Tuesday, October 23, 2012

Affirmative Defenses (Litigation Checklist)

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy. It is intended to assist in identifying appropriate affirmative or additional defenses for inclusion in an answer. To my knowledge, this is the most complete list of affirmative defenses available, currently consisting of 149 separate affirmative defenses.  This list is updated continuously, but certainly isn't complete--if you have a suggested addition, please contact me or comment below.
C.R.C.P. 8(c) requires a party to "set forth affirmatively . . . [any] matter constituting an avoidance or affirmative defense."
Checklist & Best Practices to Consider:
- Consider each of the below affirmative defenses--does it potentially apply in your case?  Rule 8(c) requires that both defenses to liability and defenses that potentially mitigate damages must be set forth in the pleadings.  Indus. Comm'n v. Ewing, 418 P.2d 296 (Colo. 1966).
- If a defense is not raised by the pleadings, it may still be tried by the express or implied consent of the parties.  See C.R.C.P. 15(b); Great Am. Ins. Co. v. Ferndale Dev. Co., 523 P.2d 979 (Colo. 1974).  However, it is error for a trial court to consider a defense first presented at trial if it is objected to.  Maxey v. Jefferson County Sch. Dist. No. R-1, 408 P.2d 970 (Colo. 1965).  Accordingly, while pleadings may be amended to add additional affirmative defenses, it is essential that all defenses to be raised at trial are pleaded before trial, and that any attempt to raise defenses not pleaded is objected to.
- Note that, unlike affirmative defenses where the defendant bears the burden of proving the defense, some of the following are more properly styled "additional defenses" where the plaintiff bears the burden of proving that the defense does not apply (e.g. service of process).
- While the vast majority of these defenses will not apply in any given case, review of the complete list may be an especially helpful tool in brainstorming at the outset of a case.
***DO NOT PLEAD A LAUNDRY LIST.  As stated above, the vast majority of these affirmative defenses will not apply to any given case--they are intended as a brainstorming tool, and certainly should not be included in full.  Rule 11 requires that you have a good faith basis for believing an affirmative defense actually applies before pleading it, and in discovery you will likely need to respond to an interrogatory identifying all factual bases for every affirmative defense you plead.
List of Affirmative Defenses (Partial):
- failure to state a claim upon which relief may be granted (almost always use)
- statutory defenses prerequisites (these will vary depending on the claims)
- preemption by federal or other law
- accord and satisfaction
- arbitration and award
- assumption of risk
- economic loss rule
- contributory or comparative negligence
- intervening cause
- supervening cause
- claimants own conduct, or by the conduct of its agents, representatives, and consultants
- discharge in bankruptcy
- duress
- estoppel
- recoupment
- cardinal change
- set off
- failure of consideration
- fraud (generally, as an equitable defense, as opposed to fraud in the inducement, below)
- fraud in the inducement
- illegality
- injury by fellow servant
- borrowed servant
- laches
- license
- payment
- release
- res judicata
- statute of frauds
- statute of limitations
- waiver
- unclean hands
- no adequate remedy at law
- failure to mitigate damages (or, in some circumstances, successful mitigation of damages)
- rejection of goods
- revocation of acceptance of goods
- conditions precedent
- discharge
- failing to plead fraud with particularity
- no reliance
- attorneys’ fees award not permissible
- punitive damages not permissible
- lack of standing
- sole negligence of co-defendant
- offset
- collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. Section 13-21-111.6)
- improper service
- failure to serve
- indemnity
- lack of consent
- mistake
- undue influence
- unconscionability
- adhesion
- contrary to public policy
- restraint of trade
- novation
- ratification
- alteration of product
- misuse of product
- charitable immunity
- misnomer of parties
- failure to exhaust administrative remedies
- frustration of purpose
- impossibility
- preemption
- prior pending action
- improper venue
- failure to join an indispensable party
- no private right of action
- justification
- necessity
- execution of public duty
- breach by plaintiff
- failure of condition precedent
- anticipatory repudiation
- improper notice of breach
- breach of express warranty
- breach of implied warranty
- parol evidence rule
- unjust enrichment
- prevention of performance
- lack of privity
- merger doctrine
- learned intermediary or sophisticated user doctrine
- adequate warning
- no evidence that modified warning would have been followed or would have prevented injury
- manufacturing/labeling/marketing in conformity with the state of the art at the time
- release
- res judicata
- assumption of the risk
- product was unavoidably unsafe
- product provides net benefits for a class of patients
- spoliation
- damages were the result of unrelated, pre-existing, or subsequent conditions unrelated to defendant's conduct
- lack of causal relationship
- act of god (or peril of the sea in admiralty cases)
- force majeure
- usury
- failure to act in a commercially reasonable manner
- acquiescence
- doctrine of primary or exclusive jurisdiction
- exemption
- failure to preserve confidentiality (in a privacy action)
- filed rate doctrine
- good faith
- prior pending action
- sovereign immunity
- truth (in defamation actions)
- suicide (in accident or some benefits actions)
- adverse possession (in trespass action)
- mutual acquiescence in boundary (in trespass action)
- statutory immunity (under applicable state or federal law)
- unconstitutional (relating to statute allegedly violated)
- insanity (normally in criminal context, but may have some application in civil suits linked to criminal acts)
- self-defense (in assault, battery, trespass actions)
- permission/invitation (in assault, battery, trespass actions)
- agency
- Section 2-607 UCC acceptance of goods, notification of defect in time or quality within reasonable time
- at-will employment
- breach of contract
- hindrance of contract
- cancellation of contract/resignation
- circuitry of action
- discharge (other than bankruptcy)
- election of parties
- election of remedies
- joint venture
- lack of authority
- mutual mistake
- no government action
- privilege
- reasonable accommodation
- retraction
- safety of employee (ADA)
- statutory compliance
- no damages (where required element of pleading)
- termination of employement
- undue burden (ADA)
- wrong party
- implied repeal of statute (see In re: Stock Exchanges Options Trading Antitrust Litigation, 317 F.3d 134 (2d. Cir. 2003) (hat tip Bill Shea)
- failure to take advantage of effective system to report/stop harassment (in Title VII actions, called the Faragher-Ellerth defense) (see Jones v. D.C. Dept. of Corrections, 429 F.3d 276 (D.C. Cir. 2005) (hat tip Bill Shea)
- fair use (copyright).  See, e.g., Campbel, aka Skywalker, et al. v. Acuff-Rose Music, Inc., 510 U.S. 569, 590 (1994).  (hat tip Bill Shea)
- Noerr-Pennington defense (antitrust) (a Sherman Act defendant can raise the affirmative defense of right to petition for redress, even if they use that right to try to gain an anti-competitive advantage).  See Noerr-Pennington Doctrine (2009), ABA Section of Antitrust Law, at p.107.  (hat tip Bill Shea)
- Same decision defense (employer would still have fired employee for lawful reasons even if the actual firing was for a mix of lawful and unlawful reasons) (Mt. Healthy City School Dist. Bd. of Ed. v. Doyle, 429 U.S. 274 (1977)) (hat tip Bill Shea)
- ignorance of the law.  Ignorance of the law is rarely a defense to liability, but if proven, ignorance that racial discrimination violates federal law may be a defense to punitive damages in Title VII cases.  See, e.g. Alexander v. Riga, 208 F.3d 419, 432 (3d Cir. 2000) (hat tip Bill Shea)
- business judgment rule (hat tip Iain Johnston)
- claim of right (defense to element of intent required to prove theft)

