When drafting an answer to a civil complaint, you should assert all relevant affirmative defenses. If you don’t, the defense is usually waived in federal court and many state courts. Of course, waiving a relevant defense may subject you to an ethical complaint or a malpractice claim, or both.

One good method to determine which affirmative defenses to raise is to categorize the available defenses. I have listed nine categories below, as well as common affirmative defenses for each category. Neither my list nor the list in Rule 8(c) of the Federal Rules of Civil Procedure is exhaustive.

You Sued the Wrong Party

  • Death of real party
  • Immunity
  • Lack of capacity (e.g., to contract)
  • Misjoinder
  • Privilege
  • Supervening or intervening cause

You Are the Wrong Party

  • Lack of privity
  • Lack of standing

Your Conduct Precludes Recovery

  • Assumption of risk
  • Breach of contract by plaintiff
  • Contributory or comparative negligence
  • Duress
  • Estoppel
  • Failure to give required notice
  • Fraud
  • Unclear hands

You Sued in the Wrong Place

  • Arbitration agreement
  • Personal jurisdiction
  • Subject matter jurisdiction
  • Venue

You Sued Too Early or Too Late

  • Laches
  • Lack of exhaustion (e.g., administrative remedies)
  • Lack of prosecution
  • Statute of limitations
  • Waiver

You Used the Wrong Process

  • No return of service
  • Service of process

You Get Only One Bite of the Apple

  • Claim or issue preclusion
  • Discharge in bankruptcy
  • Lawsuit is pending elsewhere
  • Settlement and release

Your Claim Is Meritless

  • Failure to state cause of action
  • Failure to satisfy condition precedent
  • Full performance
  • Illegality
  • Lack of consideration
  • Rescission
  • Statute of frauds

You Seek the Wrong Remedy

  • Adequate remedy at law
  • Failure to mitigate
  • Statute precludes requested remedy

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