Being an aggressive litigator is what a lot of clients want. But you also need to know how to play defense. In football, when a team is up by only a few points and has the ball. You have to decide: do you go for it, or punt and “trust your defense?” Well, understanding affirmative defenses is an often overlooked part of probate and trust litigation. We think affirmative defenses Florida are so important that we gave a Florida Bar-approved continuing legal education seminar on this very topic. Now, let’s talk a bit about this subject, and a recent case.
Admitting Facts but Avoiding Liability
When you are served with a lawsuit, you receive a copy of the complaint.
- To start a lawsuit, a complaint is filed.
- When you receive a copy of the complaint, you have 20 days to respond.
- You can read more about timetables and how a case proceeds by reading the Florida Rules of Civil Procedure.
- Check out Florida Rule of Civil Procedure 1.140
- When you “answer” the complaint, you may raise affirmative defenses Florida.
- Affirmative defenses are not simple denials.
- Affirmative defenses are the type of “yea, but…..” defenses.
- Think of them this way: even if the allegations or accusations in the complaint are true, you still win !
- Examples of common affirmative defenses include statute of limitations and accord & satisfaction.
- Failure to properly raise affirmative defenses means that you waive those defenses.
4th DCA Opinion on Affirmative Defenses Florida — must read
On August 25, 2021, Florida’s 4th District Court of Appeal issued its opinion in the case of Waterfall Victoria Grantor Trust II, Series G. v. McDonald. This case dealt with Affirmative Defenses Florida. It also discusses waiver of defenses. This is an excellent case to learn about affirmative defenses. If you are involved in a trust lawsuit or a contract or probate case, consider reading this.