount of money plaintiff puts into controversy.
County court may not have subject matter jurisdiction over a case claiming millions after a nearsighted surgeon removed plaintiff/pianist’s left thumb instead of a wart on the poor fellow’s nose! The amount in controversy may exceed what the county court can award.
To bring an action in federal court based on diversity of citizenship (where plaintiff and defendant reside in separate states) requires plaintiff to claim at least $75,000 in damages (as of this writing). Failure to allege the minimum amount is fatal. Even if the plaintiff alleges the minimum of $75,000, this defense will operate if defendant can prove damages plaintiff alleges do not comport with plaintiff’s actual losses.
I won a case several years ago when plaintiff residing in Illinois brought a case in federal court against my client, a Florida-based moving van company. Plaintiff presented a laundry list of damages, all of which amounted to things like a scratched refrigerator door, broken picture frame, and other incidentals that could not have cost more than $5,000 to fix or replace. The federal court was only too glad to grant my motion to dismiss.
* Defenses marked with an asterisk should be raised by preliminary motion before filing Answer. All such motions should be set for hearing and argued in court as soon as possible. If a motion fails, defendant should file these as Affirmative Defenses with his Answer.
A common situation arises when plaintiff sues in the wrong court. Inexperienced lawyers and pro se non-lawyers sometimes bring suit in the highest trial court level when their case should have been brought in small claims. In such cases this defense should be raised by motion to dismiss for lack of subject matter jurisdiction and, if the motion fails, should be preserved by affirmative defense when the answer is filed.
I once succeeded in having a very complicated case against my client dismissed for lack of subject matter jurisdiction when the other side sued under a particular statute that required five factual elements. Only four were present. Since the court’s jurisdiction to hear the matter in the first place stood solely on the wording of that statute, the court lacked jurisdiction to decide the case with only four of the five fact elements present. The judge had no choice but to dismiss the case against my client.
If the court lacks subject matter jurisdiction, and defendant raises and proves the elements of this defense, the judge’s hands are tied.
License
This defense arises when plaintiff sues for trespass or conversion or similar cause of action alleging defendant unlawfully and without authority or permission entered upon or took possession of plaintiff’s property.
The property could be farm land and the offense nothing more than walking on the land to hunt pheasant.
The property could be a bicycle taken by defendant for a brief ride around the block.
The property could be intellectual, such as a copyright to plaintiff’s book, painting, or other protected creation.
However, if plaintiff grants defendant license to use, possess, or enter on plaintiff’s property (either formally or implied at law), defendant has an affirmative defense that is absolute.
Plaintiff’s permission or consent destroys plaintiff’s case.
License may be granted by someone who only appears to be plaintiff, e.g., a person holding out as an officer of plaintiff’s corporation but lacking, in fact, authority to license use of plaintiff’s property. Plaintiff’s license may be granted by plaintiff or an agent of plaintiff having actual authority or only apparent agency to grant license on plaintiff’s behalf.
Proving license may be no more difficult than presenting a ticket stub or written agreement reciting sufficient detail to advise the court that permission was granted.
It could be in the form of a hand-written letter or a formal contract.
If the license is in writing, properly authenticated, signed, and dated, defendant has an absolute defense to any action brought by plaintiff claiming damages resulting from defendant’s use of plaintiff’s property.
If permission was merely verbal, however, and no corroborating witnesses were present to support defendant’s assertion that he had a legal right by way of plaintiff’s license to use plaintiff’s property, the court may inquire into the circumstances to determine if defendant is telling the truth and plaintiff did, indeed, give permission … actual or implied.
What constitutes license may be little more than a nod of the head.
However, nodding heads are extremely difficult to get into evidence!
No Prior Course of Dealing
This defense defeats complaints for account stated.
(Please see explanation of account stated in the class on Causes of Action.)
In order for plaintiff to prevail on claim for account stated, he must allege and prove there was a history of prior dealings between the parties, i.e., a reasonably long history of periodic billing the defendant timely and routinely paid over an extended course of time
prior to the lawsuit.
Since this “prior course of dealing” is an essential element of plaintiff’s case, this affirmative defense asserts there was no prior course of dealing which, if proved, ends the case.
One way to defeat a complaint for account stated is to show the debt claimed is new, i.e., there was no prior course of dealing between the parties or, at best, a very short period with few transactions.
