Vail Daily column: Understanding ‘affirmative defense’ |

Vail Daily column: Understanding ‘affirmative defense’

An “affirmative defense” seems oxymoronic, doesn’t it? A defense is, well, defensive — something that puts you back on your heels. And something “affirmative” favors a little forward motion, something tilting, assertive and aggressive — something with its chin out, “leaning in,” if you will. And yet the two — “affirmative” and “defense” — knit together in the law, like “bitter” and “sweet” do in the making of dark chocolate.

What, then, is an affirmative defense? Well, to understand it, you have to have a little context and you have to understand what comes before.

A lawsuit is broken into sections if you will by “jurisdictional allegations,” “general allegations,” various “claims for relief” and a “prayer” — yes, a “prayer” — for relief.


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“Jurisdictional allegations” establish venue and jurisdiction. Venue establishes the place where a particular suit should and may be heard. “Jurisdiction” establishes that the particular court before which a matter is brought has the authority to hear the matter and the power to decide it. The jurisdictional allegations, then, inform the court that the place is the right one to hear the particular matter and that the court before whom it is brought is invested with the authority to hear and decide it.


“General allegations” set forth the factual matters necessary to give the suit its texture. Essentially, “this happened, and then that happened which brings the parties to the unhappy place in which they find themselves.” The general allegations are the factual skeleton upon which the legal muscle, tendon and sinew are hung. There may be many claims for relief contained within a single lawsuit, and the claims may be alternative and contradictory. What the plaintiff does to some degree is shoot his legal theories with a shotgun, in essence saying to the court, “here are several legal theories under one or several of which I may be entitled to relief.”

Each claim for relief is like a little packet consisting of various allegations which together constitute a discrete legal theory upon which “relief” may be granted. Each allegation says, in essence, that the defendant did so-and-so and, in doing so-and-so, satisfied an “element” necessary to fulfill the requisites of the particular theory under which the claim is based. An “element” is a building block. When all the building blocks of a particular claim are stacked up, the requisites constituting the legal theory under which claim is made are satisfied. “Relief,” by the way, is what the party is asking the court to do, whether it is to award money damages or to do something else (for example, issue an injunction). And a “prayer for relief” is simply a formal way of asking the court for the satisfaction requested.


An example might help here. Say I’m a builder and you — the owner — breach a construction contract with me. We can’t work things out informally and I sue you to collect the money I claim you owe me. Among other claims for relief, I will likely sue you for breach of contract and quantum meruit (the fair value of the benefit I have bestowed on you). Both the contract claim and the equitable claim are based on separate legal theories and are, accordingly, separate claims for relief, each of which potentially entitles me to damages. In articulating my position, I lay out the following: jurisdiction and venue are proper and I inform the court why that is so, generally citing statutory authority to support the proposition that this court in this place should hear the matter. Next, I spell out the facts: we had a contract between us, I did the work, you didn’t pay, etc. These constitute the general allegations.

The claims for relief in this case — breach of contract and quantum meruit — each have different elements which must be satisfied to support the claim; in the claims for relief, I spell out how each has been satisfied under the facts. Each claim may independently entitle me to damages.

Lastly, I ask (or pray) the court for relief. These are the damages I want and the damages under each particular claim which are supported by the facts and by the law.

The ‘Answer’

OK. The suit has been filed. Now the defendant prepares an answer. The “answer” is comprised of three essential parts. First, the defendant must either admit or deny each allegation within the complaint. He can admit some, deny others and still deny even others on the basis that he is apprised of insufficient facts to either admit or deny the particular allegation. Next, the defendant may articulate certain “affirmative defenses.” At last, circuitously, we reach our destination, the happy land of affirmative defenses.

An “affirmative defense” is a matter which, assuming it is true, constitutes a defense to one or more claim articulated in the complaint. Let’s take a simple example; every claim has a certain time limit within which it must be brought. This is known as a period of limitations and is delineated in various statutes of limitation. Simply, the limitations period “limits” the time within which a claim may be brought under the relevant statute. Let’s say that, here, the statute of limitations for a particular claim is two years. You sue me under that legal theory or claim and I assert the affirmative defense that, “Hey, you’re too late; the applicable statute of limitations here is two years and you didn’t file the suit until three years after the event.” If my assertion (that is, my affirmative defense) is true, then it is a defense which defeats your claim.

Prayer For Relief

Lastly, an answer is comprised of an alternative or competing prayer for relief. The defendant presents to the court what he would like to see as the outcome of the suit which, at the least, is generally that the defendant gets off scot-free (the term, by the way, though not really a legal one, derives from the Old English tax a “sceot”; one who got off “scot-free” avoided payment of the “scot and lot” tax levied by municipalities on its citizens).

If the general allegations of a lawsuit are the skeleton upon which the meat and substance of the claims for relief are hung, then the affirmative defenses are the sharpened scalpels honed to vivisect the newly animated golem. It is the parry to the plaintiff’s thrust and the first among the many skirmishes that will comprise the flowering of the newly commenced litigation.

Rohn K. Robbins is an attorney licensed before the bars of Colorado and California who practices in the Vail Valley with the law firm of Stevens, Littman, Biddision, Tharp and Weinberg LLC. His practice areas include business and commercial transactions, real estate and development, family law, custody, divorce and civil litigation. He may be heard on Wednesdays at 7 p.m. on KZYR radio (97.7 FM) and seen on ECOTV 18 as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at either of his email addresses, or

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