This post is the sixth in a seven-part series written to explain how affirmative defenses are used in answering a lawsuit. Other topics in this series are listed below.
Post 1: The Basics of Drafting an Answer
Post 2: Dilatory Pleas
Post 3: Special Exceptions
Post 4: The General Denial
Post 5: Verified Denials
Post 6: Affirmative Defenses
Post 7: Counterclaims, Crossclaims, and Third-Party Claims
When answering a claim, a defendant may present an affirmative defense, which is a specific reason that the plaintiff’s case should not win. It states that even if what the plaintiff says is true, underlying reasons and facts invalidate the claim. A defendant can admit the truth of an allegation but avoid the consequences. If the statute of limitations has run out, for example, or the plaintiff has committed waiver, the defendant may admit liability, but he or she avoids being held accountable for the allegation. When claiming an affirmative defense, the defendant has the burden of proof and must be the party to plead it.
Rule 94 of Texas Rules of Civil Procedure outlines affirmative defenses:
"In pleading to a preceding pleading, a party shall set forth affirmatively accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of consideration, fraud, illegality, injury by fellow servant, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, waiver, and any other matter constituting an avoidance or affirmative defense. Where the suit is on an insurance contract which insures against certain general hazards, but contains other provisions limiting such general liability, the party suing on such contract shall never be required to allege that the loss was not due to a risk or cause coming within any of the exceptions specified in the contract, nor shall the insurer be allowed to raise such issue unless it shall specifically allege that the loss was due to a risk or cause coming within a particular exception to the general liability; provided that nothing herein shall be construed to change the burden of proof on such issue as it now exists."
Other affirmative defenses are possible as well, depending on the particulars of the case. Fully understanding and pleading affirmative defenses in Texas requires someone familiar with all the complexities of litigation. A lawyer with such expertise will correctly use affirmative denials to help a defendant successfully oppose various allegations and claims.
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