The Florida Bar

Florida Bar Journal

Florida Affirmative Defenses and Procedural Objections, 2015 Edition

Book Reviews

by Joshua B. Spector and Paul D. Turner

Book cover image: Florida Affirmative Defenses and Procedural ObjectionsPleading affirmative defenses can be tricky. Many lawyers are unaware of, or disregard, the pleading standards. Others assert defenses scattershot, without regard for their applicability to the case at hand. This book enables lawyers to rise above this kind of substandard affirmative defense pleading and effectively defend their clients against asserted claims. Unlike many law books that collect dust, Florida Affirmative Defenses and Procedural Objections proves its usefulness every time a lawyer needs to respond to a complaint.

The book walks through affirmative defenses in Florida, giving an explanation, the elements, and supporting authority. Keeping this book handy while drafting affirmative defenses allows a litigator to ensure that he or she includes all relevant defenses, along with the factual allegations necessary to support the defense.

This book is equally helpful to plaintiffs’ lawyers who need to draft motions to strike affirmative defenses, since it contains case cites for each listed affirmative defense. Of particular value is the chapter on reply pleading. Many lawyers routinely file a boilerplate reply along the lines of “the plaintiff denies all of the defendant’s affirmative defenses and demands strict proof thereof.” Spector and Turner explain that such a reply is a waste of time, since plaintiffs are deemed to have denied the factual allegations in the affirmative defenses. Instead, they explain the true purpose of the reply, “to assert defenses to the defenses.”

The book also discusses the available defenses under Fla. R. Civ. P. 1.140 and motions that can be asserted in response to a complaint. These chapters give a useful overview of these defenses and motions, including a discussion of seldom-used procedural mechanisms — such as the motion to strike sham pleadings and the motion to involuntarily dismiss action — that can prove highly useful when dispatched appropriately.

This is the rare law book that is valuable to just about every litigator, regardless of their area of expertise or which side they represent. Highly recommended.

Eric W. Ostroff is a member of The Florida Bar practicing in the Miami office of Meland Russin & Budwick.