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Requests for Admission: An Effective Tool for Trial and Beyond

Requests for Admission:

An Effective Tool for Trial and Beyond

 

 

            I have observed, over the years, that requests for admission are rarely used.  Many lawyers either don’t understand how to use them, or simply forget about them.  Do not underutilize one of the most potent weapons you have available to you.  The purpose of this article is to explain how requests for admission work, provide examples for using them effectively, and encourage lawyers to use them in their cases.

 

Requests for Admission:  Procedure

 

The procedure for using requests for admission is described in Wis. Stat. § 804.11(1)(a):

[A] party may serve upon any other party a written request for the admission, for purposes of the pending action only, of the truth of any matters within the scope of s. 804.01(2) set forth in the request that relate to statements or opinions of fact or of the application of law to fact, including the genuineness of any documents described in the request.

 

Accordingly, under the plain language of § 804.11(1)(a), a request for admission must “relate to statements or opinions of fact or of the application of law to fact.”  This very broad scope tells you that you can use requests for almost anything related to your case.

Another requirement is that each matter of which an admission is requested shall be “separately set forth.”  Again, this is not a difficult requirement to follow because you want to make your requests easily understandable, very clear, and – just like with cross examination questions – one clearly-stated idea per request.

The beauty of a request for admission (unlike an interrogatory) is that if your opponent does not answer, the matter is admitted:

The matter is admitted unless, within 30 days after service of the requests, or within such shorter or longer time as the court may allow, the party to whom the request is directed serves upon the party requesting the admission a written answer or objection addressed to the matter, signed by the party or attorney, but, unless the court shortens the time, a defendant shall not be required to serve answers or objections before the expiration of 45 days after service of the summons and complaint upon the defendant.   Wis. Stat. § 804.11(1)(b).

 

Unlike interrogatories, which often have limits on the number you can submit, requests for admission are usually not subject to limits:

Parties may obtain discovery by one of more of the following methods: depositions upon oral examination or written questions; written interrogatories; production of documents or things or permission to enter upon land or other property, for inspection and other purposes; physical and mental examinations; and requests for admission. Unless the court orders otherwise under sub. (3), the frequency of use of these methods is not limited.  Wis. Stat. § 804.01(1).

 

            Milwaukee County has Local Rule 342 which severely limits the number of interrogatories to 35.  There is no such limit on the number of requests for admission which you can issue.  When you promulgate your interrogatories (especially in Milwaukee County) you should consider whether you can use requests for admission instead of interrogatories on some topics. 

 

Requests for Admission Can Be Very Broad

 

Requests for admission can seek an admission which would be dispositive of the entire case and need not be limited to facts, but may seek, when appropriate, opinions of facts or of the application of law to fact.  Bank of Two Rivers v. Zimmer 112 Wis.2d 624, 630, 334 N.W.2d 230 (1983); see also Schmid v. Olsen, 111 Wis. 2d 228, 236, 330 N.W.2d 547 (1983).
            A request for admission need not be limited to ultimate facts, and it is irrelevant that a plaintiff bears the burden of proof on the issues that he or she requests the defendant to admit.  Schmid, 111 Wis. 2d at 236.
            A request for admission may encompass any matters within the scope of discovery and, hence, may encompass any matter, not privileged, which is relevant to the subject matter involved in the pending action, whether it relates to the claim or defense of the party seeking discovery or to the claim or defense of any other party.  Id.

            However, while certain components of a claim, such as past or future medical bills or lost wages are proper subjects for a request for admission, the claim’s total value, including disability and pain and suffering, is not.  Kettner v. Milwaukee Mut. Ins. Co., 146 Wis. 2d 636, 641, 431 N.W.2d 737 (Ct. App. 1988) (review denied).

Summary judgment can be based on a party’s failure to respond to requests for admission.  Bank of Two Rivers, 112 Wis. 2d at 630.  For example, in Bank of Two Rivers v. Zimmer, the defendants’ failure to respond to requests for admission in quiet title action and failure to oppose affidavits on motion for summary judgment resulted, in effect, in abandonment of any claim in the land, so that summary judgment was appropriate.  Id. at 632-33.

 

Requests for Admission Are a Powerful Tool

 

Did you know that you can do almost anything with your requests for admission?  They may only be directed to parties to the litigation, not witnesses, but within that limitation, you can use them for a wide range of aspects of the litigation.  They can be served at any time, even with the summons and complaint. 

Here are some helpful facts to keep in mind about the power of requests and how you can use them:

1.                   You can use them to confirm facts you already know

 

a.      In a legal malpractice case:  Admit you had an attorney-client relationship with the defendant.

