It has become very common for defense attorneys to throw the “kitchen sink” in the end of their Answer or responsive pleading once the lawsuit has been filed. Many times, one of the last paragraphs in the Answer will contain a paragraph along the lines of “The Defendant asserts the affirmative defenses of accord and satisfaction, laches, lack of service, lack of service of process” and maybe many others. Many times, jurisdictional rules allowing, the paragraph will contain no facts supporting these claims or defenses. They’re simply placed in the Answer as a stop-gap measure in the even circumstances arise later that gives them reason to assert these defenses.
As soon as an Answer containing these broad affirmative defenses, it’s imperative that Plaintiff’s counsel send out a set of discovery following up on these defenses. It’s important to ask what facts, if any, the Defendant is relying on in asserting these defenses. If the responses come back with weak or no facts supporting these affirmative defenses, the Plaintiff should follow up again with a Motion to Strike or a Motion to Dismiss these defenses.
Many Defendants simply incorporate these paragraphs as part of their form Answer, and if these affirmative defenses are ignored, they may turn into glaring issues at trial and in the jury instructions. That’s why it’s important to address them on the front end. Further, it helps to understand potentially valid defenses that the Defendant will use at trial.
However, as it stands, these affirmative defenses can be live grenades, and it’s up to the Plaintiff to use discovery to determine which defenses are live and which are duds in the procedural minefield. It would be a pity to ignore an affirmative defense of “lack of service upon the Defendant” only to realize later that the Defendant wasn’t properly served (and this ticking time bomb could have been potentially remedied had Plaintiff’s counsel found this deficiency and remedied it while there was still time for service). A review of the appellate decisions is littered with potentially seven-figure cases that were dismissed for technical reasons because of these affirmative defenses.
Following up on these affirmative defenses has now become one of the imperative procedural tasks and essential elements to effectively get a case to trial. When selecting an attorney, like a personal injury lawyer Little Rock, AR trusts, you should consider hiring a veteran trial lawyer who has experience in dealing with these affirmative defenses.
Thanks to Steve Harrelson and our friends and co-contributors from Harrelson Law Firm, P.A. for their added insight into procedural pitfalls.