by Wilton H. Strickland

It goes without saying that litigation is contentious. Defendants in particular have a strong motivation to fight, for they are confronted with a public claim that paints them in a negative light and often threatens them with ruinous damages. While the resulting cocktail of emotions is understandable, it should not drown out the objectives of defensive pleading, which are simplicity and clarity.

The affirmative defense is one tool of pleading that has been abused and stretched far beyond its intended purpose, apparently on the belief that doing so represents vigorous advocacy. Vigor, though, is not the same as effectiveness. In this article I will briefly review what the affirmative defense is designed to accomplish so that defendants (as well as plaintiffs facing counterclaims) can isolate the issues in contention and litigate more effectively.

A responsive pleading contains two parts: the answer, and the affirmative defenses. In the answer, the defendant addresses each of the complaint’s allegations and often denies many of them. In the affirmative defenses, the defendant’s task is not to deny the allegations all over again. Quite the opposite, as the defendant temporarily concedes that the allegations are correct but argues that the plaintiff remains unentitled to some or all of the claimed relief. In layman’s terms:

• Answer: “I didn’t do it.”

• Affirmative Defense: “I did it, but you still lose.”

The affirmative defense is the offspring of what the old common law labeled as “confession and avoidance,” meaning that the defendant admits the complaint’s allegations rather than denies them. As one court explained it:

An affirmative defense raises matters extraneous to the plaintiff’s prima facie case; as such, they are derived from the common law plea of ‘confession and avoidance.’ . . . On the other hand, some defenses negate an element of the plaintiff’s prima facie case; these defenses are excluded from the definition of affirmative defense in Fed.R.Civ.P. 8(c).

In re Rawson Food Serv., Inc., 846 F.2d 1343, 1349 (11th Cir. 1988) (citations omitted).

This is the chief error that many defendants make in their affirmative defenses: duplicative denials of the plaintiff’s allegations. Such denials are often littered throughout affirmative defenses but do not qualify as such. See Reed v. Dollar Gen. Corp., No. 8:05-cv-1440-T-24 TBM, 2005 U.S. Dist. LEXIS 48170, at *4 (M.D. Fla. Aug. 23, 2005) (“[T]his defense is incorrectly labeled as an ‘affirmative’ defense, because ‘[s]aying that someone else is really the negligent actor is obviously not a confession and avoidance, the essence of a true affirmative defense'”); Reinsdorf v. Skechers U.S.A., Inc., 296 F.R.D. 604, 619 n.11 (C.D. Cal. 2013) (“A defense which demonstrates that plaintiff has not met its burden of proof is not an affirmative defense. . . . [D]efenses which merely ‘negate an element of the plaintiff’s prima facie case . . . are excluded from the definition of affirmative defense in Fed. R. Civ. P. 8(c)'”) (citations omitted).

For example, if a plaintiff alleges that the defendant punched him, an affirmative defense would be that the punch was in self-defense, not that the punch was thrown by somebody else. If a plaintiff alleges that the defendant negligently crashed into the plaintiff’s car, an affirmative defense would be that the plaintiff’s own negligence overshadows the defendant’s, not that the defendant is innocent. If a plaintiff alleges that the defendant committed fraud, an affirmative defense would be that the claim is stale and violates the statute of limitations, not that the defendant honestly believed what he said.

So the affirmative defense is just that, affirmation rather than denial. By keeping denials contained within the answer rather than allowing them to migrate into and clutter the affirmative defenses, defendants can tighten the focus of litigation and help it run more smoothly. The alternative is to get bogged down in motions to strike the affirmative defenses or in last-ditch efforts to draft clear instructions for the jury, neither of which helps anybody.