 

b.      In an auto case:  Admit you were insured by Sentry Insurance at the time of the accident.  Admit you ran a red light at Good Hope and 76th Street.  Admit your car struck John Smith at or around 8:00 p.m. on July 3, 2005.

 

c.       In a nursing home case:  Admit Edna was found on the floor of her bathroom on November 11, 2007.  Admit she was covered with blood.  Admit her jaw was broken.

 

2.                  You can use them to find out facts you do not know.

 

a.      They can be an excellent follow-up to interrogatories or depositions. 

 

b.      You can “clean up” your opponent’s bad deposition answers and turn them into requests for admissions. 

 

c.       Make your requests pointed and clear.  Reference the deposition page and lines. 

 

d.      If you get the answer you want – and admission – great.  If not, the party has to answer interrogatories that explain every denial.

 

3.                  There is no limit on the number of requests for admissions (this is very helpful in counties – such as Milwaukee – which severely limit interrogatories).

 

4.                  They must be answered promptly.

 

5.                  If not denied, they are admitted.

 

6.                  Lack of information is no justification for refusing to answer unless the responding party first makes a reasonable inquiry.

 

7.                  That the requesting party can get the information just as easily is not a justification for refusing to admit.  (This makes sense when you consider that they are for purposes of requiring admission, not discovery).

 

8.                 If an answer waffles, the court may order that the question be answered or may take it as admitted.  Generally, judges see requests as a valuable tool and enforce them.  You can argue that they will shorten up the trial by establishing facts ahead of time.

 

9.                  An admission to a request for admission has more force than an ordinary admission.  An ordinary admission is simply evidence that can be contradicted.  An admission under Wis. Stat. § 804.11 is binding.  Unless the court permits a party to withdraw a § 804.11 admission, it conclusively establishes the matters it admits.  Do not underestimate the importance of the distinction.  This is powerful.

 

Once a matter has been admitted, a party may ask the court to relieve him or her from an admission.  The court’s authority to permit withdrawal is contained in Wis. Stat. § 804.11(2), which provides:

The court may permit withdrawal or amendment when the presentation of the merits of the action will be subserved thereby and the party who obtained the admission fails to satisfy the court that withdrawal or amendment will prejudice the party in maintaining the action or defense on the merits.

 

The decision to allow withdrawal or amendment is a discretionary decision to be reviewed under the “erroneous exercise of discretion standard,” which means that the trial court’s decision will be upheld “if the court examined the relevant facts, applied a proper standard of law and, demonstrating a rational process, reached a conclusion that a reasonable judge could reach.”  Estate of Hegarty v. Beauchaine, 2006 WI App 248, ¶ 37, 297 Wis. 2d 70, 727 N.W.2d 857.  

 

Use Requests for Admission to Establish Facts for Trial

 

1.                   You can establish ownership and legal relationships.

 

2.                  You can eliminate disputes about the admissibility of technical or scientific literature.

 

3.                  You can establish a foundation for admissibility of potentially-disputed evidence.

 

4.                  You can nail down principles related to the standard of care and causation.

 

5.                  You can provide the foundation for evidence of subsequent remedial measures or modifications by seeking admission as to control, knowledge or feasibility.

 

6.                  You can lay groundwork for evidentiary issues by establishing key facts you will need to argue the point (e.g., habit, feasibility, knowledge, subsequent remedial measure…).

 

Remember that you can – and want to – read key admissions to the jury during trial.  You will want the judge to instruct the jury that the admission conclusively establishes the fact as true without need of any further proof.  The power of this admission is absolute.  As you think about reading the admissions to the jury, you will find that you write them in a clearer, more direct way. 

 

Use Requests to Make Deposition Testimony More Potent and Convincing

 

Use requests for admission to fully bind deposition testimony, particularly of an opposing party’s employees, consultants, designers, etc.  You can use requests to distill significant facts and concepts from a deposition that are not so “clean.”  Maybe you have the right answer, but it is pages from the question due to objections and other “clutter.”  Think in terms of putting it on a transparency or PowerPoint slide for the jury to see.

When issuing a request for admission based on a deposition question and answer, I like to attach the deposition pages to the request and reference them in the request.  Or, put the page and line of the witness’s transcript in the request for admission.  You want the same answer, so make it easy for the lawyer to see that he must, indeed, admit the request.

 

Use Requests for Admission for Discovery

 

You can also use requests to follow up interrogatory answers.  Sometimes there are gaps in the responses and you can use requests to fill in those gaps.  If the answer to an interrogatory “waffles,” issue some requests for admission designed to clarify the issue.  

