Using affirmative defenses if you're sued

If you file an Answer to the lawsuit and defend yourself in court, you can state an affirmative defense. You can deny what the plaintiff says you did without saying anything else. But you can also have affirmative defenses. You must raise it in your Answer or you may give up your right to bring it up later.

This page explains the most common affirmative defenses used in civil cases. It does not include every possible legal defense. 

Affirmative defenses are complicated and require in-depth knowledge of the law. 

Consider getting help from a lawyer to advise you on this part of the process. 

What is an affirmative defense

An affirmative defense is a defense that brings up new facts or issues not in the Complaint that, if true, would be a legal reason why the plaintiff should not win, or should win less than they're asking for. It is not a denial that you did what the plaintiff says you did.

If you want the judge to consider your legal defenses, you must include them in the form you file to respond to the lawsuit (your Answer). Include any possible defense you want the judge to consider in your Answer. You can focus on one, once you've collected more evidence while preparing for your trial.

If you find a defense that matches your situation, you may still need to do additional research into the civil codes that describe the defense in detail. A local law librarian may be able to help you do further research. 

If you are defending yourself in a debt collection case, read about affirmative defenses specific to debt collection.

Types of affirmative defenses

There are many different types of affirmative defenses in civil cases. They depend on the type of case you have. They also depend on the specific facts of your case.

If you are defending yourself in a debt collection case, read about affirmative defenses specific to debt collection.

Failure to state a cause of action

This defense says that the plaintiff, even if everything they said in the Complaint is true, has not met the legal requirements to sue you. The plaintiff has not given enough facts to state a cause of action, which every lawsuit must have.

Running the statute of limitations 

The plaintiff must file a lawsuit within a set amount of time. After that period expires, they can no longer sue. This time limit is called the statute of limitations. Review some common statutes of limitations in civil casesYou need to list the specific statute of limitations that was not met.

If the period of time has been longer than the statute of limitations allows, you may be able to use the defense called running of the statute of limitations.   

Lack of standing to sue 

The plaintiff is not the person who suffered the harm or does not have a reasonable connection to any harm that may have been caused. 

Res Judicada/Collateral Estoppel

You would use this defense if the issue has previously been decided by a court. A plaintiff cannot re-file the suit and ask a judge a second time, based on the same facts, to order you to pay for something that was already decided by a court.


Even if the plaintiff files the lawsuit within the statute of limitations, they are not allowed to delay so long that it negatively affects your ability to defend yourself.  

You can use this defense if the Plaintiff filed a case based on an equitable cause of action but waited a long time to file this lawsuit. The delay caused you harm because it increased the amount that the Plaintiff is suing you for. Or, you no longer have documents relating to this case.

For example, the plaintiff waited almost 4 years to file for a breach of written contract suit. But your defenses depend on bank records and your bank only keeps 3 years of records. 

If this is the case, you may be able to use the defense called laches

Failure to mitigate damages

A plaintiff cannot collect for harm that they could have reasonably avoided. For example, if a tenant breaks their lease and moves out of the apartment, the landlord must make reasonable efforts to find a new tenant. If the landlord does nothing to try to find a new tenant and then sues the former tenant a year later for the entire year's worth of rent, the tenant can use the defense of failure to mitigate. 


You would use this defense if the plaintiff owes you money or did not credit you for a payment you made. This is used to show that you owe less than what the plaintiff claims. If you think the plaintiff actually owes you money, then you could file a cross-complaint to ask for that money.

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