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Boilerplate Defenses: Friend or Foe?

By George Khoury, Esq. | Last updated on

Filing an answer to a complaint is easy, right? Just deny everything, cut and paste in every affirmative defense available, do a find and replace for your clients' names, and viola! you're done.

But what happens if one of your boilerplate affirmative defenses just doesn't fit? Should you assert a laches defense if your client is sued within a week of an incident? Will the plaintiff move to strike, seek sanctions, or worse, call you out on social media? Oh the humanity!

Don't Sweat the Social Media

A sad fact of being a defense attorney is that you have to be willing to take a few punches on behalf of your client (fortunately not literal punches). Yes, that means you have to be the mean lawyer who suggests that children may have brought abuse upon themselves.

It's unfortunate that the media clearly doesn't get how litigation works, but it's your job to be the bad person that suggests an unpopular opinion or possibility. Your client can't do that without being seen as a real monster. And if you don't know the universe that your case exists in, pleading something seemingly extraordinary as an affirmative defense (like a contributory negligence defense to a civil child abuse claim) could be what saves the day. Although some lawyers think doing so is in poor taste, others disagree.

There are some really twisted people out there. There are also quite a few people who know how to abuse the legal system, and take advantage of lawyers. Not pleading an affirmative defense because it might offend the sensibilities of social media is doing your client a disservice.

Use'em or Lose'em

Affirmative defenses, if not pled, are deemed waived. Sure, you can try to amend your answer, but the common, failsafe logic is to plead every affirmative defense that has even the remotest possibility of success.

The rationale behind taking the shotgun approach to an answer is quite simple. A plaintiff has the entire statute of limitations period to prepare and file their complaint. In comparison, a defense attorney usually only has a couple days, if that, to prepare an answer (or motion to dismiss). Defense clients are notorious for waiting until the eve of a deadline to retain an attorney.

Regardless, even if given the entire time allotted to file an answer, the amount of information available pre-discovery does not enable a defense counsel to truly grasp the universe of possible defenses (though if there have been a few rounds of law and motion, it might be a different story).

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