Monday, February 27, 2012

Affirmative Defenses

Provided there are no objections to the complaint, the opposing party files an answer. In a typical answer, all claims are denied and so-called affirmative defenses are presented. Affirmative defenses refer to legal grounds for dismissal, as opposed to factual grounds.
Common affirmative defenses are waiver, assumption of the risk, and statute of limitations. A waiver is an action by the plaintiff that results in giving up the claim. For example, a plaintiff waives the right to sue by signing a settlement agreement before initiating litigation. A plaintiff assumes the risk of injury by knowingly engaging in an act that will likely cause injury, such as hang gliding, cliff diving, or other extreme sports. The defense of statute of limitations refers to the expiration of the legally established time limit for asserting a claim.
In addition to affirmative defenses, a defendant may assert a claim against the plaintiff or another party. A claim made by the defendant against the plaintiff is called a counterclaim. Third-party claims involve shifting the responsibility to another party. The defendant states that he or she was not responsible but rather a different party-the third party-was. For example, a third-party claim could involve the shift of responsibility from the prime contractor to a subcontractor. For any affirmative defense or third-party claim, the burden of proof resides with the defendant.
Complaints, affirmative defenses, and counterclaims combine to create the pleadings in a case and define the legal issues, factual contentions, and theories of relief or defense. Pleadings must be specific enough to substantiate litigation without dismissal, while at the same time broad and ambiguous enough to allow for amending or fine-tuning claims and defenses as the litigation unfolds.

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