Sending an invoice or other demand for payment of a debt that includes language such as, “Failure to dispute the amount of this debt will result in the legal conclusion that the debt is owed,” may intimidate unwary people into paying the claimed debt, however such a demand is without legal effect and does not give rise to account stated.
Failure to respond to a demand letter, without more, is insufficient to give rise to this cause of action.
Suing for account stated when essential elements are clearly absent, may expose the party bringing the action to a counterclaim for abuse of process if it can be shown plaintiff intended to intimidate debtor and there was no prior course of dealing.
Payment
Payment of a debt is an absolute defense.
To prevail, defendant need only tender admissible evidence to show all amounts payable, including interest (if applicable), are fully paid.
Payment in full satisfies every debt!
Suppose bank lends $10,000 to borrower who signs and delivers a promissory note the bank holds. Suppose the lender decides to use the borrower’s house in the islands for a three-week vacation, and the parties agree the value of the vacation will cancel the obligation of the note. The obligation to pay has been satisfied, even though the borrower paid no cash to the lender. There is more than one way to settle a debt.
The affirmative defense of payment applies either way.
The problem many people run into is failure to insist on a receipt or other written evidence of payment – identifying the debt, signed and dated, with amount of payment clearly indicated.
This occurs a great deal in child support cases, where non-custodial parents provide cash to former spouses without getting receipts identifying the funds as child support. Things go well for awhile. Then a disagreement erupts. Suddenly, the parent who’s been faithfully paying his or her obligation is served with a motion to compel payment, alleging no payment has been made. Of course it’s a lie. Of course it’s not fair. But, it happens all the time when non-custodial parents fail to obtain proof of payment.
The best way to satisfy money obligations is with a check designating on the line provided to say what the check is “for” that the amount is “Satisfaction of child support for the month of March 2006” or similar words that estop [See the affirmative defense of estoppel above.] the recipient from claiming the check was for anything else. Once endorsed and negotiated, the cancelled check is prima facie evidence that the debt has been extinguished.
In lieu of using a check, if cash (or other value, e.g., property) is tendered to pay a debt, then a signed and dated receipt should be obtained from the recipient, identifying the amount of value given and received and clearly specifying the debt toward which the payment is made. The original of such a receipt is prima facie evidence the obligation was satisfied by the amount tendered.
Absence of proof of payment destroys this defense.
Release
If plaintiff sues for breach of some obligation, and plaintiff (by word or deed) released defendant from that obligation, defendant should file this affirmative defense (after moving the court to dismiss before filing an answer).
Once a party is released from obligation, plaintiff cannot succeed suing that party for breach of the obligation – if defendant files this affirmative defense and proves the essential elements of the defense by a preponderance of admissible evidence.
Release may operate in several ways.
The happy soldier with his discharge papers cannot be prosecuted for dereliction of duty. He has been released, discharged, no longer under his former obligations.
On the other hand, for his defense to stand, the release must be clear and unambiguous.
To be effective, a release cannot be vague, or ambiguous. If it is susceptible of multiple interpretations, then any reasonable interpretation may be attached to it – including those having nothing to do with release.
If in writing, a release should specify obligations being released including, if necessary, the scope of release in time and geographical area. Some releases written by persnickety lawyers may include terms like “from the beginning of time” and “in all places whatsoever and without restriction”.
When a client fires an incompetent lawyer and dares to hire another to take his place, the replacement lawyer may file a paper with the court that in some jurisdictions requires the client’s signature as well. The paper is called a “notice of appearance”. It clearly states the second lawyer is replacing his predecessor and that all future filings are to be served on the replacement lawyer. Once this paper is filed, the initial lawyer is released from the responsibility to continue representing his former client.
The replaced lawyer will remain responsible to deliver papers from his file to the replacement lawyer (if his bill was paid), and he will be responsible for his prior incompetence, yet he will thereafter have no duty to represent his client, because the notice of appearance releases him.
If verbal, of course, statements constituting release must meet the requirements of a writing and be witnessed by credible persons who can attest to the terms of the release if called upon to do so in case of a lawsuit.
If a release is communicated by actions (as opposed to written or spoken words) the actions evidencing release must be similarly clear and unequivocal, capable of only one interpretation, i.e., a clear and unconditional release of defendant’s obligations.
