Robbins: Unclean hands and other affirmative defenses | VailDaily.com
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Robbins: Unclean hands and other affirmative defenses

Where to start?

In a civil lawsuit, or criminal charge, an “affirmative defense” is a fact or set of facts other than those alleged by the plaintiff or prosecutor which, if proven by the defendant, defeats or mitigates the legal consequences of the defendant’s otherwise wrongful or unlawful conduct.

In plain English, an affirmative defense is a thing, if proved by the defendant, that will block, defeat or at least lessen the wrong of which the defendant stands accused. It is the deflected pass of litigation without which the touchdown might have otherwise been scored.



Nonetheless, the term, “affirmative defense”, seems sorta oxymoronic. A defense is, well, defensive — something that puts you back on your heels. While something “affirmative” favors a little on-your-toes forward motion, 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.

To understand affirmative defenses, you have to first have a little context. 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 hands-steepled-beneath-the-chin “prayer” — for relief.

“Jurisdictional allegations” establish where and in what court a particular lawsuit should and may be heard. Jurisdictional allegations inform the court that the place is right to hear the particular matter and that the court before which it is brought is invested with the authority to hear and decide it. Criminal actions, for example, are generally brought within the county where the alleged crime was supposedly committed and, depending on the nature of the crime, may be heard in the particular state’s higher or lower court.

“General allegations” are the factual matters that give a lawsuit context. Essentially, “this happened, and then this and that happened which brings the parties to this unhappy place.” The general allegations are the factual skeleton upon which the legal muscle, tendon and sinew are hung.

“Claims for relief” are the various legal theories upon which, if the facts support it, may give rise to the plaintiff coming out on top. There may be many — at times alternative and contradictory — claims within a single lawsuit. To some degree, legal theories are scattered with a shotgun approach, in essence saying to the court, “Here are several hypotheses under one or several of which I may be entitled to a verdict in my favor.”

Each claim for relief is like a little packet tied up with a pretty bow that consists of various allegations which, taken together, constitute a discrete legal theory upon which “relief” may properly 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.

As in chemistry, 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 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 and so 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, unjust enrichment, and foreclosure of a mechanic’s lien.

Each of the claims is 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 between us, 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 example are breach of contract, unjust enrichment, and foreclosure of the lien. Each has different elements or building blocks which must be satisfied in order to support the claim in advancing my case and I will 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.

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 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, circuitously, we reach our destination, the happy promised 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. It is the extended finger tipping away the spiral of the perfect forward pass.

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 must 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 the time has run.” If my assertion (that is, my affirmative defense) is true, then it is a defense which defeats your claim.

Unclean hands? Yep, that’s another of several possible affirmative defenses. It is a defense that bars relief to a party who has engaged in inequitable behavior (including fraud, deceit, unconscionability, or bad faith) related to the subject matter of that party’s claim — kind of a kettle calling the pot black defense.

There are many others which can and may be deployed in proper circumstances.

If the general allegations of a lawsuit are the skeleton upon which the meat and substance of the claims are hung, then the affirmative defenses are the sharpened scalpels honed to vivisect the newly animated golem. They are the defendant’s parry to the plaintiff’s thrust. They are the, “Hey, not so fast! There’s more to this than the plaintiff would have the Court believe!”


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