The Illinois Trial Practice Weblog

Interrogatory Answers "Subject To" Objections: Send a Request for Admission

It's common that a party will answer your interrogatories only after stating numerous objections. If your practice is like mine, you might get a page or two of "general objections," then a number of other specific objections in answer to the specific interrogatory, and then a statement, "Subject to the objection, [party] states as follows. . . "

Absent a specific court rule in your jurisdiction, how do all the objections affect your use of the "subject to" response at trial? Can you read the interrogatory answer to the jury, for example, even though you never had the other side's objections specifically overruled? The party answering the interrogatory didn't state all those objections for nothing. It did so to make it harder for you to use the information.

Here's a simple trick that often will resolve the quandary in a way that's much easier than calling up the objections. Simply take the interrogatory response you think you might want to use at trial (absent the objections, of course) and turn it into a request for admission. Then send it off to the other side. Since they authored the statement themselves in an interrogatory response, albeit subject to their many objections, it's unlikely they'll deny the statement when put into a request for admission.

With an admission in hand, you can use the information at trial without worrying about the effect of the objections. The admission can even be projected on a screen, which you probably wouldn't want to do with an objection-ridden response to interrogatories.

Congratulations: you've just done an end run around your opponent's many harassing objections!

Requests to Admit in Illinois: Seeking Costs for Denials

In Illinois, the procedures for Requests for Admissions are found in Illinois Rule 216. An important companion is Rule 219(b), which gives you options if your opponent arbitrarily denies your requests, thereby forcing you to spend money to prove facts at trial. Rule 219(b) reads as follows--

Expenses on Refusal to Admit. If a party, after being served with a request to admit the genuineness of any documents or the truth of any matters of fact, serves a sworn denial thereof, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter of fact, the requesting party may apply to the court for an order requiring the other party to pay the requesting party the reasonable expenses incurred in making the proof, including reasonable attorney's fees. Unless the court finds that there were good reasons for the denial or that the admissions sought were of no substantial importance, the order shall be made.

If you seek costs based on Rule 219(b), your opponent has some options too. As the rule states, he can argue that there was a good reason for the denial or that the admissions sought were of "no substantial importance."

What's a good reason for denial? Though you won't find too much case law on the topic, a good reason exists when admitting the requests would require your opponent to concede his entire case. Here's how one court made this point--

[Rule 219(b)] requires that the matters asserted be proved and that the opposing party lacked good reasons to deny the request. The policy behind the rule is to promote settlement and simplify litigation. Here, plaintiff filed a "Request to Admit," which requested that defendants admit, among other things, that the fire began in the larger building and spread to the smaller one and that plaintiff sustained $ 216,761 in damages. Plaintiff, in essence, wanted defendants to concede plaintiff's entire case. Clearly, this is not the intent of the rule.

In Exchange National Bank v. DeGraff (1982), 110 Ill. App. 3d 145, 441 N.E.2d 1197, we held that defendant bank had a good reason to refuse to admit the allegations sought by plaintiff because the bank's admission of the plaintiff's requests would be conceding away its whole case. We went on to state that "[i]f the rule is extended to all controverted matters which become 'proven facts' only through a general verdict or judgment, the prevailing party to an action would presumably be allowed to recover fees and expenses routinely. We do not believe this is the intent of Supreme Court Rule 219(b)." Similarly, in this case, defendants were not required to admit liability.

Chem-Pac, Inc. v. Simborg, 145 Ill. App. 3d 520, 526 (Ill. Ct. App. 1986) (some citations omitted).

Keep in mind that in order to obtain costs under Rule 219(b), you don't have to win the underlying case, but merely prove a fact that was previously denied. See, e.g., "The Harsh Reality of Supreme Court Rule 216," by Richard Kessler (pdf). Finally, if you decide to seek costs for your opponent's denials, you'll have to ask the court to make a specific finding as to why there were no good reasons for the denials and why the requests were of substantial importance. An order that merely recites the general language of the rule may not withstand appeal. See In re Estate of Smith, 201 Ill. App. 3d 1105 (Ill. Ct. App. 1990).

Responding to Request for Admissions Under the Federal Rules

A correspondent has asked me to post some sample responses to requests for admissions under the federal rules. Fed.R.Civ.P. 36 gives the following guidelines for responding:

If objection is made, the reasons therefore shall be stated. The answer shall specifically deny the matter or set forth in detail the reasons why the answering party cannot truthfully admit or deny the matter. A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify an answer or deny only a part of the matter of which an admission is requested, the party shall specify so much of it as is true and qualify or deny the remainder. An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless the party states that the party has made reasonable inquiry and that the information known or readily obtainable by the party is insufficient to enable the party to admit or deny.

Here are some responses from an actual case with the names of the parties and other identifying features changed--

Authenticating Exhibits Using Requests for Admissions: Two Methods

If you are using requests for admissions to authenticate trial exhibits before trial, you'll have to attach the exhibits to your requests so that your opposing counsel can evaluate them one by one.