Under recent federal banking regulations, many banks no longer return originals of canceled checks. Under the new law, electronic copies of negotiated checks are admissible as evidence. Original checks with endorser’s original “wet ink” signature on the back are, of course, much stronger evidence.
For example, suppose a creditor accepts partial payment as complete satisfaction of a prior debt. The debtor may make a notation on his check that the amount is “payment in full”. If the creditor negotiates the check, his accepting and negotiating the check with the notation printed clearly and conspicuously may constitute a legal release of the debtor’s obligation to pay the balance. If the creditor brings a lawsuit seeking to recover the alleged unpaid balance of the debt, the defendant can file this affirmative defense and his cancelled check as conspicuous evidence in support of the defense.
Whatever the form of release, if defendant can present clear and convincing evidence the former obligation has, in fact, been canceled by some act of the person to whom the obligation is allegedly owed, this defense is absolute.
Res Judicata
The meaning of this Latin phrase is simply “the thing has been already adjudged”.
The decision is already in the court’s file.
It will not be tried again.
If plaintiff sues to rehash issues already resolved by a court, defendant should file a motion for an order dismissing the complaint, raising res judicata as his defense, attaching a certified copy of the final order from the previous case.
If this motion fails, defendant should preserve the issue by filing this affirmative defense with his answer.
Suppose a court ruled last year a particular parcel of real property belongs to Mr. White and not to Mr. Green. If Green sues over the issue of title to that same parcel, this defense applies as a complete bar.
If defendant properly raises the defense and subsequently proves the essential elements of fact, plaintiff’s attempt to get another bite at the apple is doomed.
No court should alter any material decision of an earlier court, unless the second court is an appellate division having control over the initial court.
The United States Supreme Court, for example, can change the decision of any state court or inferior federal court.
One trial level court, however, cannot overrule or otherwise alter the material parts of the previous decision of another trial court. The courts are on an equal footing. Neither has power over the other. A circuit court sitting in the civil division should not be permitted to overrule or materially alter the decision of another circuit court sitting in the probate division.
Defendant faced with such a situation should file this affirmative defense (if his motion to dismiss fails) and proceed with discovery to obtain admissible evidence to show a prior court decision has already decided the matter by a final judgment.
Self-Defense
This poor fellow needs to study this course!
Self-defense is not defense against “self”.
Self-defense is action to prevent injury to oneself.
Self-defense can also apply loosely to action to protect one’s property or a separate person in peril and their property.
Self-defense can even apply to words or other communications offered to prevent injury.
Suppose you threaten to hit me with a beer bottle. I wave an umbrella over my head shouting, “Hit me with that bottle, and I’ll break your arm with this umbrella!”
If you sue me for assault, I have self-defense in my favor.
Suppose you actually start beating me with that beer bottle. I haul off with my umbrella and break your arm.
If you sue me for battery, I have this defense to defeat you.
Any communication or act done in defense of personal safety or private property is a lawful defense.
If you are in the act of stealing potatoes from my garden, and I run toward you waving a shovel over my head, shouting, “Get out of my garden or I’ll pound you with this spade,” I have an affirmative defense to your cause of action against me for assault.
If you continue stealing my potatoes and I break your arm with my shovel, your lawsuit against me will result in my filing this affirmative defense to protect my property.
I have a right to protect my property … provided I act reasonably.
If you threaten to hit me over the head with a pillow, and I break your leg using a steel crow-bar, however, I cannot claim self-defense, because my response was not reasonable under the circumstances.
You may plead self-defense if you are threatened with imminent harm to personal safety or private property, and your defensive action is reasonable under the circumstances.
You will not be excused for killing or severely maiming potato thieves. The law forgives only reasonable force suitable to repel the immediate threat.
You can, however, chase thieves out of your garden with a shovel and even smack them on the backside as they run. However, once the threat disappears, you must stop acting in self-defense, for it is no longer “self-defense”.
If you are threatened with imminent death or serious bodily harm, many jurisdictions honor your right to use deadly force in response.
If it’s possible to withdraw from a threatening situation, however, the law favors your doing so. But, in many jurisdictions you are not required to retreat. You may “stand your ground” and defend yourself with force appropriate to the immediate threat.
Use of defensive force greater than reasonably necessary, is not an affirmative defense to
a lawsuit for damages.
Use only such force as is reasonably necessary under the circumstances.