 

 Use Requests for Admission to Establish Your Medical Bills

 

            Here are sample requests for admission which are helpful and should be used in every case that has disputed medical bills.  Issue them so they are answered before the treaters are deposed, so you know whether the bills will be an issue or not.

 

            REQUEST NO.1:  Admit that the documents attached hereto as Exhibit 1 are authentic duplicate copies of the charges incurred by plaintiff for treatment rendered to her by Medical Associates (Dr. Smith) and need not be further identified by the custodian of the records.

 

            REQUEST NO. 2:  Admit that the charges set forth in Exhibit 1 are reasonable in amount.

 

            REQUEST NO. 3:   Admit that the charges set forth in Exhibit 1 were necessarily incurred for treatment of injuries which were a result of the accident which occurred on 5/26/2003.

 

            REQUEST NO. 4:  Admit that the charges set forth in Exhibit 1 were caused by the accident which occurred on 5/26/2003.

 

            REQUEST NO. 5:  Admit that the negligence of Dean L. Jones on 5/26/2003 was a cause of the charges on Exhibit 1.

 

 

 

Using Requests for Admission at Trial

 

Use requests for admission to narrow the issues and to clear away clutter so your trial runs more smoothly and so you do not forget simple – but important – facts that you must establish.

The purpose of the admissions process is to expedite trial by establishing certain material facts as true thus narrowing the range of issues for trial.  Mucek v. Nationwide Communications, Inc., 2002 WI App 60, ¶ 31, 252 Wis. 2d 426, 643 N.W.2d 98. 

For example, in an auto case, this can include establishing the date, the location, the insurance, who was driving which vehicle, who did what, who came to the scene, who spoke or did not speak (and to whom) and countless other details.  On a wage loss claim, you can establish that your client worked for ABC Company, what his position was, what his hourly wage was, the hours missed as a result of the accident, and the total amount of wage loss.  On a death claim, you can establish the amount of funeral expenses. 

With carefully-planned requests for admission, you can eliminate entire issues from trial.  You can avoid spending time preparing for issues that can be exposed with requests for admission as red herrings.

 

 

 

Enforcing Requests for Admission

 

Vigorous enforcement of Wis. Stat. § 804.11 is necessary to the effectiveness of the requests for admission.  When answers are equivocal, are not made in compliance with the rule, or consist of unwarranted objections, § 804.11 provides the remedy.

Wis. Stat. § 804.11(1)(c) provides that the party who requested the admission may move the court to determine the sufficiency of the answers or objections.  The court can order that an answer be served, and if the court determines that an answer does not comply with the statute, it can order either that the matter is admitted or that an amended answer be served. 

Expenses under Wis. Stat. § 804.12(1)(c) applies to the award of expenses incurred in relation to the motion.

Because of the important functions of requests for admission, this statute should be enforced conscientiously and courts have not been reluctant to examine the sufficiency of answers and deem requests admitted where answers have not been made in good faith.

Sanctions can also be awarded for discovery abuse and for costs (discussed below).  See Hur v. Holler, 206 Wis. 2d 335, 341, 557 N.W.2d 429 (Ct. App. 1996).

 

Using Requests for Admission After Trial

 

If you prevail on issues denied by the other side, Wis. Stat. § 804.12(3) allows you to move the court for an assessment against the other side for your costs in proving the allegations that they denied.  That section provides:

If a party fails to admit the genuineness of any document or the truth of any matter as requested [in a request for admission], and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, 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 the making of that proof, including reasonable attorney's fees. The court shall make the order unless it finds that (a) the request was held objectionable pursuant to sub. (1), or (b) the admission sought was of no substantial importance, or (c) the party failing to admit had reasonable ground to believe that he or she might prevail on the matter, or (d) there was other good reason for the failure to admit.  Wis. Stat. § 804.12(3) (emphasis added).

 

If you prove at trial matters the other side denied in your requests for admission, and you incur expenses in making such proof, then you can recover those expenses.   I have often asked lawyers if they have ever brought a motion for costs and I am surprised to hear that it is rare.   Do not be afraid to use this powerful tool.  

An often-seen example on recovering costs involves special damages for medical bills.  If you set forth requests for admission (as set forth in the example above), and they are denied, and you prove them up at trial, you have the right to recover the cost for the time charged you by an expert for that testimony, and for reasonable attorney’s fees.  This may seem trivial, but when you consider the preparation time putting together the list of specials and their accompanying bills, the time going over them with the expert (your time and the doctor’s time), the deposition time covering each bill (the transcript cost and the doctor’s time and your time), it adds up.  More importantly, if you seek costs a few times and prevail, it will encourage better responses to your requests for admission in the future.

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