Legal Question in Civil Litigation in Massachusetts

Re: AFFIRMATIVE DEFENSES-REQUIRE ANSWER?

First off, don't panic. Affirmative defenses are not a counter-claim and do not need to be answered. As for the request for a jury trial, this is pretty standard. The request for dismissal and fees is also a common addition to the affirmative defenses.

Relative to amending the complaint, Massachusetts Rules of Civil Procedure 15(a)sets out the rules for this. Basically, you can mmend any time prior to the receipt of an answer, at will. After receiving the answer, you may ammend either with agreement of the other side (or their attorney if represented) or by making a motion to the court. The courts rarely, if ever, deny these motions.

If the other party is represented, you may want to get counsel to represent you. Unless you are familiar with the rules of civil procedure, you may be mauevered into a difficult positon.

This opinion is based upon general information provided to this attorney and should not be concidered a formal leagl opinion based on sufficiant review of the particular case in question.

Re: AFFIRMATIVE DEFENSES-REQUIRE ANSWER?

From what you've said, no counterclaim was made. The title is not the proof, since an "ANSWER" can contain counterclaims, but nothing about counterclaims is mentioned in the prayer, either. If there are counterclaims, there would normally be a title to that effect making it pretty clear. Counterclaims have to be responded to within 20 days but I don't think there are any. That's really good for you.

Affirmative defenses are not counterclaims, just new points raised which are being marshalled to defeat your claim but which are more than simple denials of each of the allegations made in your claim.

The prayer is all very standard stuff; the legal fees are awarded only for pretty bad (frivilous) law suits or bad behavior of the parties. Is this in District Court or Superior Court? How much was your claim for? Which COUNTY did you bring it in?

You might have a chance of prosecuting your claim pro se in District Court, particularly if the claim is for under $5,000, but if there's a chance of you getting more than that, you may be deposed, for which you'd probably be better of with a lawyer. Actually, there are many more conditions where you ought to have a lawyer, too, so consider that. Most lawyers will tell you honestly if your case is too small to be able to afford the expense of one practically.

I'm in Newton; if I'm close to you and/or the court, write directly to me with more details, at [email protected] or send me a fax.