What are “Affirmative Defenses”? Do I Need Them?
If you've been sued, affirmative defenses are something you must consider. People often ask “what is an affirmative defense?” In short, they are an “excuse” to what would otherwise be a violation of the law or a breach of contract. Wisconsin state statutes spell out these legal arguments and doctrines that provide a defense to your liability in a lawsuit.
Where to Find List of Affirmative Defenses to Wisconsin Debt Collection Lawsuit
Affirmative defenses exist (mainly) in a written statute. Here are the defenses listed in Wis. Stat. 802.02(2):
accord and satisfaction, arbitration and award, assumption of risk, contributory negligence, discharge in bankruptcy, duress, estoppel, failure of a condition subsequent, failure or want of consideration, failure to mitigate damages, fraud, illegality, immunity, incompetence, injury by fellow servants, laches, license, payment, release, res judicata, statute of frauds, statute of limitations, superseding cause, and waiver.
There are other defenses outside of the options listed in the statute, but this list contains the main and common affirmative defense used in cases.
How Important are Affirmative Defenses?
If you fail to list an important affirmative defense you could lose your lawsuit. Remember that affirmative defenses are a critical opportunity to protect your legal interests and prevent the other side from winning. However, you should never list every affirmative defense listed above in an effort “to play it safe.” Throwing in every defense (like the proverbial “kitchen sink”) could cause the court to reject of all the affirmative defenses. Plus, too many useless defenses draw attention away from the winning defenses. A properly asserted affirmative defense may cause you to win the case; so don't miss asserting them.
What Happens if I Miss or Forget an Affirmative Defense?
Don't panic; you may be able to amend/update your answer to list the extra defenses. Just check any documents from the court to see if they set a deadline for your amendments. If you don't see any deadlines, write a letter to the Court explaining that you want to amend your affirmative defenses. Pro Practice Tip: don't forget to enclose a copy of your updated answer to list the new defenses. Title that document “Amended Answer and Affirmative Defenses.”
Help – I'm still Confused and a Bit Overwhelmed
If you're concerned that you might be in over your head, don't hesitate to call for a free consultation. During your free consultation we'll go over the following:
- What creditor/debt collector has sued you.
- Details (if you know them) from the facts in the lawsuit.
- What affirmative defenses you may have.
- What lawsuits you could bring against the wrongdoer (and what to expect from the case).
Will this Cost Me Anything?
Our initial consultations are always free. During the free initial consultation we'll be able to make the determination of the type of case you have, along with potential routes for a defense. We offer online scheduling for appointments.
We provide representation in debt defense and collection cases in Wisconsin, including Racine, Kenosha, Green Bay, Appleton, the Fox Valley, Milwaukee, West Allis, Waukesha, Walworth County, Dane County, Madison, La Crosse, Eau Claire, Superior, Ashland, and anywhere in-between.