Affirmative Defenses

When the affirmative defenses is used

Timing: stated in the answer. Pleadings come first in a civil case. They tell the court and the other side what each party claims or denies.

What the rule requires

• In responding to a pleading, a party must affirmatively state any avoidance or affirmative defense (Rule 8(c)(1)).

In practice, read each requirement closely. Then check whether your court adds anything of its own. For example, many courts set page limits, formatting rules or a duty to confer with the other side first.

You can read the full text of Fed. R. Civ. P. 8(c) online. Also, the federal judiciary publishes the current rules and recent amendments.

The affirmative defenses in state court

This page covers the federal version. In state court, the affirmative defenses may have a different name, a different deadline or a different form. For example, a state may count days differently or require a separate notice. So start with your state’s rules of civil procedure, then check the local rules. Our state procedures guide links to the official rules for every state and DC.

Key terms

In addition, these terms come up often with this procedure:

• Affirmative defense: a defense that defeats or reduces a claim even if the plaintiff's allegations are true, such as the statute of limitations.
• Statute of limitations: a law setting the deadline for starting a lawsuit. Limitations periods vary by claim and jurisdiction.
• Res judicata: claim preclusion: a final judgment on the merits generally bars the same parties from relitigating the same claim.
• Collateral estoppel: issue preclusion: an issue actually decided in a prior case may not generally be relitigated by the same parties.

Related procedures

Similarly, these procedures often come up alongside it:

• Answer: the defendant's responsive pleading. It admits or denies the allegations of the complaint and states any defenses.

Before you rely on this page

First, read the current text of the rule. After that, check your court’s local rules and any standing order from the judge. In addition, look at recent decisions from your own court. They show how judges apply the rule in practice. For advice about your own case, speak with a licensed attorney, for example through our directory.