What is an affirmative defense?

• A. A denial of liability by admitting facts but maintaining a legal justification
• B. A defense that arises from a procedural defect that does not raise new facts
• C. A defense that admits liability and seeks a smaller amount
• D. A defense that raises a new reason as to why the defendant should not be liable, and typically, on which the defendant bears the burden of proof

Answer: (D)

Affirmative defenses are arguments a defendant raises that introduce new facts or a new legal theory that, if proven, excuse or justify why liability should be defeated even if the plaintiff’s claims are true. Importantly, the defendant bears the burden of proving these defenses. This description matches the idea of presenting a new reason why the defendant should not be liable, and typically requiring proof by the defendant.

By contrast, a purely procedural defect focuses on how the case is brought or handled in court rather than on defeating liability itself. A defense that seeks to reduce damages addresses the amount owed rather than whether liability exists. And while some defenses involve admitting facts but offering a justification, the hallmark of an affirmative defense is that it introduces new facts or a new theory that shifts the inquiry to why liability should not attach, with the defendant carrying the burden to prove it.