Vail Law: What’s an affirmative defense? |

Vail Law: What’s an affirmative defense?

Rohn Robbins
Eagle County CO, Colorado

EAGLE COUNTY, Colorado ” An “affirmative defense” seems almost oxymoronic, doesn’t it? A defense is, well, defensive ” something that puts you on your heels. And something “affirmative” favors a little forward motion, something assertive and aggressive. And yet the two knit together in the law, like “bitter” and “sweet” do in the making of dark chocolate.

To understand an affirmative defense, you have to have a little context and you have to understand what comes before.

A lawsuit is broken into sections ” jusidictionaly allegations, general allegations, various claims for relief, and a prayer for relief.

Jurisdictional allegations establish venue and jurisdiction ” the place where a particular suit should and may be heard, and that the particular court before which a matter is brought has the authority to hear and 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.” This is 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 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 in place, 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 be to award money damages or something else. And a “prayer for relief” is simply a formal way of asking the court for the satisfaction requested.

Here’s an example

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 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.

In articulating my position, I lay out the following: jurisdiction and venue are proper and I inform the court why that is so. Next, I spell out the facts: We had a contract, I did the work, you didn’t pay, I timely filed a mechanic’s lien, etc. These constitute the general allegations.

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.

Here’s the answer

The suit has been filed, so now the defendant prepares an answer, which 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 deny still 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, we reach our destination.

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 statute of limitations.

Using the above example, let’s say that the statute of limitations for this 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, then it is a defense which defeats your claim.

Finally, 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.

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 comprise the flowering of the litigation.

Rohn K. Robbins is an attorney licensed before the Bars of Colorado and California who practices in the Vail Valley. He may be heard on Wednesday nights at 7 p.m. on KZYR radio (97.7 FM) as host of “Community Focus.” Robbins may be reached at 970-926-4461 or at his e-mail address:

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