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The Lawyer’s Guide to Drafting a Satisfactory Answer; or Another Article About Applicable Advice for Attorneys to Adequately Author an Appropriate and Acceptable Answer in All Areas

by Arthur J. Park

The importance of a defendant’s answer cannot be overstated. This is your one chance to raise important legal theories, such as personal jurisdiction, venue, and improper service. In my experience as a young lawyer, there is nothing more frustrating than being asked to work on an existing litigation file, reading the answer that someone else filed, and realizing that key affirmative defenses have been missed—and therefore waived forever!


In state court, the answer must be filed within 21 days of service of the complaint. Va. Sup. Ct. R. 3:8(a). Please keep in mind that many of your clients have affairs in multiple states and may assume the deadline is 30 days. If you chose to file a motion to dismiss or related motion instead, you must answer within 21 days of an order denying the motion. Va. Sup. Ct. R. 3:8(a). If electronic filing is not available in your court, dropping the answer in the mail is not enough; you need some way to ensure that it will reach the court clerk in time, such as certified mail, UPS, courier, or hand-delivery. Make sure the answer is docketed before the deadline!


In federal court, the answer must be filed within 21 days as well. Fed. R. Civ. P. 12(a)(1). After a motion to dismiss is denied, the defendant only has 14 days to answer. Fed. R. Civ. P. 12(a)(4). If the case has been removed from state court to federal court, the defendant can file its answer up to seven days after the notice of removal is filed. Fed. R. Civ. P. 81(c)(2). So there is no rush to try and file the answer on the same day as the notice of removal. File the notice of removal, wait until you receive a civil action number from the court clerk, and then file your answer within seven days.


When in doubt, include all of the affirmative defenses that might apply. Better to raise it now and not need it than need it later and not have raised it. Rely on Secretary of State records with respect to venue, registered agent, and principal office. Did the plaintiff commit any form of contributory negligence?  Is there any possibility that the statute of limitations has expired?  Did the plaintiff serve the proper entity at the correct address? 


As Irish playwright Oliver Goldsmith said in the 1700s, ask me no questions and I’ll tell you no lies. Or as Lynyrd Skynrd said a few years later, “So don’t ask me no questions. And I won’t tell you no lies.” Although it may be difficult at the very beginning of the case, you must carefully analyze each paragraph of the complaint to determine whether your client will admit, deny, or punt (“this defendant is currently without information sufficient to either admit or deny the allegations”). Once a paragraph of the complaint is admitted in the answer, it may be difficult to convince the judge that an amended response is needed.


If you represent two codefendants in the same action, they probably need to file two separate answers, even if the responses and defenses are eerily similar. I would not recommend trying to incorporate anything by reference in the answer (such as affirmative defenses raised by someone else). If you want it in your answer, put it in your answer.


You should also consider whether to include a counterclaim against the plaintiff (Va. Sup. Ct. R. 3:8) or a cross-claim against a co-defendant (Va. Sup. Ct. R. 3:10). In certain situations, the counterclaim may be considered compulsory or mandatory if arises out of the same transaction or occurrence mentioned in the complaint. If so, the failure to raise the counterclaim could result in waiver. However, there is no such thing as a compulsory cross-claim.


I hope this article has “answered” some of your questions.


Arthur J. Park is a partner with Mozley, Finlayson & Loggins LLP, practicing in the areas of aviation litigation, subrogation, civil defense, and insurance coverage. He has been licensed in Virginia since 2010.