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For example: arbitration and award is an affirmative defense asserting that the action's subject matter has previously been settled in Arbitration . An affirmative defense must be timely pleaded by the defendant in order for the court to consider it, or else it is considered waived by the defendant's failure to assert it. What constitutes timely assertion is often itself the subject of contentious litigation. Because affirmative defenses require the assertion of facts beyond those claimed by the plaintiff, generally the party pleading an affirmative defense has the Burden Of Proof on that defense. The burden of proof is typically lower than Beyond A Reasonable Doubt . It can either be Clear And Convincing or Preponderance Of The Evidence . Rule 8 of the Federal Rules of Civil Procedure governs the assertion of affirmative defenses in cases filed in the United States District Court s. EXAMPLES
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