This is the third part in a 3 part series looking at the importance of telling stories in the field of litigation. The first part looked at how the process begins and the second article examined the Motion Practice And Its Pitfalls, which brings us to the last part of the discussion. In this article, we will look at the answer aspect of the story in regards to litigation.
Answering Allegations in the Complaint
Assuming that the defendant has not moved against the complaint or that some version of the complaint has survived motion practice, it is time for the defendant to answer the plaintiff’s allegations. The answer is, like the complaint, a formal and technical document that can consist of several parts. In the first part, the defendant must answer each allegation of plaintiff by admitting it is true, admitting that part of it is true, and denying those parts of the allegation that the defendant does not agree is true. Defendants can also answer by saying they do not have sufficient information to admit an allegation, that it’s a legal conclusion not requiring a response, or that it is an allegation of law or from a document and that item speaks for itself. Defendants also often put an introduction in their answers that summarizes their story before going into the specifics of the answer. This is a good approach because it breaks through the formality of the answer, but it needs to be prepared carefully so that the story is accurately stated and stays true to the litigation positions the defendant takes in the rest of the case. One of the worst things that can happen is later being contradicted by one’s own pleading positions.
Similar to pleading a complaint, answering allegations is more art than science. The active participation of the client is required to allow the defendant’s lawyer to correctly answer each allegation. The defendant’s lawyer must thoroughly interview and investigate the client for the answer to be prepared correctly. This is on top of the investigation that has to occur at the beginning of the case before motion practice.
The goal of answering allegations is to deny them if possible or admit them narrowly and perhaps with a counter-allegation. The purpose of this approach is to weaken the plaintiff’s story and to set the case up for discovery motions and final resolution. This approach also is to make sure not to admit accidentally any allegation that could be dispositive in favor of the plaintiff. But it is critical to keep in mind that the lawyer and the client have a duty to answer allegations truthfully and in good faith. If an allegation is factually true the defendant must admit it, no matter how painful.
Often the defendant has arguments that the plaintiff should not recover other than denying the allegations in the complaint. These arguments need to be stated in the answer as affirmative defenses, and the plaintiff has a chance to respond to them in a motion to strike or a reply. Two of the more common affirmative defenses are the statute of limitations and claim preclusion. Both require proof of facts not already stated in the complaint or the first part of the answer. To plead the statute of limitations defense, for example, the defendant must allege that the date the claim happened is earlier than the statute of limitations would allow. To plead claim preclusion, the defendant must allege that plaintiff’s case has already been decided by a court or appropriate administrative agency.
At my last litigation job we had a list of the common affirmative defenses. Whenever a case came in we checked that list against the facts of the case. The danger of affirmative defenses is that some can be waived if they are not either raised in a motion to dismiss or in the first answer. In Oregon and most jurisdictions this would be a defense like the statute of limitations or venue. I always thought our list was a good idea, and I recommend finding one or drafting one to all litigation attorneys.
Getting affirmative defenses right requires factual and legal research. Sometimes they are simple and do not require much work, but in more complex cases there is no such luck. Make sure the attorney does the work needed to plead the defense in a way that advances the basic story, and you will be rewarded later.
Counterclaims, Cross-Claims, and Claims Against Non-Parties
An answer can also be a complaint. The defendant can sue the plaintiff in a counterclaim if the defendant has its own reasons for recovering from the plaintiff. The defendant also can sue other defendants (usually for indemnity from plaintiff’s claims) in cross-claims. And the defendant can sue another person not already in the case for a claim related to the case, most often indemnity. As you can see this can become complex very quickly. Sorting through and keeping track of all these claims is the lawyer’s job, but he or she will need a lot of help identifying and pleading claims in these more exotic situations. In my experience, these types of complex litigation have been relatively rare and in my multiple claim cases have been for insurance coverage. In public litigation, complex pleading like this does not happen as often, but it can and has.
This post has provided a 30,000 foot level look at the way pleadings start the case and need to tell each side’s story, despite complexity and formality. I hope it helps clients and beginning lawyers to understand the goal of pleadings and the basic vocabulary lawyers use to discuss them. After the pleading portion of the case is finished, it is time to move on to discovery, summary judgment, settlement discussions, and, rarely, trial. But more about those will come in future posts. The most important point is that the pleadings and pleading practice set the foundation for all of these subsequent steps. They are where the story must start and remain consistent with them throughout the litigation.
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