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Answering Statement and Affirmative Defenses - What are your thoughts?

Under AAA Commercial Rule R-5(a), if a Respondent does not file an Answering Statement, it is deemed to have generally denied the claims. But in doing so, does the Respondent nonetheless have an obligation to apprise the Claimant of the affirmative defenses it intends to pursue? Conversely, if a Respondent does file an Answering Statement and interposes certain affirmative defenses, is the Respondent now limited to those articulated defenses, even though it had no obligation to file an Answering Statement in the first instance?

Please provide your thoughts/comments below.

Comments (7)

Judge Gerald Harris:

The question as framed conjures up the complexity of pleadings in actions at law, a morass that is supposed to be avoidable by providing for arbitration. The concerns implicit in the question, namely unfair surprises at the hearing, can be met by a well conducted preliminary conference which elicits necessary information and insures that the documents to be relied upon are exchanged in advance.

The problem assumes a literal following of Rule R-5(a). This problem never arises in a well-managed commercial arbitration where a thorough scheduling order is entered by the arbitrator after a very early conference with the parties and counsel. Claims, counterclaims, defenses, and affirmative defenses in a well-managed commercial arbitration are discussed in the initial scheduling conference with the goal of getting all claims, counterclaims, defenses, and affirmative defenses disclosed and focused by stated deadlines in the initial scheduling order. The parties know that if claims, counterclaims, defenses, and affirmative defenses are not plead by stated deadlines in the scheduling order, they will not be heard. Yes, to answer the question posed, those matters not disclosed and plead are not heard, subject to what particular due process concerns apply in a specific case. What this problem also raises is the challenge for the arbitrator to get the parties to disclose, focus, and clarify all claims, counterclaims, defenses, and affirmative defenses early in the process. Many litigators relax when they represent a party in arbitration. For many litigators arbitration is a "day at the spa," not the rigorous intellectual and presentation challenge that best arbitration practice requires.

There is no penalty under the rules for failing to plead affirmative defenses. In order to bar a respondent from submitting its proof in support of an affirmative defense, there would have to have been a prior order from the arbitrator setting a deadline to do so. This is not done in practice, for good reason, viz. arbitration is not litigation.

mark c zauderer:

I agree completely with the forgoing comments. I would add one point: once it is determined before the hearing what "affirmative defenses" are being pursued, it is also important to clarify, with an opportunity for counsel to be heard, which "defenses" actually carry with them the burden of proof on those issues. In court litigation, many defenses initially asserted as "affirmative" defenses are not that at all; rather, in many instances, an issue raised as a defense actually remains part of the plaintiff's (or claimant's) burden on that issue. The parties are entitled to clarity on this, so they can plan their proofs accordingly.

Peter Altieri:

Good points. Another thing to keep in mind is that in law, very few defenses are truly "affirmative." In litigation many defenses are often plead as being affirmative which in fact are not. If there is a valid "affirmative" defense, it may well be the subject to a pre-hearing motion.

Edwin H. Stern:

I also agree with the above comments, and particularly with those of Judge Harris about the importance of the preliminary conference. I always enter orders with discovery end dates and endeavor to address these issues at the last prehearing conference when listing the issues to be addressed, if not addressed previously. It seems to me that the issues should be addressed and decided based on the basis of fairness in each matter, with particular emphasis on fairness and surprise. As a last resort, the case can be adjourned for a brief period if necessary to accommodate a fair exploration of all relevant issues.

One other thought: If the parties have agreed the Rules of Evidence apply, then the parties can object to evidence that varies from the pleadings.

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