What in the world are affirmative defenses?

What in the world are affirmative defenses?
A picture of a man looking at a question mark with the words "What in the world are affirmative defenses?"

You’ll typically find affirmative defenses in Rule 8 of your Federal Rules of Civil Procedure.

Most states tend to follow the guidelines in the Federal Rules of Civil Procedure, but be sure to check on your state’s specific rules. 

For Alabama, the state where we practice, you can find affirmative defenses in Alabama Rules of Civil Procedure Rule 8(c).

But what are affirmative defenses?

I’m the defendant and I say to the plaintiff (the person that sued me) “You may be right” or “Let’s assume you’re right. You still lose because of (affirmative defense)”

A classic example of an affirmative defense is the Statute of Limitations

 I drive a truck while drunk. As a result, I killed someone in a horrible accident. 

Then I am sued for being drunk, malicious, and reckless. 

I decide to use an affirmative defense.

I say, “Yes, you’re absolutely right. I did all of that and I destroyed your body and ruined your life…” 

“…BUT you lose because of the Statute of Limitations. You waited one day too long to sue me.” 

Or it could be that the case has already been litigated and I won, so you don’t get a second chance at suing me. 

If you look in rule 8, you’ll see a list of these examples. 

Affirmative defenses do not challenge whether the plaintiff is correct. 

The defendant is just saying that the plaintiff will still lose because of some other reason such as the Statute of Limitations, previous litigation, etc. 

So, if you’re being sued in a collection case or a foreclosure case in a state which does a judicial foreclosure, you will want to familiarize yourself with Rule 8.

Look at these examples of affirmative defenses and see which ones apply to your situation. 

The general rule is that if you do not plead or put these defenses in your answer or response, then you waive them. 

You have to bring your affirmative defenses up at the beginning or you lose them. You will want to include anything that could be applied

You must tell the plaintiff and the court that you are relying on this affirmative defense. 

There are some more in-depth details to include with your affirmative defense. For the purpose of this article, we are only concerned with defining what an affirmative defense is. 

Just understand that an affirmative defense just says, “Yes, I may be guilty but I win and you lose because of this defense which kills your case.”

If you are the plaintiff, consider what affirmative the other side may raise.

Typically, in my world, I am on the plaintiff’s side unless defending someone who has been sued by a debt collector.

On the plaintiff’s side, we must consider the affirmative defenses the other side may raise and examine the ones they raise to determine if they are legitimate. 

Then, we try to remove the ones we can or turn the defenses around on the defendant to work in our favor. 

How can you turn affirmative defenses around on the defendant? 

In Alabama, we have what is called contributory negligence

You sue somebody for negligence because they ran through a red light and crashed into your car. 

They say, “You know, I did do that. But you were 1% at fault.”

In Alabama, 1% at fault means that you lose and get nothing because of contributory negligence.

If I know the other side is pleading that, I may use that against them in a jury trial. 

I may say, “The defendant hasn’t apologized, they haven’t taken any responsibility for what they did, and now they are blaming my client for the accident. As my client was just sitting there at the red light, they crashed right into the back of their vehicle.” 

How is this my client’s fault?

The defense will say, “You should have seen it coming and moved out of the way. You should have known.”

Flipping their defense against them shows that this was a stupid defense and will make them regret ever pleading it in the first place. 

We hope this is helpful to you!

If you live in Alabama and you have any questions, feel free to get in touch with us.

We would be glad to help you in any way we can.

You can reach us by phone at 1-205-879-2447, or you can fill out a contact form and we will get in touch with you quickly. 

Thanks for reading!

-John Watts

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