🛡 Affirmative Defenses in Massachusetts Civil Litigation

An “affirmative defense” is defined by Black’s Law Dictionary as

A defendant’s assertion of facts and arguments that, if true, will defeat the plaintiff’s…claim, even if all the allegations in the complaint are true.

For example, a plaintiff may file a legitimate lawsuit that’s disqualified by the statute of limitations.  An otherwise valid complaint may be dismissed because the court in which it’s filed lacks jurisdiction over the parties or the claims at issue. (For a more extensive list, see Rule 8(c) of the Massachusetts Rules of Civil Procedure.)

In Massachusetts, if a defendant fails to assert an affirmative defense in his initial answer to the plaintiff’s complaint, he may be barred from doing so later in the proceedings.

Therefore, it’s common for defendants to assert all common affirmative defenses in their answer—whether they’re applicable or not.

This can, at times, open a can of worms during the case’s discovery phase.  An overly tenacious (or obnoxious) plaintiff’s attorney may pepper you with interrogatories or deposition questions concerning affirmative defenses that have little to no applicability to your case.    

To avoid this, I often state in my answers that the defendant is only “reserving the affirmative defenses” before list them (one by one) in the pleading.

This, in the eyes of most judges, should allow you to preserve your affirmative defenses while, at the same time, avoiding the nuisance and confusion of answering pointless discovery questions.