So, you have been sued. You received the petition (in state court) or complaint (in federal court), and have a set number of days to respond. What do you do?
First, you will want to file a motion to dismiss or answer. To do either, you will need an attorney. A motion to dismiss is granted if the court where the lawsuit was filed does not have jurisdiction over the person or the subject matter in dispute, or if there is no set of facts on which the plaintiff would be entitled to judgment. Motions to dismiss are infrequently granted. An example of when dismissal is granted is when a legislator files a frivolous lawsuit for purely political reasons.
In conjunction with an answer, defendants regularly file counterclaims or third-party complaints. A counterclaim is what the defendant uses to sue the plaintiff for a claim arising out of the same transaction or events as the original lawsuit. A third-party complaint is what the defendant uses to sue a third-party for a claim arising out of the same transaction or events as the original lawsuit. Later, if the third-party brought into the lawsuit files suit against the original defendant, this is called a cross-claim. No matter how complex a case is, these are the basic options a defendant has in responding to a complaint.
Affirmative defenses are always included in an answer. If they are not, you lose the opportunity to argue them. An affirmative defense is a "yeah but" argument. It provides that even if the plaintiff's version of events is correct, the plaintiff should not be able to recover on his or her claim because of something he or she did or did not do.
Even though affirmative defenses are always in an answer, they are not always utilized to their full extent, because they uncommonly defeat a plaintiff's claim in its entirety. As a result, attorneys end up waiving their right to argue the defense because they proceed with litigation of the case.
Ultimately, when or if you are sued, one of the first things you should ask yourself is if an affirmative defense applies that would defeat the plaintiff's claim. I will discuss affirmative defenses in greater depth in a future post.