When it comes to affirmative defenses – less really is more

Lawyers' Forum

By Young B. Kim and Alexandra Benigni

Kim is a U.S. magistrate judge and sits in the U.S. District Court for the Northern District of Illinois. Benigni is a second-year law student at Loyola University Chicago School of Law and served as Kim’s spring 2019 judicial extern.

Posted May 6, 2019 4:35 PM

Updated May 7, 2019 9:53 AM

Attorneys should question the supposed best practice of pleading the maximum number or a boilerplate list of affirmative defenses. Pleading an unnecessary number of affirmative defenses puts both the lawyer and the client at risk.A lawyer who pleads affirmative defenses without a reasonable belief in their viability could be subject to sanctions. And the practice often results in greater expense to the client because pleading excess affirmative defenses may unnecessarily expand the scope of discovery and motion practice …

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