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Things to know about the Answer stage
- Overview of the Answer stage
- Responsive pleading
- Relation back
- Prejudice
- Initial review
- Common documents at the Answer stage
Responses to the complaint
- The motion to dismiss and demurrer
- Dismissal / demurrer checklist
- Arguing the motion to dismiss
- The answer and general denial
- Preparing the answer and general denial
- Affirmative defenses
- Preparing affirmative defenses
- The counterclaim
- Writing the counterclaim
- Other filings
Strategic use of filings
- Deciding what to file
- Goal: Justice
- Goal: Settlement
- Goal: Delay
- Goal: Favorable judgment
Transcript
Hi. I\’m Matt, and welcome to lesson three, civil procedure at the answer stage.
Lesson three will cover things to know about the answer stage, responses to the complaint, and strategic use of filings.
The summons and complaint have been served. We have two parties now, a plaintiff and a defendant. It\’s the defendant\’s next move. He has to essentially say, I\’m here. At this stage, the challenges are to determine how and when to answer avoiding a default judgment and fighting back.
Before we move on, let\’s first take a look at some useful terms for this lesson.
The defendant will eventually be required to answer with a responsive pleading, which is a filing on the merits of the allegations in the complaint. An answer, for instance, is a responsive pleading because it addresses the points made in the complaint. A motion to dismiss is not a responsive pleading.
The relation back principle says that an amendment to a pleading will be treated as if it was filed at the time the original complaint was filed. For instance, if the defendant gets a dismissal, the plaintiff may be allowed to amend his or her complaint without fear of due date limits required of the original complaint.
In legal terms, prejudice is the disposition or dismissal of a case by a judge. A dismissal with prejudice ends the case. It\’s final. The plaintiff cannot refile the lawsuit. A dismissal without prejudice is one where the plaintiff is allowed to amend the complaint or refile it.
Moving on now to the initial review, the defendant should first examine the summons and complaint to determine who sued him and how to move forward. He should examine the rules of civil procedure alongside the complaint and summons, keeping a keen eye out for defects.
Finally, he should note the date on the summons to determine the date a response is required.
At this stage, a defendant has many options, including the motion to dismiss and demure, an answer and general denial, affirmative defenses, a counterclaim, motions to quash or strike, and a motion for extension of time to answer.
In law, a motion is a request that the court do something. It\’s also referred to as moving the court. The motion to dismiss is a request to a court to throw out a case. A plaintiff can voluntarily dismiss if no counterclaim has been filed. In some states, a demure can be filed. It asserts that even if the allegations are true, they don\’t rise to a cause of action.
If you seek a dismissal, make a checklist of all the things that could go wrong with a complaint.
A court can dismiss for improper jurisdiction or venue, failure to state a claim, a missing prayer for relief, insufficient service of process, and so on. Oftentimes, a dismissal is without prejudice, but the plaintiff may not come back or might be more willing to settle if the case is dismissed.
A motion to dismiss should argue that the complaint is deficient in some way. Take something you think is wrong with the claim, explain why it\’s wrong, and move the court to dismiss. For instance, if you think the plaintiff failed to state a cause of action, look at elements or ingredients of the claim, discuss those elements in your motion, and pair them with the facts of the claim. If you find any element missing, that is grounds for dismissal.
Some jurisdictions allow you to respond to the complaint with a general denial. Others require a formal answer. If you don\’t respond to the complaint, the plaintiff can get a default judgment against you. A general denial does not address specific allegations in the complaint but denies all allegations.
A sample general denial might be, the defendant denies each and every allegation of the complaint. An answer must respond to every factual allegation in the complaint. Answers and general denials are followed up with affirmative defenses.
Respond to the allegations in the complaint and file it with your affirmative defenses. In many jurisdictions, if you fail to file affirmative defenses with the answer, you may lose the opportunity to file them later. Include any exhibits, such as a verification, with your filing.
Affirmative defenses are facts other than those alleged by the plaintiff, which, if proven, defeats or mitigates the legal consequences of the defendant\’s otherwise unlawful conduct. Sample affirmative defenses include failure to state a cause of action, fraud, and re judicata, previous settlement of the case. There are numerous others. If you don\’t raise affirmative defenses in the case, you may lose the chance to argue them later.
List every defense or legal reason why, even if the facts are true. The defendant should not have to pay damages.
Look at statutes and cases to determine elements of an affirmative defense. If any facts match up with elements, list the defense even if the connection is loose. Number each affirmative defense and file them with the answer.
A counterclaim is a complaint filed by the defendant alleging that the plaintiff has injured the defendant and should pay damages. The counterclaim arises out of the same incident as the complaint.
Depending on the jurisdiction, it may be filed by itself or along with the answer and affirmative defenses. Each separate document you file needs its own title, signature, and certificate of service.
A counterclaim must arise out of the same events as the plaintiff\’s lawsuit. Each jurisdiction has its own rules for when to file counterclaims.
Make sure you know those rules. Counterclaims must be as complete as a claim alleging harm, stating a cause of action, and so on.
Other options at the answer stage include filing a motion to quash, which asks the court to render a decision void because of a gross error during the proceedings. A motion to strike is a request that the court eliminate a specific part of a pleading, like an affidavit or verification.
A motion to change venue is a request that a case be transferred from one location to another.
A request for extension of time asks for more time to answer a complaint. Finally, a request for leave to amend is a request to be allowed to change or correct a pleading.
The general suggestions in this section provide information about how to approach different procedural situations.
When approaching your case, make decisions based on your own circumstances, jurisdiction, rules of civil procedure, and your goals. In short, think carefully about what you file and when to file. Use the suggestions in this section as simple guidelines.
If your goal is justice and that you don\’t want to be kicked around, your tactic might be to harass. This is better from a defendant\’s position because someone has sued you. You might proceed by using the motion to dismiss, or you might begin discovery early to obtain information your opponent may not want to reveal. For instance, you can assert affirmative defenses that can get you deeper into the plaintiff\’s business.
If your goal is to settle, a tactic might be to raise litigation expenses so that your opponent will want to give in early. Make your opponent spend money.
Let them know you have staying power with a motion to dismiss, subpoena witnesses, send other discovery, file a counterclaim if you have one, and so on.
If your goal is to delay, such as in a foreclosure where you wanna stay in your house longer, your tactic might be to raise extraneous issues without being frivolous.
File a motion for extension of time to answer, spend years in discovery, exhaust all motions, produce a long list of affirmative defenses, and nitpick over every document the plaintiff files. If you have a counterclaim, file it.
If your goal is a favorable judgment, your tactic may be to focus on the core elements of the case and the law and not get sidetracked. To focus on core elements, you\’ll need to respond adequately to all motions and pleadings, attend and be prepared for hearings, and avoid summary judgment, default judgment, or dismissal against you.
To summarize, in lesson three, we discussed things to know about the answer stage, including an overview, terms to know, an initial review, and common documents. Then we discussed ways to respond to a complaint using specific types of documents like the answer and motion to dismiss. Strategic use of court documents discussed what to file given a particular goal. Next up, lesson four, civil procedure at the discovery stage.