What Are Affirmative Defenses?

Attorney L. Reed Bloodworth is the Founder and CEO of Bloodworth Law with offices in Orlando, Florida, and Winter Haven, Florida. Reed handles:

• Trust Litigation
• Probate Litigation
• Business Litigation
• Employment Litigation

What Are Affirmative Defenses?

Reed answers the question: what are affirmative defenses that are a part of the pleading process in a lawsuit.

1: Lawsuit complaint or petition filed

Reed said that “the first thing that happens in a lawsuit is that someone files a complaint, or in the context of a will contest, they file a petition.

2: Response to complaint or petition

“The respondent or defendant then has to respond to that.

Motion to dismiss or to answer a complaint

“You can respond to it either with a motion to dismiss — if you believe that the petition or the complaint doesn’t set forth the necessary facts and elements to support a claim,” Reed said.

“Or, you answer the complaint and assert your affirmative defenses to it.

Affirmative Defenses = Your Defenses Against Claims

“The affirmative defenses are the defenses to what the petitioner or plaintiff is claiming you did wrong.

Affirmative Defense = Valid Legal Reason

“An affirmative defense is something where it’s not just a denial; it’s having a valid legal reason for doing what you did.

“You file a complaint and in the complaint, there are causes of action: for example, a breach of contract,” Reed said.

Example: a breach of contract damaged the plaintiff

• There was a valid contract
• Breach resulted in damage to plaintiff

“And you have to plead your elements to the breach of contract: One, there was a valid and binding contract. One party breached the contract, and as a result of the breach, the plaintiff was damaged.”

Affirmative Defense has to be recognized by law

That’s similar to when you plead an affirmative defense. An affirmative defense has to be a defense that’s recognized by law. You’ve got to set forth certain elements and supportive facts. You can’t just make a legal conclusion of an affirmative defense.

Reed said that “there are many affirmative defenses when you’re dealing with a breach of contract.

Affirmative defense in breach of contract = attach the contract to complaint

“One affirmative defense to a breach of contract is that you have to actually attach the contract to your complaint. If you fail to do that, then one affirmative defense is the failure to attach document to which you’re relying upon for your breach of contract claim.”

Affirmative Defenses Are Case-Specific & Fact Specific

Then you have many other standard affirmed defenses. When you start talking about affirmative defenses, again, it is case-specific and fact-specific. There are many types of affirmative defenses to different types of claims.

Failure to state a cause of action

A very standard affirmative defense is failure to state a cause of action. What that means, for example, someone filed a lawsuit for a breach of contract. They allege there was a contract that was breached, but they didn’t allege that due to the breach, the plaintiff was actually damaged.

When Elements Aren’t Pled…

“Well, because you didn’t allege that element, we can assert an affirmative defense that says, ‘You did not set forth all of the required elements in your complaint, and therefore, it’s deficient and we should prevail.”

And that can go for any type of cause of action in which the elements aren’t pled.

Affirmative Defenses Are Fact-specific, claim-specific

There are many, many affirmative defenses and they all arise out of the facts and the types of claims made in each case. Affirmative defenses are fact-specific and claim-specific to each case.

Attorney Reed Bloodworth is Founder and CEO of Bloodworth Law. When an argument between parties becomes a legal dispute, it may be time for an attorney to address it. Talk with Reed about how Bloodworth Law can help you, your family, or your business.