Sham
If plaintiff files a lawsuit alleging material facts plaintiff knew were false at the time he filed, his complaint may be stricken as sham.
If only ancillary facts are false and known to be false at the time of filing, those allegations may be stricken as sham.
What applies in pleadings also applies to motions and all other papers filed with the court.
A motion for an order striking sham is an excellent (but seldom used) tactic to force the issue of your opponent’s outright dishonesty and disregard for the honor of the court. By filing the motion you put the other side’s veracity into question and, if you’ve done your discovery well (explained fully in another class in this course) you’ll be able to prove the other side knew what he said in his papers was false and tried to get away with it!
This is always good for your side.
As a defense, like others, this should be asserted by motion to strike sham prior to filing an answer. If that fails, be certain to include it as an affirmative defense when you file your answer to preserve the issue.
A motion to strike sham must assert
A false allegation must be material for this defense to stand. The false allegation must go to the heart of at least one cause of action.
Sham pleadings are taken seriously by good judges!
Proving an allegation false is not easy. It is extremely difficult at the beginning of a case, when there has not yet been sufficient opportunity to get much discovery, to prove that the other fellow knew the material allegations made were false at the time they were made.
Therefore, if a motion for an order to strike sham fails, defendant should file this affirmative defense to preserve the point and give him a clear target for further action that may give him the victory after he has an opportunity to get discovery and put admissible evidence into the court file.
Statute of Frauds
The statute of frauds was inherited from English jurisprudence and remains as a vital part of our common law, amended in part by statute.
If a lawsuit is brought over a verbal agreement for the sale of “goods” (i.e., tangible personal property), nearly all states will refuse to hear the case if the value of the goods exceeds a certain minimum amount, unless there is a written contract spelling out the terms. Typically, disputes of sale of goods for lesser amounts is handled in small claims court, and no written contract is required.
Suppose, for example, the jacket on the mannequin sells for $499.99, and the salesperson allows the customer to wear the jacket home upon his promise to pay for the jacket the next day. In Florida (and other states) where the limit for sale of goods without a written contract is $500 (as of this writing), that verbal contract can be enforced in court (provided the salesman can get the proof he needs to win).
If the same jacket in another store sells for $501, and the salesperson allows the customer to wear the jacket home upon his word of honor he will pay for it the next day, we say the sale is outside the statute of frauds, and the salesman is without a remedy for breach of contract. He may bring a complaint for unjust enrichment (see in the class on Causes of Action), but he cannot sue for an amount in excess of the maximum unless he has a contract in writing.
If parties reach an agreement for services capable of being performed within the space of one year (as the law reads in Florida and other states at the time of this writing) the courts will hear a breach of contract suit and enforce a verbal agreement. If the agreement is for services that cannot be performed within the space of one year, the agreement will not be enforced unless in writing signed by the party against whom the action is brought.
As with many other defenses, this should be first raised with a motion to dismiss. Then, if the motion to dismiss fails, the issue should be preserved by filing this affirmative defense with the answer and proceeding with discovery to prove the elements with admissible evidence.
Though statutes of fraud differ somewhat between jurisdictions, commonalities do exist. The purpose is everywhere the same: to minimize fraud.
Statute of Limitations
Courts will not wait forever to hear a complaint.
Though cases like murder remain viable forever, nearly every civil case must be brought before a deadline tolls.
This deadline is set out by statute in most states.
You guessed.
It’s called the statute of limitations … and it sets different deadlines for different types of cases.
One must consult the local statutes to determine what limitations apply, because they can change unexpectedly. As some wise man once said long ago, “No one is safe when the legislature is in session!”
Wise litigants mark their calendars and start counting time from the moment a possible cause of action arises, because once the deadline passes the cause is dead. That’s why it’s called a deadline.
This defense should be asserted by motion to dismiss before filing an answer. If the court does not dismiss, defendant should file as an affirmative defense with his answer.
Keep in mind what you learned about the defense of lack of jurisdiction. It can be argued that a court lacks jurisdiction to hear a case after the statute of limitations has run, so it is vital to preserve this defensive issue by filing it as an affirmative defense, because later when you’ve had the advantage of gathering evidence through discovery you may be able to show the date on which the clock started ticking!
If the time from that date until the time the plaintiff filed his suit exceeds the limitation, the court has lost jurisdiction, and the case must be dismissed or else any judgment resulting will be overturned on appeal as void ab initio.
