“Cardinal Law, in Lawsuit, Faults Child and Parents in Abuse Case.” That was the headline of a Fox News Article on April 29, 2002. The headline was driven by nothing more than a boilerplate affirmative defense in an answer filed on behalf of Cardinal Bernard Francis Law and the Archdiocese of Boston in a lawsuit brought by a person alleging that he was abused as a child by a priest. The lawyers who filed the answer alleged that the “negligence of the plaintiffs contributed to cause the injury or the damage” and that any damages assessed against Cardinal Law “should be reduced in proportion to the said negligence of the Plaintiffs.” Lawyers recognize this as an ordinary comparative negligence defense that must be raised in a responsive pleading or be waived. In the eyes of a non-lawyer, however, this statement is an accusation by the defendants that the child and his parents were responsible for his abuse. Plaintiffs’ counsel seized the opportunity and called the Cardinal’s accusation “appalling”, adding that “[t]here is no set of circumstances under which a 6-year-old child could be blamed for something like this.” In a case that already had emotions running high, additional bad publicity certainly did not help the defense’s cause.
Similarly, in a February 22, 2016 article in the New York Daily News, two police officers who were sued civilly by the family of a person whom they shot were excoriated in the newspaper for “blaming the victim” when their lawyers raised, as an affirmative defense, that “the alleged incident and damages, if any, were wholly or in part caused by the culpable conduct” of the decedent.
In most jurisdictions, failure to raise certain affirmative defenses, such as contributory negligence and assumption of the risk, results in a waiver of those defenses. Therefore, lawyers routinely raise these defenses in responsive pleadings. There are certain cases, however, where raising such defenses may not be prudent, or, alternatively, the manner in which such defenses are raised should be carefully evaluated.
At Ferguson, Schetelich & Ballew, P.A., each matter is evaluated on its own merits and we take into consideration not only issues of publicity but also whether raising certain affirmative defenses can be used by plaintiffs to their advantage. In certain circumstances, whether or not an affirmative defense is ultimately viable is not determinable until discovery is complete. In those cases, we make an initial determination whether or not to raise the affirmative defense, and if so, we typically couch it in such a way that to permit some flexibility. For example, in a case involving a young child who is legally old enough to be found contributorily negligent, we may raise the defense as follows: “Defendants have not had an opportunity to conduct discovery or to obtain information from the Plaintiffs concerning their allegations, and therefore, Defendants raise the affirmative defense of contributory negligence.” The manner in which we raise the affirmative defense may differ depending on circumstances of the case.
Prudent attorneys avoid boilerplate language. Each case must be evaluated on its merits, especially in the internet age where something as simple as an affirmative defense can lead to unwanted negative publicity.