Waiving a defense can severely limit your client’s options. Learn how to preserve every defense and avoid pitfalls that could lock you into unfavorable positions.

In civil litigation, every defense counts—but if not properly raised, some defenses can be waived. A defense not included in your Answer may be deemed waived forever, meaning it can’t be used later in the case. For defendants, this can be a major risk, especially if they miss the opportunity to assert critical defenses early in the process.

In this article, Legal Husk outlines the common mistakes that lead to waiving defenses and how to avoid these pitfalls when drafting your Civil Answer.

1. What Does "Waiving a Defense" Mean?

✅ Waiving a defense means that you forfeit the right to raise it later in the litigation. This can happen if:

• You fail to raise the defense in your Answer or in the appropriate court filing.

• You delay raising the defense too long, leading the court to assume you have waived it.

🎯 Once waived, certain defenses—like lack of jurisdiction or failure to state a claim—can no longer be asserted, even if they’re critical to the case.

2. Common Defenses That Are Often Waived

✅ Several defenses are easily waived if not raised promptly:

• Lack of Personal Jurisdiction: If you don’t assert this in your Answer, you may lose the opportunity to challenge the court’s jurisdiction over you.

• Failure to State a Claim: If you don’t raise this defense early, the court may let the plaintiff amend the complaint without dismissing the case.

• Improper Venue: If the case is filed in the wrong court, and you don’t raise this defense, you could waive your ability to move the case to the proper forum.

• Failure to Join an Indispensable Party: If you don’t assert that a necessary party is missing from the case, the court may continue the case without them.

🎯 These defenses must be raised in the Answer or in a motion before your Answer, depending on your jurisdiction.

3. When to Assert Defenses in the Answer

✅ To avoid waiving defenses:

• Assert all procedural defenses in the Answer or a Rule 12 motion (e.g., motion to dismiss) before the Answer.

• If you plan to file a motion to dismiss for lack of jurisdiction, failure to state a claim, or other procedural issues, make sure you raise them within the first 21 days after being served with the complaint (or before the Answer).

🚫 Failing to assert these defenses at the beginning can make them unavailable later in the case.

4. Preserve Affirmative Defenses in the Answer

✅ Affirmative defenses (e.g., statute of limitations, waiver, estoppel, consent) are crucial to protecting your client’s case:

• Assert every affirmative defense early to avoid waiving them later.

• Rule 8(c) requires defendants to include affirmative defenses in their Answer, and failure to do so can bar their use later in the litigation.

🎯 Don’t assume that your defense will be allowed to be raised in later filings; include them in your Answer to preserve your client’s full rights.

5. Avoid Waiving Counterclaims and Crossclaims

✅ If you have counterclaims or crossclaims against the plaintiff or other parties:

• Assert them in your Answer or in a separate motion, depending on your jurisdiction.

• Failing to assert them timely may prevent you from bringing these claims later in the litigation.

🎯 Counterclaims and crossclaims are just as important as defenses—don’t let them slip away due to oversight.

6. Use Rule 12(b) and 12(h) Wisely

✅ Under Rule 12(b), certain defenses—like lack of jurisdiction, improper venue, and failure to state a claim—must be raised in a motion to dismiss before filing an Answer or in the Answer itself.

• Rule 12(h) says that if you don’t raise these defenses in your first response to the complaint, you waive them.

• Make sure you timely raise these defenses at the appropriate stage.

🎯 Rule 12 is a powerful tool, but you must know when to use it to preserve your defenses.

7. Keep Track of Deadlines

✅ Timing is key to preventing waiver:

• Some defenses, like lack of jurisdiction or improper venue, must be asserted within specific time frames or risk being waived.

• If you delay raising a defense, the court may treat it as forfeited and proceed with the litigation as if you never had it.

🎯 Always track deadlines carefully and file your responses on time to preserve your client’s defenses.

8. How to Handle Defenses After the Answer

✅ If you fail to raise a defense in your Answer but later realize it’s essential:

• Seek leave to amend your Answer as soon as possible.

• In some cases, you may be able to assert a defense late if the delay didn’t prejudice the plaintiff or delay the case.

🎯 Amend your Answer before the case progresses too far to preserve your rights.

Sample Scenario: Waiving Jurisdiction and Venue Defenses

In a case where the plaintiff files in the wrong jurisdiction:

• The defendant fails to raise lack of personal jurisdiction or improper venue in the Answer.

• By the time the defendant realizes the mistake, the court has already moved forward with the case and waives the defense because it wasn’t raised early.

Result: The defendant is stuck defending the case in a jurisdiction they could have contested early, costing time and money.

Final Thoughts

Waiving a defense can significantly damage your client’s case, and once waived, it’s almost impossible to retrieve. By carefully managing your responses and raising procedural defenses and affirmative defenses in the Answer, you ensure that every tool is available to protect your client’s interests. Don’t let valuable defenses slip away—assert them early.

At Legal Husk, we help attorneys navigate the complexity of defenses and ensure they’re preserved, strategic, and timely.

Let Legal Husk Help You Preserve Your Defenses

Need help drafting an Answer that preserves your client’s defenses? Legal Husk ensures that every defense is raised appropriately and strategically.

📌 Ready to protect your defenses from waiver?

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Preserve your client’s rights. Defend your case. Legal Husk.

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