Not all causes of action have the same time limitations.
For example, a case brought to enforce a negotiable instrument generally may be brought much later than a case of medical malpractice or breach of contract.
The only way to be certain of the deadlines is by going to the statutes itself and by reading the applicable appellate decisions that control your trial court judge.
For example, in many states the clock starts ticking to limit the time for bringing a case for medical malpractice as soon as plaintiff knows or should have known a negligent medical act caused plaintiff’s injury. Plaintiff cannot wait for a convenient time to bring his suit. He has only a statutorily-specified period from the date on which he knew or should have known of the negligent act and its damage-causing consequence.
The statute of limitations is usually an absolute bar.
It must, however, be properly asserted in the record.
Truth
If an alleged slander is true, there can be no action.
If an alleged fraud is not false, this defense will win the day.
Plaintiff has the burden of proving falseness.
Defendant does not have a burden to prove truth.
If plaintiff alleges in his complaint, “Defendant robbed me,” yet plaintiff cannot prove defendant stole anything, this defense will close the issue in defendant’s favor. Defendant will use what’s taught in this course to force plaintiff to prove his allegations of theft.
If plaintiff alleges defendant committed fraud when he advertised a used car as having been only driven by a little old lady once each week to go to church, but plaintiff cannot prove that the car was driven by anyone else for any other purpose, defendant will stand on this defense and win. Defendant will use what’s taught in this course to force plaintiff to prove his allegations of fraud.
If plaintiff alleges defendant defamed him by publishing on the internet that plaintiff did time in Folsom Prison, and plaintiff did spend time in Folsom Prison, defendant will use what’s taught in this course to prove plaintiff is an ex-con.
It’s putting the ball in the other guy’s court.
If you tell your neighbor, “Our mailman is a communist,” and it gets back to the Post Office, and your mailman loses his job, prepare for battle.
But, if you prove your mailman is a communist, this defense will protect you.
Unclean Hands
“He who comes to equity must come with clean hands.”
This ancient maxim is as binding today as it was many centuries ago.
Those who seek the benefits of equity must not have contributed to the problems for which they need a remedy. Such persons are said to have unclean hands.
Every injunction is a remedy in equity. Therefore, one who’s acted with bad faith in some way to contribute to his own problems should be denied the remedy. He has unclean hands.
If a plaintiff wrongfully defrauded defendant yet seeks an injunction, the defendant should file unclean hands as an affirmative defense with his answer, explaining how the
plaintiff is not without fault in the very thing for which he seeks the court’s equitable remedy.
The court should look beyond the bare allegations of pleadings when asked to deny an injunction for unclean hands. Factors to be considered include:
The wrongs of plaintiff that constitute “unclean hands” must relate to the subject matter of the equitable remedy sought. The fact plaintiff brutally murdered his mother-in-law with a chain saw three years ago is not the kind of “unclean hands” this defense contemplates.
Unclean hands is rather like estoppel in that it looks into how a party has contributed to his own problems.
Suppose a property owner deceitfully prepares a deed purposely misdescribing property boundaries. He takes the buyer’s money and tenders the deed. The buyer, relying on the deed and its boundary description, builds a house that encroaches on seller’s own property.
Buyer based his actions on the seller’s property description, so buyer has “clean hands”. He in no way has done wrong.
Seller, however, has very “unclean hands”.
So, if plaintiff sues for an injunction requiring his new neighbor to move the house, this defense will defeat the dishonest plaintiff’s efforts – because the wrong of plaintiff relates directly to the subject matter of the remedy sought.
When a party seeks equitable relief for damages caused even partially by his own acts, the defendant should file this affirmative defense to preserve the issue and use discovery to find admissible evidence to prove plaintiff has unclean hands.
Unconscionability
If a party becomes the unwitting victim of a contract, deed, mortgage, promissory note, or other agreement procured by fraud, overreaching, or other unjust means, this affirmative defense should be pleaded with defendant’s answer.
Courts should not enforce an unconscionable agreement.
This is true even when injury results from victim’s own foolishness, lack of caution, and failure to act reasonably.
If the injury results from the wrongful act of another, the courts should cure the injury.
This affirmative defense is a first step toward obtaining that relief from the court, because it puts the court on notice of the issues to be tried.
