- Jeff Vail vail-law.com
The Answer: How (and When and Why) to Draft One
This article is part of Vail Law’s open-source litigation and legal risk management checklist. Connect with me on LinkedIn.
The Answer is a pleading that responds to the Complaint. It traditionally responds, point-by-point, to each numbered allegation made by the Plaintiff(s) in the Complaint, and also asserts Affirmative Defenses.
Here’s a checklist, set of best-practices, and brainstorming points for when and how to file an Answer:
In general, you have 21 days from service of process of the Summons and Complaint to file a responsive pleading – which may be an answer (see below). There are situations (such as where you waived and accepted service of process rather than being formally served) that you may have longer to respond, in some cases 30 or even up to 60 days.
Discuss the Complaint in detail with your client, and get their input on every factual allegation it contains. This interview alone may or may not be sufficient under F.R.C.P. 11 to either admit or deny a factual allegation, so also identify what additional information and investigation will be necessary to truly understand the factual situation and your client’s position, and perform the necessary investigation.
Ask for an extension of time to respond if necessary (especially if required to perform an adequate investigation of how to respond) – Counsel will almost universally grant an extension of up to 21 days to respond to a Complaint, and if they refuse the Court will almost universally grant an opposed motion for such an extension. Ensure that you ask for an extension “to answer or otherwise respond,” so that you have not committed to filing only an Answer, and can decide to instead file another type of response (see below).
Evaluate the claims (and elements thereof, see Litigation Checklist), the basis for jurisdiction, the basis for venue, and the potential counterclaims or third-party claims your client may want (or need) to bring.
Depending on whether you are in state court, or if the case has just been removed to federal court (by another party), consider whether you want to file a motion to remove (from state to federal court), or a motion to remand (from federal to state court).
Determine whether you will file an Answer only (being aware that this may preclude you from ever filing certain types of motions), file only some other type of motion only (e.g., a motion under F.R.C.P. 12 to dismiss, a motion to strike, a motion for more definite statement under Rule 9(b), etc.), whether you will file an Answer and another motion simultaneously, and whether you want to (or are required to) file counterclaims, cross-claims, or third-party claims simultaneously.
In some circumstances it may be prudent to file bankruptcy and allow the automatic stay to prevent the need to answer a complaint. The details of when this strategy is (or is not) appropriate are far beyond the scope of this article.
Additionally, and only very occasionally, not responding to a lawsuit at all (and allowing Plaintiff to obtain default and default judgment) may be an advisable strategy. This is a high-risk maneuver, so make sure you have received thorough and carefully considered legal advice specific to your broader situation before you entertain this option.
When drafting an Answer, ensure that you have responded specifically to every numbered allegation in a complaint. There are a number of potential responses that you should list by corresponding numbered paragraph (or sub-paragraph) in the Complaint:
Admit. (You have now formally admitted EVERYTHING in the numbered paragraph. This may be reversible, but an attempt to withdraw an admission can (a) be denied, and (b) can be difficult and time consuming, so make sure you really intend to admit what you admit).
Deny. (This denies everything in the associated numbered paragraph)
You can also admit portions and deny portions of a paragraph, which may be essential where a Complaint has lengthy, multi-sentence paragraphs (e.g., “Admit that XXX is a resident of Colorado, but denies all other allegations in Paragraph 13 of the Complaint,” or “Admits the allegations in sentence 1 of Paragraph 4 but denies the allegations of the remaining eleven sentences of Paragraph 4 of the Complaint). Ensure that you are specific and cover everything. If there is potential for confusion, the safest approach is to admit very specific and limited points, and to provide a catch-all “denies all other allegations in Paragraph X of the Complaint.
Deny based on lack of knowledge (e.g., “Deny knowledge or information sufficient to form a belief as to the truth of the allegations contained in Paragraph 7, and accordingly deny the same.”). If, following investigation, you are genuinely not sure how to best respond to a given paragraph, default to this option.
If a paragraph pertains to another party, and makes no allegation containing the party filing this Answer, it may be appropriate to state that no response is required (e.g., “Paragraph 6 does not address the answering Defendant, and accordingly no response is required.”).
