Responding to Affirmative Defense

In his July 2019 Illinois Bar Journal article, “Responding to Affirmative Defense,” Jake Crabbs, a law clerk for Justice Mathias W. Delort in the Illinois Appellate Court (First District), lays out a plan for responding to affirmative defenses in the early stages of litigation. To set the stage, he asks you to “[i]magine you have filed a civil complaint for breach of a simple personal-loan contract. Predictably, the defendant responds with a section 2-619.1 combined motion to dismiss and throws everything into it. After a tedious round of briefing and even oral arguments, the judge denies the motion entirely and orders the defendant to answer the complaint. Finally, you assume, this simple, little case can get moving. But you are wrong. When the defendant files her answer, she also raises 11 affirmative defenses. Eleven! Some of the defenses are merely one-sentence denials of your well-pleaded allegations and several were already raised in her motion to dismiss. Does opposing counsel even know what affirmative defenses are? Regardless, you are now in for another round of time-consuming motion practice.”

Read Jake’s article for practical responses and strategies when encountering such scenarios in the July issue of the Illinois Bar Journal.