Affirmative defenses

Written by: Thomas A. Downie May 27, 2023 Read Time: 2 min

This post is part of a series. Here is the full series list:

This is the fifth and last post in cross-examination series two. See Cross Examination series two introduction.

When deposing the defendant in a case, or a representative of a corporate defendant, you’ll find it useful to cross-examine about the defendant’s answer including the affirmative defenses. This post focuses on the latter.

Defense lawyers are wisely concerned about waiving affirmative defenses. They may not even know the elements of a given defense, yet feel compelled to list the defense for fear of waiving it. A recent case offers a word of caution. In Greenspan v. Platinum Healthcare Group, LLC, 2021 WL 978899 (E.D. Pa. Mar. 16, 2021), the court sanctioned the defendant under Rule 11 because the defendant did not have evidentiary support for its asserted defenses. See Holli K. Bolt, Federal Court Cautions Lawyers on Pleading Affirmative Defenses, Defense Digest, Vol. 27, No. 4 (Sept. 1, 2021).

If you’re in the role of plaintiff’s counsel, you can devote time during your deposition of the defendant to ask about affirmative defenses. Alternatively, you can include that topic in a Rule 30(b)(6) notice, calling upon the defendant to designate an authorized representative for testimony. Watch for a later post on Pursuing effective discovery.

One caution at the outset. It may not be wise to inquire too specifically about the elements of a given affirmative defense. If the defense was hastily conceived, specific questions in a deposition may simply educate the defendant or, worse yet, generate a supportive record.

That said, cross-examining on affirmative defenses can be useful. The first set of discovery requests should ask for the “factual basis” of respective defenses as well as production of relevant documents. Cross-examination then reiterates and amplifies those requests.

Here’s a typical example of such a cross-examination. This excerpt is from the Maelstrom case, featured in earlier posts. See Cross Examination series two introduction.

BY MR. DOWNIE

(Defendant’s Answer to Amended Complaint marked for the purpose of Identification as Plaintiff’s Exhibit 15.)

Q I’ve given you Exhibit 15 — a copy of Maelstrom’s answer Plaintiff Johnson’s amended complaint. I’ll ask you to turn to Page 22, please. Do you see the heading “Affirmative Defenses”?

A Yes.

Q These are consecutively numbered, Defense No. 1, Defense No. 2, et cetera, correct?

A Yes, they are.

Q Defense No. 1 alleges that, “The Plaintiff’s injuries were proximately caused by his own negligent conduct.” Do you have any facts or information suggesting that the Plaintiff, Mr. Johnson, engaged in any negligent conduct?

MR. RICHARDSON [the defendant’s lawyer]: Let me just enter a continuing line of objection to any questions concerning the affirmative defenses that were asserted by counsel in the answer. Go ahead.

A No.

Q Defense No. 2 states that, “Plaintiff’s damages were caused or contributed to by third persons over whom this Defendant had no control.” Do you know of any third persons who fit that description?

A No, I don’t.

Q And you don’t have any facts or information suggesting that there were third persons whose conduct caused or contributed to the Plaintiff’s injuries?

A I don’t have any, no.

Q Defense No. 3 states that, “Plaintiff has failed to join all necessary and/or indispensable parties to this action.” Do you know of any parties — any persons or any business entities — that you have reason to believe played some role in this, other than Maelstrom and CutRight?

A No.

Q Defense No. 4 states that, “Plaintiff’s damages were caused by his express and/or implied assumption of the risk of injury.” Do you have any facts or information suggesting that Mr. Johnson assumed a risk of injury in this matter?

A Nothing other than what I’ve testified to here today.

Q One other question, then. Defense No. 5 states that, “Plaintiff’s damages were caused by intervening or superseding acts or conduct by parties other than this Defendant.” Once again, are you aware of any parties who would fit this description?

A Well, other than CutRight. They didn’t use the saw as specified, and went ahead with torches.

Q And do you have any, as we sit here today, any facts or information — even if it’s hearsay, something you heard from somebody else — that bears upon why CutRight didn’t use a saw and instead used a torch?

A No.

Q You have no facts or information about that?

A No.

As noted, the next post will begin a series on Pursuing effective discovery. The series will include issuance of a Rule 30(b)(6) notice, calling upon the defendant to designate an authorized representative for testimony regarding the existence and whereabouts of relevant documents.

About The Author

I’ve litigated class actions and other complex cases for many years, roughly divided between plaintiffs’ practice and defense representation. My undergraduate degree is from Penn State University and I earned my law degree, cum laude, from Cleveland-Marshall College of Law. In my senior year I was elected Editor-in-Chief of the Cleveland State Law Review.