Affirmative defenses

[k9hammer]

What is the name of your state (only U.S. law)? Indiana
Hello, I have filed a personal injury case. I recieved a affirmative defence answer. I know what the affirative defence is.. Do I have to answer that?

Thank you,
K9hammer

 

[latigo]

Wouldn’t the fact that you don’t know where to turn at the very threshold of the lawsuit be some indication that you are into something that is WAY OVER YOUR HEAD?!

 

[cosine]

Wouldn’t the fact that you don’t know where to turn at the very threshold of the lawsuit be some indication that you are into something that is WAY OVER YOUR HEAD?!

Maybe. Maybe not. Maybe it's just a procedural point he doesn't know about. He could perhaps find an online forum that provides free advice and ask about it. If there was sensible advice, they'd probably either tell him what the procedure is, or suggest he look up the appropriate civil procedures.

OP: It's your turn. What do you WANT to happen?

 

[davidmcbeth3]

I would answer the affirmative defenses ... with a motion to strike first & then with answer to the affirmative defense after the court rules. But look at the defenses first to see if you want to strike them (if they claim an affirmative defense that really is not an affirmative defense then search out the case law in Indiana & see if it actually is better for you to not strike the defense because he just made the burden on himself if it actually is not an affirmative defense).

 

[latigo]

I would answer the affirmative defenses ... with a motion to strike first & then with answer to the affirmative defense . . . blah, blah. . .

With all respect owing, it is clear that you don’t know any more about practicing law and civil procedures than the OP. The difference between you is that the OP admits to it whereas you - with the use of legalese that you don’t know the meaning of - try to hoodwink people into thinking that you know when you know that you don’t know.

For instance there is NO form of pleading in Indiana or in any of the other 50 states or the federal system known as an ANSWER to an ANSWER! (It is apparent that you merely picked up on it because the OP naively suggested it.)

The Indiana Rules of Court and Trial Procedure are very typical in describing and limiting the pleadings that are permitted.

“Rule 7. Pleadings allowed . . .
(A) Pleadings. The pleadings shall consist of:

(1) A complaint and an answer;
(2) A reply to a denominated counterclaim;
(3) An answer to a cross-claim;
(4) A third-party complaint,
(5) A third-party answer.

NO OTHER PLEADINGS SHALL BE ALLOWED; but the court may, in its discretion, order a reply to an answer or third-party answer. Matters formerly required to be pleaded by a reply or other subsequent pleading may be proved even though they are not pleaded.” (Emphasis added)
_______________________

Much worse you would have the OP file a motion to strike the defendant’s affirmative defenses while having no clue as to the subject matter of the lawsuit or the contents of the defenses and whether or not those pleadings are subject to being stricken.

And in so doing have the OP run the risk of being ordered to pay the defendant’s attorney fees in defending a specious motion.

You should consider asking questions in this legal forum rather than trying to answer them with guesswork.
_________________

It beats me why anyone that is not a lawyer would pretend to be one. People hate lawyers!

 

[BOR]

For instance there is NO form of pleading in Indiana or in any of the other 50 states or the federal system known as an ANSWER to an ANSWER

I am not a lawyer, but also agree, the Rules of Procedure outline the Pleadings. I have heard of terms such as rejoinder, surrejoinder, rebutter, or "Reponse to defendant's answer", etc. though, as I am sure you have also.

It beats me why anyone that is not a lawyer would pretend to be one. People hate lawyers!

I don't. I have great respect for thier knowledge, especially those versed in criminal law.

 

[dewyd]

Reply to Affirmative Defenses

davidmcbeth3;

Reply: I would agree with this post. As Rule 12 [F] Indiana Civil Procedure appears to say that the court may strike w/20 days after service of pleading any pleading, insufficient claim or defense, or redundant, scandalous, immaterial, etc. Which would also apply to affirmative defenses.

Rule 7-A The Court may order a reply to a Answer or 3rd party Answer.

