Vail Law: Defending the ‘affirmative defense’ |

Vail Law: Defending the ‘affirmative defense’

Rohn Robbins
Vail CO Colorado

An “affirmative defense” seems almost 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. 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 – jurisdictional allegations, general allegations, various claims for relief, and a “prayer” for relief.

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.

General allegations set forth the factual matters necessary to place the suit in context. Essentially, “this happened, and then this and that happened which brings the parties to this unhappy place.”

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.

Relief, by the way, is what the party is asking the court to do, whether it be 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.

I will likely sue you for breach of contract and foreclosure of a mechanic’s lien. Both the contract claim and the foreclosure claim are based on separate legal theories and are, accordingly, separate claims for relief, each of which potentially entitles me to damages.

The claims for relief in this case are breach of contract and foreclosure of the lien. Each has different elements which must be satisfied to support the claim and in the claims for relief, I spell out how each has been satisfied under the facts. Each claim may entitle me to different 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.

Now the defendant prepares an answer, which has three essential parts. First, the defendant must either admit or deny each allegation within the complaint. He can admit some, deny others and deny still others on the basis that he has insufficient facts to either admit or deny the particular allegation. Next, the defendant may articulate certain “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. The limitations period limits the time within which a claim must be brought under the relevant statute.

Let’s say that 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 application 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, it defeats your claim.

Lastly, an answer includes 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.

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 lead to the flowering of new litigation.

Rohn K. Robbins is an attorney licensed in Colorado and California who practices in the Vail Valley. His practice areas include business and commercial transactions, real estate and development, homeowners’ associations, family law and divorce and civil litigation. Robbins may be reached at 970-926-4461 or at

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