November 07, 2021
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Affirmative Defenses Must Be Supported | New Jersey Law Journal - Law.com

Books and glasses - Nickolay Khoroshkov - Fotolia
Books and glasses – Nickolay Khoroshkov – Fotolia

Rule 4:5-4 (“Affirmative Defenses; Misdesignation of Defense and Counterclaim”) states that a responsive pleading “… shall set forth specifically and separately a statement of facts constituting “an avoidance or affirmative defense ….” The comments and annotations to the Gann edition of the rules states that, ordinarily, affirmative defenses not pleaded (or otherwise timely raised) are deemed to be waived. Thus, it is obvious that careful attention needs to be given to the formulation of a responsive pleading lest the listing of an important defense be omitted.

It is occasionally observed that an answer to a complaint contains a long list of affirmative defenses, some of which are clearly irrelevant and look like they were probably thoughtlessly copied out of another pleading. A hypothetical example of that would be a wrongful discharge case where the answer listed as an affirmative defense that the weather was cold and rainy. But on a more serious note, it should be pointed out that, frequently, a defense is listed without the required separate statement of facts claiming to support it. We are not aware that factual omissions generate much motion practice, but what does result from such omissions is the need for prolonged discovery which might have been avoided or at least shortened if the facts statement had been included in the pleading.

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source: https://www.law.com/njlawjournal/2021/11/07/affirmative-defenses-must-be-supported/

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