Although a reply to the affirmative defenses [AD] is not required absent a court order. It is better practice to reply and answer those affirmative defenses or you waive your right to argue at some later date. Say if the opposing party moves for dismissal or summary judgment and the other side or Judge says well you failed to object or reply to those affirmative defenses in the pleading stage? Therefore you waived your arguments to same and I will rule those affirmative defenses admitted for all purposes. Judgment for the Defendant! Don't waive your rights, follow your instincts.

You should reply in the same fashion as a answer to the complaint either deny, admit, or that you lack sufficient knowledge to answer. If the affirmative defenses are totally bogus and w/o merit or sham, the Motion to Strike makes sense to me. Or if they are so vague or don't make sense move for a more definitive statement or clarification of the defense.

If opposing side had 10 AD, and 5 were bogus you could move to Strike those bogus AD. If the other 5 have some merit you could just deny and demand strict proof.

The initial burden is on the moving party. If the Def. is claiming those AD, he/she has the initial burden to prove those defenses.

 

[dewyd]

k9hammer; I recieved a affirmative defence answer. I know what the affirative defence is. Do I have to answer that?

Reply: Good question. You where aware enough to ask that question. You are not required to, but the better answers are above & below, read on.
Type in the search box: Can I reply to a answer? Thread by tammy b. I believe that's her name. There is a sample Reply Answer to affirmative defenses in that thread. Should answer your question to the T. Good Luck.

 

[dewyd]

Affirmative defenses reply

k9hammer; I recieved a affirmative defence answer. I know what the affirative defence is. Do I have to answer that?

Reply: Good question. You where aware enough to ask that question. You are not required to, but the better answers are above, read on.
Type in the search box: "Can I reply to Defendants answer?" thread by tammy_b. There is a sample Reply Answer to affirmative defenses in that thread. Should answer your question to the T. Good Luck.

 

[davidmcbeth3]

With all respect owing, it is clear that you don’t know any more about practicing law and civil procedures than the OP. The difference between you is that the OP admits to it whereas you - with the use of legalese that you don’t know the meaning of - try to hoodwink people into thinking that you know when you know that you don’t know.

For instance there is NO form of pleading in Indiana or in any of the other 50 states or the federal system known as an ANSWER to an ANSWER! (It is apparent that you merely picked up on it because the OP naively suggested it.)

The Indiana Rules of Court and Trial Procedure are very typical in describing and limiting the pleadings that are permitted.

“Rule 7. Pleadings allowed . . .
(A) Pleadings. The pleadings shall consist of:

(1) A complaint and an answer;
(2) A reply to a denominated counterclaim;
(3) An answer to a cross-claim;
(4) A third-party complaint,
(5) A third-party answer.

NO OTHER PLEADINGS SHALL BE ALLOWED; but the court may, in its discretion, order a reply to an answer or third-party answer. Matters formerly required to be pleaded by a reply or other subsequent pleading may be proved even though they are not pleaded.” (Emphasis added)
_______________________

Much worse you would have the OP file a motion to strike the defendant’s affirmative defenses while having no clue as to the subject matter of the lawsuit or the contents of the defenses and whether or not those pleadings are subject to being stricken.

And in so doing have the OP run the risk of being ordered to pay the defendant’s attorney fees in defending a specious motion.

You should consider asking questions in this legal forum rather than trying to answer them with guesswork.
_________________

It beats me why anyone that is not a lawyer would pretend to be one. People hate lawyers!

latigo:Really?? So I guess my recent motion to strike affirmative defenses which resulted in 7 of 8 defenses being stricken was ordered by a judge who does not know civil procedure either.. a motion to strike can be filed for ANY pleading -- it attacks the legal sufficiency of a pleading. And if an affirmative defense is stricken, they are limited to the defense at trial..so I say go for the motion to strike. Do some R&D on this motion -- a memorandum of law would / should be filed with it.