Years ago, when I worked at a large international law firm, I never appeared in Louisiana state court. The vast majority of our practice was in federal court instead. After I started my own firm I found myself in state court more frequently, and some of the quirks took a little getting used to. (I’m embarrassed to admit that during my first month I tried to file state court pleading on letter sized paper, not legal. Oops.) One quirk I’ve never really understood is the Louisiana practice of pleading affirmative defenses first in an answer, before the admission or denial of the factual allegations. This is the reverse of federal practice (and California state court practice) and I have never even thought to ask why it is so. Digging through old cases today, I think I might have found an explanation.
First, some background. An “answer” is usually the first pleading a defendant files after he or she has been brought into court. An answer serves the same purpose in federal or state court: you must “admit or deny the allegations of the petition … [and] state in short and concise terms the material facts upon which the defenses to the action asserted are based, and shall set forth all affirmative defenses….” (La. Code of Civ. Proc. art. 1003). Federal Rule of Civ. Proc. 8(b) similarly requires a defendant to “state in short and plain terms its defenses to each claim” and “admit or deny the allegations asserted against it…”
Even though both answers contain the same information, the traditional order of presentation is flipped. Federal court answers begin by admitting or denying the allegations of the complaint, on a paragraph-by-paragraph basis, then set forth a numbered list of affirmative defenses. State court answers, however, often begin by listing affirmative defenses, then admitting or denying each allegation of the petition. I’ve always chalked this up to “one of those things,” and as far as I can tell it’s never made any substantive or practical difference.
Once upon a time, though, maybe it did make a difference. When researching an unrelated issue I came across the 1880 decision of Tupery v. Edmondson, 32 La. Ann. 1146 (1880), a lawsuit involving 434 sacks of rice and almost $2,000 in cash — a huge sum back then. The dispute centered around the legal jurisdiction of an Orleans Parish court over a St. John the Baptist parish plantation. The appellate court ultimately held that the jurisdictional challenge was waived because the defendant had appeared and defended himself on the merits without first excepting to the Orleans court’s jurisdiction. The decision cites three articles of the old Louisiana Code of Practice, one of which, Article 336, stated that “Declinatory exceptions may be pleaded in the defendant’s answer previous to his answering to the merits.” Mr. Edmondson’s attorney did the opposite, much to his eventual regret:
The defendant appeared and in his answer before setting up his plea to jurisdiction did answer to the merits by denying generally, all the allegations of the plaintiff’s petition. He thus waived his plea and brought himself within the jurisdiction of the Court and by tending the issue of general denial before pleading to the jurisdiction, became liable to personal judgment as well as to the judgment in rem…
Tupery, 32 La. Ann. at 1148-1149.
In other words, the Code of Practice required that an answer’s declinatory exceptions (which include challenges to jurisdiction or venue) had to be literally, physically set forth before any defense on the merits. By denying the plaintiff’s allegations on page 1, then challenging venue on page 2, you would have waived the venue challenge in its entirety.
This is, thankfully, no longer the law. Modern Code of Civil Procedure article 928(A) states that “declinatory exception and the dilatory exception shall be pleaded prior to or in the answer.” It no longer matters whether the exceptions are pleaded first, second, or at the very end of an answer. This article also states that “When filed at the same time or in the same pleading, these exceptions need not be pleaded in the alternative or in a particular order.”
This, I think, may answer the question that has pestered me since 2017. Once upon a time, it actually mattered to a Louisiana lawyer whether certain affirmative defenses were pleaded first or last in the answer. Even though it no longer makes any difference, but habits stick. Lawyers as a group are extremely nervous of tearing down Chesterton’s fence. (The maxim that “a fence should not be torn down until it is known why it was built in the first place,” as quoted in McKinney v. Hanks, 911 F. Supp. 359 (N.D. Ind. 1995)).
In other words, Louisiana lawyers may have forgotten why affirmative defenses are pleaded first in the answer, but they remember that that’s how you do it. That’s how we’ve always done it, and it’s worked – why risk flipping things around? So the practice remains. “”The forms of action we have buried, but they still rule us from the grave.”