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Preserving constitutional challenges

Preserving affirmative defenses

As we saw in an earlier post, an affirmative defense “raises new matter which, assuming the allegations in the petition to be true, constitutes a defense to the action and will have the effect of defeating plaintiff’s demand on its merits.” Webster v. Rushing, 316 So. 2d 111, 114 (La. 1975).

Preserving an affirmative defense is more of a process than a series of a few discrete steps. Initially, you must plead the defense in your answer to the plaintiff’s petition. See La. Code Civ. P. art. 1005. But you must not stop at merely pleading the defense: you must obtain a decision, either by summary judgment or at the trial of the case. If the latter, you must offer evidence at trial to prove the defense and insist that the judge or jury make a specific finding of fact on the defense. If the case is tried by jury, you must request the appropriate jury instructions and ask for the defense to be included on the verdict form.


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