Raise It or Waive It: Potential Problems for Practitioners with Minimal Pleading Requirements

IMG_0821-300x200Most people know that a lawsuit begins with the filing of a complaint followed, in most cases, immediately by the filing of an answer. Universally referred to as “pleadings,” these legal documents serve as the parties’ first formal written statements setting out either the claims against or defense to another party’s claims in a civil action. What is not universal, however, is the requirements for parties and lawyers when bringing these actions. Depending on the court in which they are filed, claims being asserted, and available defenses, the pleading standard can vary tremendously. For example, for litigants bringing cases in United States Federal Districts Courts, the pleading standard requires that the complaint must set forth at least “enough facts to state a claim for relief that is plausible on its face.Ashcroft v Iqbal, 556 U.S. 662 (2009). For litigants in Alabama State Courts, however, the pleading requirements are materially broader and far less scrutinized when compared to the federal standard. While Alabama’s liberal pleading standard simplifies the process for bringing actions, it can potentially create major problems on the back-end of a case for lawyers with their clients.

Often referred to as a “notice” or “no-set-of-facts” pleading standard, complaints in Alabama are merely required to include “a short and plain statement of the claim showing the pleader is entitled to relief.” Ala. R. Civ. P. 8 (a). Over time, this culture of pleading the bare minimum has, in many cases, lead to minimal review and response from the other party. Despite routine compliance with the minimal pleading standard, such a lackadaisical approach often results in the neglect of important requirements set out in other rules of civil procedure.

The standard and requirements for civil pleadings in Alabama are, in large part, governed by Alabama Rules of Civil Procedure Rules 8 and 12. Pursuant to Rule 12(a), once served with a summons and complaint, a defendant¬† has 30 days to file a responsive pleading. Under Rule 8, a party’s failure to respond to or deny any averment raised in the Complaint, other than those of damages, amounts to an admission of those claims. Given that the vast majority of answers are timely and amount to a blanket denial to everything raised in the complaint, these two requirements are largely inconsequential. Often overlooked by practitioners, however, are the requirements for raising certain defenses and, more importantly, the consequences for failing to do so.

Pursuant to Alabama Rule of Civil Procedure 8(c), a party served with a complaint is required to affirmatively raise certain defenses in the initial responsive pleading. These defenses are known as compulsory affirmative defenses and include:

  • Accord and Satisfaction,
  • Arbitration and Award,
  • Assumption of the Risk,
  • Contributory Negligence,
  • Discharge in Bankruptcy,
  • Duress,
  • Estoppel,
  • Failure of Consideration,
  • Fraud,
  • Illegality,
  • Injury by Fellow Servant,
  • Laches,
  • License,
  • Payment,
  • Release,
  • Res Judicata,
  • Statute of Frauds,
  • Statute of Limitations,
  • Waiver

The law in Alabama is clear that a party’s failure to raise any of these defenses in the responsive pleading operates as a waiver of any such defense. See Ala. R. Civ. P. 8(c); Hayes Payne, 523 So. 2d 333 (Ala. 1987); Jackson v. Waller, 410 So. 2d 98 (Ala. Civ. App. 1982); Miller v. Brown-Fikes Ford, Inc., 370 So. 2d 1052 (Ala. Civ. App. 1979). While, depending on the circumstances, a trial court may have discretion to allow a party to amend its pleadings to include defenses not initially pleaded, the black letter law is unequivocal: If you don’t raise it, you effectively waive it. As such, it is imperative for lawyers to be conscious of the specific allegation raised and all potential defenses thereto when filing a responsive pleading.

In spite of the potential pitfalls accompanying Alabama’s minimal pleading requirements, practitioners on both sides of the bar should employ a detailed approach to the pleadings at the outset. Simply put, attorneys responding to a complaint should carefully review the factual and legal claims to forecast any and all potential defenses that need to be raised in an answer, so to avoid waiving valuable defense theories in the future. Accordingly, plaintiff’s attorneys in receipt of a responsive pleading to their complaint, should examine thoroughly the same to determine whether the defendant failed to raise any compulsory defenses, which they could move to strike if asserted in the future by a defendant.