Avoiding Malpractice: Affirmative Defenses


In my trial consulting practice, I’ve found that plaintiff’s attorneys pay disproportionate attention to the complaint and the response, if any, to the affirmative defenses is an afterthought. This is a dangerous oversight, particularly if the case doesn’t settle. Consider the following:

    • Defendants routinely plead “failure to state a cause of action” as a defense. Usually there is no elaboration about the complaint’s deficiency. If the case doesn’t settle, a defendant could conceivably seek a dismissal during trial on the paper allegations alone. Lesson: plaintiff’s attorneys should never let stealth defenses get very far. The rules in most states permit a “failure to state a cause of action” affirmative defense to be called up for hearing. Do it! Never go to trial with the sufficiency of the complaint still left as an open question.


    • Plaintiff’s attorneys often let the sufficiency of other affirmative defenses go unchallenged. Defendants often plead every defense imaginable, whether or not it applies in a given case. Defendants typically allege affirmative defenses in a bare bones fashion. Many jurisdictions require defenses to be pled at the same level of factual sufficiency as the complaint. Plaintiff’s counsel should not be afraid to use a motion to strike affirmative defenses. If nothing else, the factual basis for an affirmative defense must be flushed out in discovery and defendants must be pressed if they provide equivocal answers. Failing to do this will lead to surprise at trial and possibly a malpractice claim for failing to anticipate and prepare for the defense.


  • Many plaintiff’s attorneys do little more than file a pleading denying affirmative defenses when they should be filing a reply. Let’s go back to the basics. A defendant will often plead an affirmative defense, even if the facts alleged by the plaintiff are true, if there are other yet-to-be alleged facts that can provide a partial or complete defense. Think for instance of the seatbelt defense in automobile accident cases. A reply is an affirmative defense to an affirmative defense. There may be situations where additional facts can allow the plaintiff to avoid a defense. For instance, a defendant might plead an insurance policy exclusion in a coverage case. If the facts support it, plaintiff’s counsel could plead waiver of the exclusion in a reply. Keep in mind that not all jurisdictions allow a reply, most importantly, the federal courts. Check your state’s rules of procedure.

Once buried in discovery and depositions, it’s easy to lose sight of the pleadings. This can be a deadly malpractice trap. Sometimes the facts will not be completely known at the outset. In such instance, counsel should be prepared to amend or seek leave to file a reply. In other words, the pleadings must be monitored during the course of discovery and investigation. Having an awareness that affirmative defenses must be carefully considered is the starting point for avoiding these traps and gaining a winning edge.