Dear 1L: Defenses vs. Affirmative Defenses
💌 Dear 1L,
With midterms on my mind, I write to share something that helped me on exams and learning about litigation more generally:
I thought about how a case starts in the real world. To understand that, I had to learn some terminology and the differences between and among:
▪️ a Claim
▪️ the Elements of a Claim
▪️ a Defense
▪️ an Affirmative Defense, and
▪️ the Elements of an Affirmative Defense.
There’s more to learn, for sure, but here’s the start of a Primer on some terminology. Here, my terms apply to a civil action in federal district court (the trial court), but the underlying principles apply generally.
🔷 1: Claim
🔸 The plaintiff files an initial pleading with the court called the complaint. In it, the plaintiff asserts facts and legal Claims (causes of action) that the plaintiff alleges against the defendant.
—Examples of claims you’re learning are negligence and breach of contract.
🔸 On each of the Claims, the plaintiff has the burden of proof. That means the onus is on the plaintiff to establish each of the Claims. The defendant need not disprove the Claims.
🔷 2: Elements of a Claim
🔸 There typically are multiple Elements that the plaintiff must show to prevail on a Claim.
▪️ For example, the Elements of a Claim of Battery that the plaintiff (P) must show to prevail against the defendant (D) are:
a) a volitional act by D that
b) D intended to cause contact with P,
c) that is harmful or offensive, and
d) that causes P to suffer a contact that is harmful or offensive.**
**N.B. Please modify Elements to match prof.’s wording in class.
🔸🔸 The plaintiff bears the burden of proving every Element of every Claim asserted.
🔷 3: Defenses
🔸 Unless it seeks to admit liability, D raises Defenses by which it can try to prevent P from meeting the burden of proof on each Claim Element.
🔸 D does not bear the burden of disproving any of the Elements. D just wants to prevent P from establishing the Elements. Stated another way, D tries to show that P has not met the burden of proving the Elements.
🔸 Think of the Defenses as the flipside of the Elements. So if P says D acted below the standard of care, D will argue that it acted within the standard of care.
—> Every Element is a potential bone of contention. Every Element needs its own IRAC on any exam (although some may be conceded, or obvious and short to discuss).
⭐️ It is only by knowing the Conclusions on each Element that you can judge whether P has likely made the Claim.
—> You arrive at your Conclusion on the Claim by knowing whether all of its Elements are met.
* * *
Please let me know whether the above is helpful or too basic, and what questions you have for me. I’ll speak about Affirmative Defenses and IRAC essays in my upcoming letters.
Fondly,
💌 Amanda