Drafting an Answer to a Civil Complaint

Drafting an Answer to a Civil Complaint

When served with a complaint, a person can either: (1) file a motion to dismiss under the relevant federal or state court rules; or (2) draft an answer. If an individual decides to answer the complaint, there are several practical rules that he should follow to ensure that the answer accurately responds to the allegations in the complaint, asserts all relevant affirmative defenses to the legal claims in the complaint, and sets forth relevant counterclaims, cross-claims, and third-party claims, if applicable.

More specifically, before drafting an answer, an individual must adhere to the following rules:

●     Review the Local Rules in the Jurisdiction. The local rules may, and often do, contain additional requirements that govern the filing of an answer, such as whether one can assert a general denial of all factual allegations or whether he must respond to each allegation individually.

●     Research the Legal Claims Asserted in the Adversary’s Complaint. Before drafting an answer, one must be sure to research the adversary’s legal claims. Doing so will help determine whether one can assert specific affirmative defenses, counterclaims, cross-claims, or third-party claims.

●     Respond to the Adversary’s Factual Allegations. Typically, one must respond to every factual allegation in the complaint by:

●     (1) admitting the truth of the allegation; or

●     (2) denying the truth of the allegation; or

●     (3) partially admitting or denying the truth of the allegation; or

●     (4) lacking the information to state whether the allegation is true or false.

The responses must be accurate and made in good faith. General denials, namely, summarily denying every allegation in the complaint, are highly disfavored and may negatively affect an individual’s credibility with the court. Additionally, the responses should typically be limited to one-sentence. Explanations are not necessary and may prejudice a client by revealing harmful information or the litigation strategy.

●     Assert Affirmative Defenses, Counterclaims, and Third-Party Claims. When drafting an answer, an individual should assert all defenses that he may have in response to the factual allegations and legal claims. Also, based on the events that gave rise to the adversary’s complaint, an individual may have a cognizable legal basis upon which to assert counterclaims, cross-claims, and third-party claims

Tips for Drafting An Effective Answer

            When drafting an answer, one must: (1) follow the local, state, and federal court rules; (2) research the legal claims in the adversary’s complaint; (3) respond to the adversary’s factual allegations; and (4) assert affirmative defenses, counterclaims, cross-claims, or third-party claims, if applicable.

            A.        Follow The Local Court Rules

            As with any pleading that is filed before a court, an individual must consult and comply with the local court rules before drafting and filing an answer. In many instances, the local court rules will contain requirements that will not be found in the federal or state court rules. For example, a judge in the Eastern District of New York may require that an answer be filed using a particular font and font size, and indicate whether general denials, namely, a summary denial of every allegation in the complaint, thus requiring no response to each factual allegation, are permitted. Accordingly, an individual cannot forget to consult the local court rules when filing an answer, or any pleading.

            B.        Research the Legal Claims in the Adversary’s Complaint

            Before drafting an answer, one must be sure to research all legal claims that the adversary asserts. By doing so, an individual can determine whether there exist affirmative defenses, counterclaims, cross-claims, or third-party claims that can be set forth in the answer. Conversely, by failing to perform sufficient research, an individual may, for example, inadvertently fail to identify defenses that could have led to the dismissal of the adversary’s complaint or resulted in a substantial reduction in the damages to which the adversary may be entitled. Consider the following example:

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Complaint

            1.         On December 9, 2016, plaintiff traveled to defendant’s place of business, Sporting World, which is located at 250 Fifth Avenue in New York, New York, two days after a snowstorm that resulted in accumulations of twelve to fourteen inches.

            2.         Upon entering defendant’s parking lot, plaintiff realized that defendant had taken no steps to remove the snow and therefore render the lot safe for customers.

3.         While searching for a parking spot, plaintiff, who admittedly was later found to be intoxicated with a blood-alcohol level of .12, struck a pedestrian who was exiting Sporting World with her ten-year old child.

            4.         Both Plaintiff, the pedestrian, and her child suffered severe injuries, including a broken leg, concussion, and internal injuries.

Count One: Negligence

5.         Plaintiff incorporates the allegations in paragraphs 1-4 as if more fully set forth herein.

6.         Defendant owed a duty to exercise reasonable care to ensure that Sporting World’s parking lot was safe for incoming and outgoing customers.

7.         By failing to take any reasonable steps to remove the snow in its parking lot, defendant breached this duty.

8.          Defendant’s negligence was the direct and proximate result of plaintiff’s damages.

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            If one had done research concerning negligence under New York law before responding to these allegations, one would have identified: (1) the elements necessary to state a cognizable claim for negligence; and (2) the defenses available to a negligence claim.  Specifically, in New York, an individual may assert, if the facts warrant, a claim of comparative negligence, which states that a claimant’s recovery may be reduced if the claimant’s own negligence contributed to the claimant’s damages.  Now, when reviewing the factual allegations above, the adversary stated that plaintiff was legally intoxicated at the time of the accident. Consequently, it is possible, indeed likely, that the accident was due in part to plaintiff’s intoxication.[1] Thus, an individual should assert an affirmative defense of comparative negligence, which, if successful, would reduce the amount of damages that a party may recover if a jury finds an individual’s client liable.

C.        Respond to the Adversary’s Factual Allegations.

            Responding to the adversary’s factual allegations is one of the most important aspects of drafting an answer. An individual must be particularly diligent when doing so because these responses become part of a litigation record that may impact the likelihood of the individual facing liability, and may ultimately be one of several bases upon which an appeal is filed.  When responding to a complaint’s factual allegations, an individual has four options:

●             Admit the truth of the allegation; or

●             Deny the truth of the allegation; or

●             Partially admit or deny the allegation; or

●             State that there is insufficient information to state whether the allegation is true or false.