One method is to attach paper printouts of the documents, identified with exhibit stickers. Your request for admissions itself might look like this:

1. Admit that each of the following documents attached as an exhibit to these requests for admissions is a true and accurate reproduction of a genuine original.

(a) Exhibit 1: Letter from Joe Blutz to Margaret Hatz dated 1/1/01;

(b) Exhibit 2: Letter from Margarate Hatz to Jane Hertz dated 2/1/01.

In a large document-intensive case, you might have hundreds or thousands of multi-page documents you want to authenticate. Rather than print and attach each document, you can provide the documents on a CD-ROM. Here is an example of a request I used in a Missouri case, where the court rules also describe the evidentiary foundation necessary for business records:

1. Attached hereto as Exhibit 1 is a list of documents identified by Bates number, date, author, and subject matter. An image of each document in .tif format has been provided on the CD-ROM attached as Exhibit 2. Regarding each such document, an electronic version of which resides on Exhibit 2, please admit:

(a) The electronic version of each document identified by Bates Number in Exhibit 1 is a true, correct, and genuine copy;

(b) The genuineness and authenticity of the electronic version;

(c) The electronic version (or a printed copy thereof) is admissible as a business record pursuant to [Missouri Rule].

This method of combining electronic documents with requests to admit has worked well for me, but other suggestions are welcome in the comments.

Related Post: Proving Up Medical Bills #2

Lawyers Who Share Their Expertise for Free

The lawyers at Miller & Zois, LLC don't have a weblog, but they're participating in the open-source lawyering movement anyway by sharing information on the Attorney Help Center page of their website. Here's their thinking--

The purpose of this Maryland Personal Injury Attorney Help Center is to serve as a resource for Maryland personal injury attorneys and other lawyers around the country representing injury victims. As we looked at personal injury sites on the Internet, we noticed that while many sites are good at talking about themselves and the types of personal injury cases they handle, few provide real information of assistance to injured victims or other personal injury lawyers.

At the Attorney Help Center, you'll find sample pleadings, motions, discovery, jury instructions, and more. An example of what's offered is "Plaintiff's First Request for Admissions," a comprehensive set of requests for admissions in a vehicle injury case that would work as a model in most states.

Requests for Admissions: Use Certified Mail

When filing Requests for Admissions, send them to opposing counsel by certified mail.  It's the only way to deal with the first argument you'll hear when you try to get the requests deemed admitted for a failure to respond: "But I never received your Requests for Admissions!"

Even this may not be a good excuse, however.  In Glasco v. Marony, the Fifth District discussed what constitutes good cause for allowing an attorney to respond to Requests for Admissions out of time:

We find that the circuit court did not abuse its discretion by denying the plaintiff's request for an extension of time to respond to the defendants' request for admissions. Mistake, inadvertence, or simple attorney neglect cannot constitute the sole basis for a good cause determination. See Greene v. City of Chicago, 48 Ill. App. 3d 502, 513 (1976), aff'd, 73 Ill. 2d 100, 382 N.E.2d 1205 (1978); Floyd v. United States, 900 F.2d 1045, 1048 (7th Cir. 1990). We affirm the circuit court's judgment on this issue.

In Glasco, the court rejected the responding attorney's excuse that "he had been out of town and without a secretary at the time of service," and so should be excused for filing his responses late.

Proving Up Medical Bills #2

Today we'll take a look at the use of Requests for Admissions to establish the foundational elements needed to prove past medical expenses.  (These foundational elements were discussed in the last post.)  My form Request for Admissions dealing with medical bills looks like this:

1.  Concerning Exhibit 1, which is attached, please admit:

(a)  The genuineness and authenticity of the exhibit;
(b)  The exhibit is a copy of a medical bill for services rendered to plaintiff, on the dates indicated on the exhibit, by [name of provider];
(c)  The total charges for the services listed on the bill are [amount];
(d)  The services reflected in the bill were necessary for the diagnosis or treatment of Plaintiff’s [condition at issue in the lawsuit];
(e)  The services reflected in the bill were necessary for the diagnosis and treatment of injuries sustained by Plaintiff in the [type of accident] that is the subject of this case;
(f)  The amount of the bill is reasonable; and
(g)  The exhibit is a true, correct and complete copy of a genuine original.

In many cases, the defendant will admit all but (e), which will require expert testimony about causation.  Even if the defendant fails to admit some of the other sub-parts, you will know when you receive the defendant's answers exactly what issues will be disputed at trial.

Requests to Admit -- Dot Your I's

Another reminder to take responses to Requests to Admit very seriously is Moy v. Ng, 793 N.E.2d 919 (1st Dist. 2003) (the decision without West's numbering can be found here).  In Moy, the First District ruled that the trial court erred in accepting untimely and improper answers to defendant's requests for admissions.  Among other problems, the answers were signed and verified by the lawyer, not the party.  (Note: seems pretty basic, but I frequently receive unsworn answers, especially when the opposing lawyer is from out of state).