There is no requirement to respond to a conclusion of law stated in the Complaint. For example, if the Complaint states that “the ACA requires insurers to . . . ,” an appropriate response may be that “Paragraph 11 of the Complaint states a conclusion of law to which no response is required.” However, be careful where conclusions of law and allegations of fact are mixed into a paragraph. It may also be prudent to end such a response with “However, to the extent Paragraph 11 contains any allegations of fact, those are denied.”
Most Complaints contain some language that “Plaintiff adopts and incorporates herein the allegations in Paragraph X through Y, above, as though fully restated herein.” The appropriate response in an Answer to such a paragraph is “Defendants adopt and incorporate herein each of their responses, denials, and affirmative defenses stated in this Answer.”
After you have responded to each numbered paragraph, it is traditional to assert Affirmative Defenses. Vail Law’s Litigation Checklist contains an extensive list (currently 229) of potential affirmative defenses for your review. However, DO NOT PLEAD A LAUNDRY LIST. If you plead all 229 affirmative defenses you will certainly draw the ire of your judge (and may lose a motion to strike all of your affirmative defenses). You should be judicious with which affirmative defenses you list, including those you have a good faith basis to think may apply. The process of amending the answer to add additional affirmative defenses is relatively easy and nearly always granted when done timely and for good reason.
Additionally, at the start of your affirmative defenses, you should add a reservation of rights statement, something like “The statement of any defense hereafter does not assume the burden of proof for any issue as to which applicable law places the burden on the Plaintiff.
The affirmative defense section should conclude with another reservation of rights statement that you may amend to add more affirmative defenses in the future, something like “The Complaint or any relief sought by Plaintiff is barred, in whole or in part, by such additional defenses as Defendants may have that cannot now be articulated due to the generality of Plaintiff’s pleadings and the fact that discovery has not yet commenced. Accordingly, Defendants reserve the right to supplement the foregoing and to raise additional defenses as the case progresses.”
An Answer traditionally ends with a “WHEREFORE” clause that responds generally, and sometimes point-by-point, to the Plaintiff’s WHEREFORE clause and requested relief. An example of such a statement is:
WHEREFORE, Defendants [NAMES] respectfully request that the Complaint be dismissed with prejudice and that they be awarded costs, including reasonable attorney fees, along with such other and further relief as the Court may deem just and proper.
Jury Trial: Last, but certainly not least, consider whether you want to make a jury demand in your Answer. The law varies by jurisdiction—in some courts you can easily make a request for a jury later, in others if you do not make a jury demand (and often pay a jury fee) in your answer you have forever waived the right to request a jury. Not all claims and issues can be decided by a jury (for example, claims in equity and requests for injunctive relief are not submitted to a jury), so the appropriate wording is something like “Defendant requests a trial to a jury on all issues so triable, including as to issues of law and fact contained in its Affirmative Defenses.”
When considering whether to make a jury demand, first look to see if the Plaintiff made one in the Complaint. However, even where a Plaintiff’s Complaint contains a jury demand, you must still decide if you want a jury trial or not. The reason is that if no Defendant makes a jury demand, in most jurisdictions the Plaintiff may later remove the jury demand unilaterally and force a bench trial, and it is often too late at that point for the Defendant to make a jury demand. As a very general rule, if the Plaintiff makes a jury demand, the Defendant should also make a jury demand, if for no other reason to make the future decision to eliminate a jury trial one that requires mutual assent and negotiation.
Another best practice is to search PACER or your state's local electronic case filing system to find cases similar to the Complaint you are answering and download or order the Answers filed in those cases as potential exemplars. Sometimes the name of the lawyer, the firm filing the answer, or the subsequent progression and motions practice in the case can tell you a great deal about how "successful" a given Answer was.
The actual function of an Answer in most civil litigation is to limit the scope of discovery, motions practice, and trial to those issues that remain contested, and to preserve affirmative defenses for later use (and potentially to widen the scope of what is "relevant" in discovery). The Answer is a pleading that you'll rarely get any credit for doing perfectly, but that can truly undermine your defense if you get it wrong - in other words, perfect for a checklist-driven approach.
View Vail Law’s complete litigation and legal risk management checklist or contact us to discuss your claims in detail.