One must review the factual allegations carefully and provide responses that accurately reflect the individual’s knowledge of those allegations. For example, an individual should not deny allegations that he knows, or should have reason to know, are true -- such denials will negatively affect the individual’s credibility with the court and cast doubt on the credibility of his other responses, counterclaims, and the like. An individual must have a good-faith basis for admitting, denying, partially admitting or denying, or stating that the individual lacks sufficient information to admit or deny the allegations in the complaint.  Consider the following examples of good-faith responses to a claimant’s factual allegations:

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            Allegation:    1.         Plaintiff’s principal place of business is located at 250 Fifth Avenue in New York, New York.

            Response:    1.         Defendant admits the allegations contained in paragraph one of the complaint.

Note: One should admit the allegation only if this is the correct address.

            Allegation:    2.         Defendant failed to take any steps to remove the snow that had accumulated in Sporting World’s parking lot after the December 7, 2016 snowstorm.

            Response:    2.         Defendant denies the allegations contained in paragraph two of the complaint.

Note: An individual should deny the allegation only if the individual’s client made at least some attempt to clear the snow, even though it was ineffective.

             Allegation:    3.         Plaintiff struck a pedestrian and her ten-year old child, all of whom suffered severe injuries

           Response:    3.         Defendant partially admits and partially denies the allegations contained in paragraph three of the complaint. Specifically, plaintiff became aware of the accident but is unaware of the nature and extent of the plaintiff’s injuries.

Note: In this situation, it is acceptable to give an explanation because it clarifies the facts that the individual admits and those that he denies.

            Allegation:    4. Well-known empirical studies demonstrate that negligently maintained parking lots increase the likelihood -- by 64% -- of accidents resulting in severe injuries.

            Response:    4. Defendant lacks sufficient information to admit or deny the allegations contained in paragraph four of the complaint.

Note:  This response should be given only if the individual is unaware of these studies.

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            As the above example demonstrates, the responses must accurately reflect the individual’s knowledge of the facts, and do so in a concise response that avoids revealing facts, explanation, or justifications that may be harmful to the client or disclose the client’s litigation strategy.

            D.        Assert Affirmative Defenses, Counterclaims, Cross-Claims, and Third-Party Claims, If Necessary.

An individual should assert all affirmative defenses, counterclaims, cross-claims, and third-party claims that the facts of the case warrant. Affirmative defenses are those that will either preclude the adversary from obtaining the legal remedy he seeks, or that will substantially reduce any damages to which the adversary may be entitled.

Importantly, when asserting affirmatives, one should not assert any defense whatsoever. Rather, after researching the legal claims asserted in the adversary’s complaint, include all affirmative defenses that have at least an arguable chance for succeeding on the merits. An individual should assert all cognizable legal defenses, but should not assert frivolous defenses. In addition, an individual can -- and often should -- assert multiple affirmative defenses -- and typically an individual need only “state in short and plain terms [the] defenses to each claim asserted."[2] In other words, a detailed explanation of the individual’s affirmative defenses is unnecessary, and these defenses include, but are not limited to: (1) those listed in Rule 12 of the Federal Rules of Civil Procedure or analogous state rule, such as failure to state a claim upon which relief may be granted; (2)  res judicata, collateral estoppel, and statute of frauds; and (3) other substantive defenses to the legal claims asserted in the adversary’s complaint, such as contributory negligence in tort actions, and accord and satisfaction in contract actions. Consider the affirmative defenses asserted below in response to the negligence claim asserted against Sporting World:

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Affirmative Defenses

1.         Plaintiff has failed to state a claim upon which relief can be granted, and Plaintiff’s claim should be dismissed.

2.         Plaintiff, by virtue of being legally intoxicated, was comparatively negligent and thus liable for the majority of damages allegedly incurred.

3.         Defendant reserves the right to assert additional affirmative defenses as they become available.

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            As the above example shows, an individual can assert multiple defenses without needing to explain in depth why those defenses are being asserted. Instead, the individual should focus on identifying all defenses that have a reasonable likelihood of success at trial.

            In addition, after reviewing the complaint, and based on the facts, an individual may have the opportunity to assert counter-claims against the adversary, provided that they arise from the same nucleus of operative facts as the claims asserted in the adversary’s complaint. Although counterclaims are made by a party responding to the complaint, they should, as a practical matter, be pleaded in the same manner as the facts and legal counts would be set forth in a complaint. Thus, an individual would first set forth a description of the parties, the basis for jurisdiction, the facts giving rise to the claim(s), the specific legal claim(s), a request for damages or other relief, and a request for a jury trial if one is desired.  Finally, after reviewing the complaint, an individual may determine that he can assert cross-claims, which are claims against another individual already named as a defendant, or third-party claims, which are claims against individuals not yet a party to the lawsuit. As with counterclaims, an individual should plead such claims in the same manner that he would in a complaint.

Conclusion

            Drafting an effective answer requires an individual to carefully review the factual allegations and legal claims in a complaint, and to carefully consider the responses to those allegations, including any affirmative defenses, counterclaims, cross-claims, and third-party claims that may be asserted.  After reading this article, individuals should review the answers located at the link below and practice applying these techniques by drafting an answer in response to a hypothetical or actual complaint [3].

Footnotes:

[1] Of course, an individual may also be privy to facts of which the plaintiff is unaware, and that may provide an individual with meritorious affirmative defenses.

[2] See Fed. R. Civ. P. 8.  

[3] An example of effective answers are available at the following links: http://bit.ly/2hS21jS; http://bit.ly/2vWXCTf