Dear 1L: Definitions of Claims, Defenses & Affirmative Defenses

💌 Dear 1L,

There is a difference between a defense and an affirmative defense. Learn it before doing a law school exam.

—>See link in comments for part 1 of this primer, which describes Claims and Elements of Claims. Here, however, I have included an abridged version of what I wrote there about Defenses (for your ease of reference).

🔷 DEFENSES

Defenses seek to prevent the plaintiff from meeting her burden of proof with respect to the Elements of her Claim.

🔸 The defendant’s Defenses should support a conclusion opposite from that which the plaintiff seeks with respect to each Element.

🔸 The defendant does not bear the burden of disproving the Elements of a plaintiff’s Claim.

🔸 Discuss Defenses and Claim Elements within the same section under each Element, presenting the positions of both plaintiff and defendant, with adequate weight on each.

🔷 AFFIRMATIVE DEFENSES

Affirmative Defenses are analytically distinct from regular Defenses. (Another name for Affirmative Defenses in Torts is “privileges”).

▫️ Some of the Affirmative Defenses that you’ll learn are: self-defense, assumption of the risk, and comparative & contributory negligence (Torts); and mistake, incompetence, and illegality (Contracts).

With Affirmative Defenses, the defendant seeks to avoid or limit liability or damages EVEN IF the plaintiff is successful in proving all the Elements of a Claim.

▫️ The most common example is a criminal case where the Defendant admits to carrying out a crime, but argues insanity to try to get off the hook.

🌟 Key for your purposes are 2 things:

🔸 You must discuss Affirmative Defenses separately from your discussion of the Elements of a Claim. Never jumble.

🔸 Do a full IRAC for each Element of each applicable Affirmative Defense. Remember to give attention to both the defendant’s position and the plaintiff’s position.

N.B. The above focuses primarily on courses like Torts and Contracts, where the issues involve the merits of a Claim. Civ Pro differs terminology-wise, because procedural rules, not the merits of a Claim, are the focus, but the underlying structure of a Civ Pro essay is the same as in other courses.

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Please let me know if the above type of content is helpful and what questions you might have for me.

The above is a lot, I realize, but the more ways you start to hear things explained and the more you practice structuring and writing IRAC essays, the clearer things will become.

Fondly,

💌 Amanda