Elements
This first element is called substantive unconscionability, i.e., the terms of agreement itself are unreasonably favorable to plaintiff bringing suit to enforce.
The second element is called procedural unconscionability, i.e., there was an absence of any meaningful choice on the part of defendant. Perhaps he was too feeble. Perhaps he lacked all understanding of technical aspects of promises made to him. Either way, there was no meeting of the minds essential to formation of an enforceable agreement, and therein lies the gist of this defense.
It has been said at common law an unconscionable contract is one that “no man in his right mind not under delusion would make on the one hand, and no fair and honest man would attempt to enforce on the other.”
Some authorities examine the respective bargaining powers of the parties, i.e., the ability of one to understand the terms and conditions communicated by the other.
Synonyms for unconscionable include “shocking the conscience”, “monstrously harsh”, “grossly unfair”, etc.
Unconscionability as an affirmative defense must be pled, or it may be waived.
Waiver
Waiver arises when plaintiff waived the right or privilege on which he sues.
The right or privilege waived must, of course, first exist, or there is nothing to be waived.
The waiver must be knowing, i.e., plaintiff cannot be said to have waived a right or privilege without knowing (or having constructive knowledge) of the fact.
Finally, plaintiff must have waived with actual intention to relinquish the right or privilege.
Elements
For the court to imply waiver from plaintiff’s conduct, facts relied on to demonstrate the waiver occurred must be “clear and convincing”. Mere inferences are not enough, however probable they may seem. In the absence of direct facts demonstrating waiver,
defendant must meet a heavy burden for the court to imply a waiver.
In some jurisdictions, waivers cannot be established unless evidenced by some express writing demonstrating plaintiff had knowledge of the waiver and its consequence.
Conclusion
The best defense is a good offense!
Where have we heard that before?
This fat fish swimming peacefully among sharks has the right idea. Swim softly and carry a big club with sharp spikes on the end!
No need to attack others, unless they attack you – but when they do attack one is wise to have an affirmative defense, a strike-back response with teeth!
If you read the typical affirmative defense pleadings filed by typical lawyers you’ll find they often list only the “name” of each affirmative defense without alleging any of the facts necessary to establish the defendant’s right to rely on the defenses.
This is a big mistake.
But, that’s what law schools are turning out these days for the $200,000 it costs to attend 3 years of law school with tuition, books, and living expenses. (They could do better by signing their students up with a subscription to my course!)
YOU are not going to make this stupid mistake nearly every lawyer makes.
You won’t merely list the names of your defenses (e.g., laches, license, or payment).
You will allege with each the facts that show you are entitled to the protection of each defense, and then you will prove each of those facts to win your case as a defendant.
This is smart.
This is the Jurisdictionary® way of doing things!
Just as you’ve learned about drafting a complaint, case-winning litigants allege each and every ultimate fact necessary to establish each and every essential element of their case – whether they’re the plaintiff or defendant – every fact you need to prove to prevail.
To merely list the names of your affirmative defenses weakens your case. You and the court end up confused as to which facts you need to prove to win!
Remember: Affirmative defenses are affirmative, not defensive.
Defendants never should let themselves be put on the defense.
Use affirmative defenses to take the ball from the plaintiff and drive for the goal on our end of the court. Then pound away at the plaintiff discovery and motions until the weight of admissible evidence in favor of your defenses is greater than weight of admissible evidence in favor of his complaint.
That’s why we urge defendant to use affirmative defenses. Nothing less is good enough!
Winning defendants “turn the tables” on plaintiffs by affirmatively alleging facts in defense that (if proven by admissible evidence) defeat plaintiffs’ claims.
Once affirmative defenses are properly pleaded, all that remains is to prove the alleged facts by the greater weight of admissible evidence.
The contest becomes one of who can pile up the most evidence!
That’s how wise defendants win!
This also has the advantage of eliminating water-muddying arguments over relevance down the line when plaintiff refuses to respond to discovery requests. By alleging what you need to prove to win, you’ve clearly established what facts are relevant. If sufficient facts are not alleged, it’s anyone’s guess what is and what is not “discoverable”.
Stop worrying how other people do things.
Stop worrying how big shot lawyers do things.
Do things right!
Begin your defense on a solid footing.
Put plaintiff on the defense!
Then use your discovery tools (covered in a later class) to keep him on the defense!
This is how defendants win!
Defend affirmatively!
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