Chapter 4 - § 4.3 ANSWERS

• Jurisdiction: Colorado

§ 4.3 Answers

§ 4.3.1 State District Court

Once a defendant has been served with a complaint filed in state district court, and counsel has determined that the complaint must be answered, counsel must begin the process of responding to the complaint in a substantive manner. Under C.R.C.P. 11(a), the attorney's signature on the answer to the complaint, as well as any other pleading, certifies to the court that the attorney has not only read the pleading he or she has signed, but that "to the best of his knowledge, information, and belief formed after reasonable inquiry, it is well grounded in fact and is warranted by existing law or a good faith argument for the extension, modification, or reversal of existing law," and that the statements in the answer or pleading are not being asserted for some improper purpose.

As the term is used in Rule 11, "reasonable inquiry" means, at the very least, investigating the facts and the legal remedies and defenses available to the client based on those facts, before making any representations to a court.³ As in all aspects of preparing a case, the first step in responding to a complaint is to gather the facts regarding the client's position vis-à-vis the allegations in the complaint. Counsel must carefully interview the client regarding each fact alleged in the complaint, both to decide on the response to the allegation and to formulate the defenses to any allegations. Depending on the circumstances, counsel may have to do a more extensive and independent investigation regarding the facts of the complaint outside of what the client has provided by way of information and documents. Many an attorney has been embarrassed after filing a pleading, and then finding out that the facts are not exactly as related by the client, that documents exist which convincingly contradict the client's position, or that there are other facts or defenses that should have been included in the response to the complaint.

Rule 11 also prohibits attorneys from asserting any defense or position for an improper purpose. Improper purposes include making assertions in the pleadings to harass the other side, to cause unnecessary delay in the litigation, or simply to increase the costs of the litigation.⁴ Counsel must carefully assess the difference between using a legitimate litigation strategy that protects the client's interests and using litigation tactics for an improper purpose. The line between these two considerations is not always clear. For example, if defense counsel insists that the plaintiff effect proper service even though the defendant can easily be properly served, plaintiff's counsel may opine that the defendant is frivolously asserting defenses based on "technicalities." But defense counsel in the same situation may believe his or her insistence that plaintiff's counsel adhere to procedural rules is justified by an attorney's duty to vigorously defend his or her client.⁵ A defense attorney does not have a duty to make suing his client easier for the plaintiff's counsel.

The rules for responding to the allegations of a complaint are basically the same as the rules for making the allegations in a complaint—be short and to the point. If the defendant is denying or admitting an allegation in its entirety, a simple denial or admission is enough. If the defendant is without knowledge regarding an allegation, the response should say so. However, if the defendant is admitting in part, and or denying in part, the response should specifically set out what is admitted and what is denied.⁶ If an allegation in a complaint is not denied, admitted, or responded to as outside the defendant's knowledge, the allegation will be deemed admitted.⁷

In simple terms, the allegations to which the client admits should be admitted in the answer. Those allegations that the client disputes should be denied. If the assertion being responded to in the complaint is partially true, and partially in dispute, the response should indicate that the defendant admits a particular part of the allegation, and denies the remainder. And if the client and counsel do not have enough information to admit or deny an allegation, the answer should say so. The proper use of the rules with regard to pleadings⁸ should allow the parties and the court to quickly determine what issues are actually in dispute so that the lawsuit can proceed as efficiently as possible.

When making allegations in an answer, a defendant must be careful to allege or deny with sufficient particularity to put a claim in issue, just like when making allegations in a complaint. For example, if a plaintiff alleges the specific performance of conditions precedent to a claim, a defendant should deny those parts of the condition precedent that the defendant alleges were not met.⁹ See Form 4-1: Sample Answer.

Affirmative Defenses

A defendant has an affirmative duty to set out certain defenses in its answer, if they apply and the defendant wants to get the benefit of such a defense. These defenses, which must be asserted or they are lost by nonassertion, are known as "affirmative defenses." Specific affirmative defenses listed in the rule include "accord and satisfaction, arbitration and award, assumption of 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, and any other matter constituting an avoidance or affirmative defense."¹⁰ But this list is not all-inclusive—there are other defenses and "avoidances" that must be affirmatively pled, such as official or sovereign immunity,¹¹ lack of mutuality,¹² and real party in interest.¹³ In addition, an attorney responding to a complaint or counterclaim should assert all defenses of which he or she is aware at the time of the answer.¹⁴ And when responding to a counterclaim, a party must specifically set out the existence of any mitigating circumstances that would reduce the amount of damages the opposing party is claiming against him or her.¹⁵

A good practice for a defense attorney is to review the list of affirmative defenses in C.R.C.P. 8(c) every time he or she prepares a response to a complaint. This practice will help ensure that the attorney does not overlook any defense that is factually supportable and that must be asserted at the outset of the lawsuit. The attorney should know the facts of the case before preparing an answer, and should know all the affirmative defenses listed in Rule 8(c) and the kinds of cases to which they apply. Affirmative defenses specific to certain transactions are set out in various other statutes. These additional affirmative defenses should also be considered and included in the answer, if applicable and available. A good resource for reviewing elements and defenses applicable to various claims is the Colorado Jury Instructions for Civil Trials,¹⁶ and counsel should refer to the jury instructions relating to the claims asserted against each client before responding to a complaint. Another good source for in-depth information about elements and defenses is Colorado Causes of Action: Elements, Defenses, Remedies, and Forms.¹⁷ This book discusses 36 of the most common causes of action and includes a CD with fillable complaint forms for each of the causes of action discussed.

Defense counsel should be aware that when alleging fraud as an affirmative defense, the basis of the claim of fraud must be set out with particularity to comply with C.R.C.P. 9, just as such a claim must be set out in a complaint. For example, when pleading fraud in the inducement as a defense, the pleading must set out the particular damage attributable to that claim, and include a request for rescission.¹⁸

As with the other elements contained in pleadings, affirmative defenses should be set forth in the answer in a clear and concise manner. Pleading defenses in the alternative is allowed, even if the defenses are inconsistent with each other, so long as the pleading complies with C.R.C.P. 11, i.e., that the facts and the law support the assertions. In other words, even if there are different and conflicting theories on which a defendant may escape or reduce liability, the conflicting theories and defenses can be asserted in response to a complaint, as long as they have a good faith basis in law and fact.¹⁹

The attorney's responsibility under C.R.C.P. 11 attaches before the attorney signs the pleading. But if the signing attorney voluntarily withdraws the ungrounded claim, action, or defense within a reasonable time after he or she knows or should have known that "he would not prevail," an award of fees and costs against the attorney and the client can be avoided.²⁰ When filing an answer, defense attorneys may believe themselves obligated to assert various affirmative defenses that must be asserted at the time of the answer, the factual bases of which may not yet be fully known, to avoid losing the right to assert those affirmative defenses. Using the word "may" when asserting these affirmative defenses (the ones that may exist but the facts to support them are not yet fully known) puts the opposing party on notice that the defense may be asserted while complying with C.R.C.P. 11. (E.g., "Plaintiff's damages may be reduced or barred because of Plaintiff's comparative fault.") Defense attorneys who find themselves in this position should withdraw any such affirmative defenses in a timely fashion if and when they become aware that the facts do not support the defenses.

A court may grant leave to amend a party's answer to add affirmative defenses at any stage of the litigation process pursuant to C.R.C.P. 15(a); however, the court can deny leave to amend if the amendment would prejudice other parties or cause undue delay.²¹

Cross-Claims

A "cross-claim" is a claim that a party brings against another party who technically is on the...