More Thoughts on Answers
I wrote a post in 2020 about a document that defendants often file in lawsuits: the answer. While that post, which I republish below, focused on the document itself, in this update, I share some thoughts on what the document means in the context of a dispute.
The first thing I often note when I see an answer is that the defendant did not default (or fail to appear). This means that the defendant likely has the resources to hire counsel and thus possibly to pay a judgment or settlement. It also means that I will have an opposing lawyer to talk with, which is much easier than having to deal with an unrepresented party.
The next thing I note is that the defendant did not move to dismiss. Under the federal rules, the deadline to answer is adjourned by the filing of a motion to dismiss, and so litigants that move to dismiss do not answer until they lose their motions. And, often, answering a complaint legally or practically waives some of the arguments that a defendant may raise on a motion to dismiss. And so, by answering, a plaintiff may be pleased that the defendant did not delay the litigation by months by filing a motion to dismiss.
An answer is often called “joinder of issue” because it triggers the start of the scheduling and discovery phases of a lawsuit as it reflects the appearance of the defendant in the case. While plaintiffs may have little to do after they file and serve their summonses and complaints, the filing of an answer makes the case more active as both sides exchange discovery requests and need to conduct a scheduling conference. This may come as a surprise to plaintiff clients who incur a lot of legal fees during the preparation of a complaint, then few fees as plaintiff waits for an answer, and then all of a sudden more fees as new deadlines and responsibilities arise.
Technically, admissions in an answer bind a defendant through the litigation. And this is why many defendants tend not admit much in answers. As a practical matter, I rarely see any consequence for defendants who deny allegations that are plainly true. On the flip side, I rarely see the admissions being cited in arguments or decisions later in litigation. This makes the answer a less consequential document in many ways than the complaint.
Many answers list a ton of affirmative defenses. It is often the case that few have merit. And while Federal Rule 8(c) lists numerous possible defenses, lawyers often just list a bunch of things. While some plaintiffs litigate these issues later on in motions to strike, and while many defendants assert the defenses in motions for summary judgment, in practice, many affirmative defenses appear in answers and then seem to be ignored later on. I believe many lawyers cite them in answers merely to preserve their rights to invoke them later on.
***
An American lawsuit often begins when a plaintiff files a complaint, which is a legal document that sets forth allegations against one or more defendants. When the plaintiff delivers the complaint to a defendant, the law requires the defendant to respond or run the risk of a default. If a defendant does not ask the court to dismiss the lawsuit before discovery, or if the defendant made that motion and failed, its response is a document called an “answer.”
Why should you continue to read this post about answers?
You’ve read an answer and want to understand it better
You’re curious why there is no pleading called a “question”
You’re a defense lawyer who hates that complaints get so much more attention than answers
Sign saying "IT'S OKAY TO SAY NO" from the Oslo Women's March (Image Credit)
Answers Principally Admit and Deny Allegations
Unlike a complaint, which plaintiffs often use to tell their story through a numbered list of allegations, an answer often does not recount the defendants’ version of events. Instead, for every allegation in the complaint, the answer may just say that the defendant admits the allegation, denies it, or is unable to admit or deny it.
I often see that defendants admit very basic statements: their name, where their office is, and sometimes complimentary statements, such as when the plaintiff alleges the defendant is a “global leader” in its field. Defendants have good reason to be reluctant to admit allegations, as they may be bound to them for the rest of the lawsuit.
Defendants often deny nearly everything else. This makes sense even for uncontroversial claims because defendants can argue that, while the thrust of a the allegation is true, it does not agree with the way that the plaintiff phrased it in its complaint. And, in any event, there is usually little practical consequence for denying an allegation in an answer and then later conceding that it is true.
For some allegations, defendants state that they are unable to admit or deny. This usually happens when an allegation concerns a third party or where the plaintiff is not alleging a fact but is making some other kind of statement, such as a legal conclusion.
Answers are usually relatively inexpensive documents to draft because they do not need to be well-crafted narratives that persuade people of the defendant’s innocence. Defendants have other opportunities in a lawsuit to explain their story, such as in motions to dismiss the case and at trial. Instead, the main purpose of the answer is just to let the plaintiff and the court know which allegations are disputed.
Answers Often Contain Affirmative Defenses
In addition to generally denying the plaintiff’s allegations, an answer sets forth the defendant’s affirmative defenses. Answers often list around a dozen legal doctrines that the defendant may rely upon later in the litigation to argue that, even if the plaintiff’s allegations were true, it should not prevail in the litigation. For example, a defendant may deny that it owes money to the plaintiff, and also invoke as an affirmative defense that actually the plaintiff owes it money and so any money the defendant owes is really offset by the plaintiff’s own debt.
Although an answer may assert affirmative defenses, it often serves as a waiver of any personal jurisdiction defense. A defendant may argue at the start of a lawsuit that it is not subject to litigation in the court that the plaintiff has chosen. But once the defendant files an answer in that court that does not specifically allege that the defendant is not subject to personal jurisdiction in the court, a court may decide that it is too late for the defendant to make that argument.
Once a defendant files an answer, the parties often proceed to exchanging evidence in discovery and the court often organizes a conference to plan a schedule for the litigation.
Answers May Also Provide Counterclaims
Defendants often see themselves as the truly aggrieved party and the plaintiff as the wrongdoer. In those situations, a defendant may assert its own claims against the plaintiff (called “counterclaims”) in the same document as its answer. It does so in a separate section at the end of the answer where, in a new set of numbered paragraphs, it makes its own allegations against the plaintiff and tells its story. Following its factual allegations, it identifies its legal claims and the legal relief it wants the court to grant.
Once the defendant files counterclaims, the plaintiff is required to file its own answer to the counterclaims. In that document, the plaintiff identifies which allegations it admits, which it denies, which it cannot admit or deny, and which upon which affirmative defenses it may rely.