Doe Defendant is liable (this may require a Plaintiff to make a “doe amendment” and add an additional defendant). AZ Bar Lic. Truth (is a defense in a defamation lawsuit) (Click here for a list of four defamation defenses to be aware of), 66. – preemption – unclean hands Attorney Steve Litigation Tip:  Keep in mind a Plaintiff can always file a Demurrer (see video below) against any affirmative defenses that are just raised in boilerplate fashion in Defendant's answer (although this does not usually happen, it can). But simply listing affirmative defenses is not enough. Our firm handles a wide variety of intellectual property and entertainment law cases from music and video law, Youtube disputes, DMCA litigation, copyright infringement cases involving software licensing disputes (ex. 45. DMCA copyright infringement “safe harbor” – if you are an online service provider (“OSP”) and you have a registered agent for service of copyright complaints, and a process for rejecting repeat offenders (ex. 14. 68. Here is a list of the most common defenses at the exact element each is aimed at (some may overlap): Subject Matter Defenses. Some types of privilege may include raising self-defense in an intentional tort case. This is a very common defense you see many defendants raise. Make sure to SUBSCRIBE to our popular YouTube legal channel. 96, 100 (Ct. App. – frustration of purpose In other words, “you know you had a right to sue why did you wait three years to sue me for breach of contract.”  If the delay was unwarranted, and prejudicial to the Defendant, who knows the court might buy it. 37. As between Defendant and Plaintiff, the equities do not preponderate in favor of Plaintiff as to allow recovery. 48. Many of the defenses are interchangeable to various causes of action and sometimes you have to be creative in defending yourself. – lack of causal relationship – no government action At any rate, this is an issue you can discuss on a meet and confer with opposing counsel if they persist in not wanting you to allege defenses that you believe may, or do apply to the case. – lack of privity “Under the doctrine of superior equities, although an insurer might have a subrogation interest in the insured's claim against the party that caused the loss, it cannot enforce its subrogation rights unless it has equities superior to those of the wrongdoer.” (Id. 242, 246–47 (Bankr. Any past results discussed herein do not guarantee or predict any future results. – release See Farmers Ins. Below, please find a list of common affirmative defenses. To claim an affirmative defense a defendant typically must meet several requirements. Defense of necessity (to prevent a nuisance, or trespass to chattels) – For example, you were protecting your person or property from damage that another person reasonably appears intent to inflict. See United States v. Ibarra-Pino, 657 F.3d 1000, 1004–05 (9th Cir. – sole negligence of co-defendant Chris did not raise condonation or antenuptial knowledge as an affirmative defense in his pleadings. 52. Failure to plead fraud with specificity, 75. – injury by fellow servant pp. – adverse possession (in trespass action) At any rate, for now, we hope this list is helpful if you are litigating a case or are in arbitration or mediation. – release These statements must be sufficient to warrant relief from the court. Judicial Estoppel – This is the defense to raise when a Plaintiff or Defendant changes their arguments and position during the course of a litigation – which happens more than you might think. These defenses are not an exhaustive list of defenses that may be raised, and should not be considered to construe legal advice or be used as a substitute for your own research or the advice of an attorney. The gist of this defense is “even if everything the complaining party is saying is true, there is still no legally recognizable claim, so the lawsuit must be dismissed without leave to amend.”  Note: Judges will normally give you leave to amend if there are some facts that can add that might make your cause of action worthy to be considered. 2010) 609 F3d 1011, 1023; Woodfield v. Bowman (5th Cir. 85. – contributory or comparative negligence 9. Affirmative Defense. 4th 401, 430, 115 Cal. – collateral source rule (common law) or as codified in statute (see, e.g., C.R.S. However, the acts of the third party hacker/criminal who stole from the computer and misused data may be deemed the intervening cause which could “break the causal chain of liability” and the Defendant who was hacked might have no legal liability. Two types of affirmative defenses in a criminal case. List of Affirmative Defenses (Partial): Colorado – failure to state a claim upon which relief may be granted (almost always use) – statutory defenses prerequisites (these will vary depending on the claims) – preemption by federal or other law – accord and satisfaction – arbitration and award – assumption of risk – economic loss rule 90. These statements must be sufficient to warrant relief from the court. This list is long. Undue influence – some exerted undue force and influence over you forcing you to do something that was illegal. THANK YOU ALL FOR YOUR TREMENDOUS SUPPORT, COMMENTS AND ENTHUSIASM!! These defenses are known as compulsory affirmative defenses and include: Accord and Satisfaction, Arbitration and Award, Assumption of the Risk, Contributory Negligence, In some cases, you might get an aggressive Plaintiff lawyer who wants to bill up a storm (possibly copying multiple associates on an email), and will threaten to file a “Motion to Strike” your affirmative defenses if you don't amend your affirmative defenses to add more facts (it might be noted that they have not set forth all their facts in the complaint, as all that is needed is a “short and plain” statement of the facts to give notice of the claim), yet these same litigation attorney might want to play the bully by forcing you to allege every single fact you know. (3) An agreement for the leasing for a longer period than one year, or for the sale of real property, or of an interest therein; such an agreement, if made by an agent of the party sought to be charged, is invalid, unless the authority of the agent is in writing, subscribed by the party sought to be charged. Youtube has a three copyright strikes and you are booted off their platform) then you may be immune from copyright infringement lawsuits under the “Safe harbor” provisions. Affirmative defenses contrast with negative defenses, which assert that a crucial part of the accusation is incorrect. – product was unavoidably unsafe As a litigant, either plaintiff or defendant (or if you are involved in an arbitration or mediation). An affirmative defense stating simply “Plaintiffs' claims are barred by the doctrine of res judicata” gave plaintiff “fair notice” of the defense. Parol evidence (Plaintiff's claims are barred by the Parol evidence rule. A plaintiff sets forth a claim in a civil action by making statements in the document called the complaint. Doctrine of Superior Equities (applies when an insurance company is trying to recover losses they suffered after they pay off an insurance claim). 2d 743, 746 (1999), as modified on denial of reh'g (Jan. 3, 2000). Go here if you were looking for our LITIGATION WHITEBOARD VIDEOS. Please note we cannot respond to all emails. Decisions to hire an attorney should never be based on advertising alone. Believe me, I just knocked out a major law firm on a Anti-SLAPP motion and hit a $19,000 attorney fee award because they had no idea what they were filing against my Client to try to stop his Right of Publicity claim. [FRCP 8(b)(1)(A); “Fair notice” requirement: An affirmative defense must be pleaded with enough specificity or factual particularity to give plaintiff “fair notice” of the defense being advanced. False claims (Plaintiff's claims are barred as a matter of law as the complaint makes numerous blatantly false claims). This is a great resource if you are either involved in a lawsuit, or legal action appears to be “brewing” and you want to know what potential defenses to various causes of action might be. Failure to state a claim upon which relief can be granted (meaning, even if all the facts pleaded are true, there is still no legal grounds for recovery). 4th 970, 974, 90 Cal. – discharge in bankruptcy Click here to read about indemnification in the context of software infringement. – fraud in the inducement Truth in Lending Recoupment (“TILA”). In criminal prosecutions, examples of affirmative defenses are self defense, insanity, and the statute of limitations. Fraud, must be sufficient to warrant relief from the court, 119 S.Ct asserted, with! Certain statutory violations are present a different road locked out of the most common affirmative defenses including. 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