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Does an affirmative defense constitute an admission

Chicago, IL |

I am working on an answer to a complaint where the Plaintiff has lied and has a different version of events from me. I would like to respond with an Answer, Counter-claim, & affirmative defenses. My answer denies the majority of the allegations & my counter-claim alleges my version of the facts that state my cause of action.

I would also like to add in some affirmative defenses. But I am worried that they would be regarded as admissions? (b/c aren't affirmative defenses considered YES, I DID, BUT...?).

What I really want to do is deny the Plaintiff's allegations, say my version, and say i am not liable because.... (ie. say, No I did NOT, but, if the court was to find that I did, then here is why i should still not be liable).

Any help would be appreciated.

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Attorney answers 4

Posted

An affirmative defense is not a denial. Rather, it is something that gives color to the other side’s claim (essentially admitting its sufficiency) and then sets forth some new matter exculpating the defendant from liability (statute of limitations is one example).

Any affirmative defense would have to be set forth in your answer. If that answer is verified, any fact admitted in it would constitute a judicial admission that would be binding on you, and incontrovertible.

Limited scope legal representation (sometimes referred to an “unbundling” or “unbundled legal services”) is permitted in Illinois. It allows an attorney to provide some but not all legal services. Specifically, Illinois Rule of Professional Conduct 1.2(c) provides as follows: “A lawyer may limit the scope of the representation if the limitation is reasonable under the circumstances and the client gives informed consent.”

With respect to the lying, see Illinois Supreme Court Rule 137--http://www.state.il.us/court/supremecourt/rules/Art_II/ArtII.htm#137 (I am assuming this is a case pending in state court).

I strongly encourage you to seek out and retain an attorney.

Good luck.

Robert Thomas Kuehl

Robert Thomas Kuehl

Posted

http://www.state.il.us/court/supremecourt/rules/Art_II/ArtII.htm#137

Asker

Posted

So by giving color to the other side's claim (admitting its sufficiency) do you mean... admit that IF the Platinff's alleged facts are assumed to be true (without admitting that it is)...then it is a suffcient cause of action? or does it simply mean that I am admitting to the Plaintiff's alleged facts? but that I have an excuse or mitigating factor. Also is there a way to assert the defense of "unclean hands" w/o asserting it affirmatively and giving the opposing side "color to her claim"?

Robert Thomas Kuehl

Robert Thomas Kuehl

Posted

With an affirmative defense, you would be arguing that, even if the allegations in the complaint are true, there is some new matter that defeats the plaintiff’s claim. While the plaintiff bears the burden of pleading and proving the essential allegations of her prima facie case, you as the defendant would have to plead and prove the requisite facts as to an affirmative defense, which may be inconsistent with denials made. Unclean hands is an affirmative defense and needs to be pled in the answer (or an amended version of same); otherwise, it's waived, generally. Keep in mind, however, that, among other things, that doctrine bars equitable remedies and does not affect legal rights. Hope this helps. Good luck to you.

Posted

No, affirmative defenses are not admissions. Sometimes affirmative defenses have nothing to do with the varying versions of events.

Your ambition to learn enough law on short notice to represent yourself is admirable, but you are playing with fire. The public information available on Avvo complements of the good-hearted attorneys to provide answers can't begin to meet your needs. Nothing short of a full case review consultation and probably representation will be sufficient. Some attorneys provide "unbundled services," meaning they would be willing to prepare your answer and counterclaim for a modest fee. This might be effective for the time being, but then you will be getting into discovery and trial preparation and needing to ask similarly basic questions about civil court procedure.

Best wishes for a favorable outcome, and please remember to designate a best answer.

This answer is offered as a public service for general information only and may not be relied upon as legal advice.

Asker

Posted

thanks for the kind response. unfotunately, the 3 attorneys I consulted with all want too high retainers....$30k+. I can't afford that so I have no choice but to try my best as pro-se.

Paula Brown Sinclair

Paula Brown Sinclair

Posted

Do you understand "unbundled services?"

Asker

Posted

thank u for your advice. I will ask about unbundled services. or maybe....an atty will be willing to look over my draft work for a fee? have u heard of any attys doing that?

Posted

No, affirmative defenses aren't admissions. Admissions are admissions. Afformative defenses need to part of your answer, and there's little downside to including them other than that you may have to respond to discovery requests about them, whereas if you omit them, they'll be waived.

Also, a counter-claim requires more than simply disputing the plaintiff's alleged facts-- you still need causes of action entitling you to some relief, and if you lack those, you're setting yourself up for demurrers or motions to dismiss.

If this regarding a contract and the plaintiff has a lawyer and your contract has an attorney's fee clause, you really need to hire your own lawyer. I agree with my colleague that this isn't a DIY job. If plaintiff has a lawyer, you're going to get out-litigated, and quite possible quickly, and if you make mistakes and/or protract the litigation, you'd be on the hook for their side's fees. If you get your own lawyer and plaintiff is trying to DIY this, you can be the one that does the out-litigating and gets to add on the legal fees.

Avvo doesn't pay us for these responses, and I'm not your lawyer just because I answer this question or respond to any follow-up comments. If you want to hire me, please contact me. Otherwise, please don't expect a further response. We need an actual written agreement to form an attorney-client relationship. I'm only licensed in CA and you shouldn't rely on this answer, since each state has different laws, each situation is fact specific, and it's impossible to evaluate a legal problem without a comprehensive consultation and review of all the facts and documents at issue.

Posted

Affirmartive Defenses are not admissions. Assert them at the end of your Answer, before the counterclaims, under separate heading "Affirmative Defenses." www.galivanlaw.net

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