Jeff Vail is a Colorado business litigation attorney at The Law Office of Jeff Vail LLC.

This post is part of my Colorado litigation checklist approach to litigation knowledge management and litigation strategy.


S. said...

What an incredible list! I can't even remember what one or two of these mean anymore.

Wyckoff said...

Thanks for sharing such a comprehensive list. Big help.

Anonymous said...

Thank you, and bless you! I have utilized your site on no less than 3 occasions, each time finding it more valuable than the previous one. Acting pro se in several actions, wherein I have been turning the tables on several individuals who over a number of years left us penniless, bereft of our reputation, and my wife with significant medical conditions, we have found your site invaluable. You're the best!

Anonymous said...

I can't say I'm a litigious pro-se litigant, but I am an attorney and I found this list quite helpful.

Anonymous said...

Did I miss Fraud in the inducement?

Anonymous said...

Fraud in the inducement?

Ambassador Basadar said...

See: Claim of Right

Marco Brown said...

Very, very cool. Thank you for sharing. You deserve mad props for this, man.

Chambers Street said...

I see fraud in the inducement

grubster411 said...

I have a question... I am a pro se plaintiff, in a federal court in montana for various counts... from a 1983 claim, to negligence, to slander. etc..

I have survived the barrage of bs, including their frivolous motion to dismiss claims... their claims of immunity etc.

We are in discovery as we speak, with a scheduling order complete and a trial date in June of 2013.

They gave me a "laundry list" of bs affirmative defenses. I did not make any motion to strike.

I amended my complaint, and will have the answer tomorrow.. assuming it has all the same bs affirmative defenses.. am I to make motion to strike? am I in danger if I don't mention anything at all?

Please advise if you would on this procedural step.

Risa Osborn said...

Technological innovation of course is usually better-suited to handle precise litigation knowledge, with in-person training and guidance being more effective to exchange tacit litigation knowledge.

Centinel said...

I'm going to go with "corporate shield defense" -- one of my personal favs.

Anonymous said...

If fraud in the inducement is a separate item as compared to fraud (generally, as an equitable defense), then the list should likely include fraud in the execution as a separate item?

Anonymous said...

Great list. I think the defense attorney in my case must have come onto your website. He used 26 affirmative defenses in his answer. While I do agree that these can come in handy, if an attorney goes overboard with them (the "laundry list")I believe it only serves to make them look bad and like scumbags. Which next thought is the only reason they would go so out of their way to just come across as scumbags is because they are guilty and don't have an adequate defense to the complaint against them.

Anonymous said...

What affirmative defense can be used in the event of a medical condition? My son takes seizure medication which causes IBS. He was recently charged with defecation in public (but was trying to hide behind a bush). Thank you for your website!

NY Personal Injury Attorney said...

I wanted to thank you for this great read!! I definitely enjoying every little bit of it I have you bookmarked to check out new stuff you post.

Julie Mills said...

Standing is not an affirmative defense because the plaintiff has the burden of proof on standing. Standing is properly addressed by a denial or motion to dismiss.

"A defense which demonstrates that plaintiff has not met its burden of proof as to an element plaintiff is required to prove is not an affirmative defense."

Quoting Zivkovic v. S. California Edison Co., 302 F.3d 1080, 1088 (9th Cir.2002).

Bear said...

Just saw two more in a bank note litigation matter: (i) defense of "superior financial interest" and (ii) defense of contractual disclaimer.