By Nathan A. Hacker
Requests for admissions in discovery are frequently not used in family law, but at times can be a valuable tool for a divorce attorney to limit the scope of a trial.
For example, requests for admissions regularly take on the form of:
“Do you admit or deny that you were convicted of check deception under case number 49D02-0003-FD-001234?”
Answering this question could be as simple as circling admit or deny based on whether or not it is true. Keep in mind, though, that when answering these questions you are under oath.
For the purposes of this article, we will assume that the above statement is in fact correct.
First, let’s look at the result if you admit. An admission to this request will result in you being locked into the position that you have a prior conviction for a crime of dishonesty. Depending on your jurisdiction this can be used to impeach your testimony.
If you are in a state which allows trial by jury in family law matters, you would want to take this into consideration as many jurors would be turned off by someone who has been previously found untrustworthy.
An admission at this point, though, can be compensated for strategically by your attorney. There are ways to minimize the impact of this type of evidence at trial. This can be as simple as making sure you are the first to file so that your attorney is calling you as a witness first. Your divorce attorney can then diffuse the impact of the evidence on the judge or jury by burying it in the center of your testimony.
Your attorney can also couch the question in terms that are favorable to you. Your divorce lawyer can now protect you to a certain degree from an imposing cross-examination by asking all of the other party’s questions, and then objecting to the same with “asked and answered.”
Now let’s look at the denial of the same statement. You will be called to testify in your divorce whether by your attorney or by hers.
Should you deny the statement is true, you are going to face a line of questioning and a series of documents that will tell the entire story of the crime that you have committed. Then you will lose all credibility with the judge who is about to decide who is telling the truth. There is little rehabilitation that your attorney can do for you at this point.
Keep in mind that with discovery requests and requests for admission in particular, the other side already knows the truth to a certain degree.
As a side note, look at the specific nature of the case number (this one would be for a case out of Indianapolis from March 2003). Most states have some sort of details that will point out where the case is filed and what kind of case it is. If the other party has this level of detailed information then you can rest assured they have the documents to prove it at trial.
The Importance Of Responding
One of the particular uses for this form of discovery is that many states have a rule that Requests for Admission that are not answered are deemed admitted.
Imagine the following scenario: Your wife files for divorce and sends you requests for admissions. You fail to provide those requests to your attorney, and they are not answered in a timely fashion. You walk into court with your attorney and lo and behold, the opposing party stands up to open their case and moves to submit the unanswered discovery request as admissions by the other side.
Now your attorney is stuck refuting these items which the court may or may not agree should be set aside. These admissions could be that you have dissipated marital assets on drugs and gambling. Or, that you have no relationship with your child. Not responding to these can leave you in a deep hole at trial.
I know, this all sounds like doom and gloom, but keep in mind, discovery is a two-way street. These requests should propound on the other side as well if there is a strategic need to do so. Also, most courts are not going award great weight to unanswered requests for admission, but it should serve as ample warning to you that a court may look at unanswered requests for admission as admissions.
Case Study
We can make this same example a little less straight-forward, which will also make it a l little more realistic. Assume the same question above:
“Do you admit or deny that you were convicted of check deception under case number 49D02-0003-FD-001234?”
Now let’s say the facts are slightly different. You were arrested for and charged with check deception under the above case number, however, you accepted a plea offer to conversion, a misdemeanor, and paid a fine plus reimbursement to the victim.
So how do you answer? Clearly, you are not going to admit. However, there are different possible answers that you need to consider with your attorney.
First is the direct denial of everything. Because this question is asking about two facts – the conviction for check deception and the case number – both need to be true for a proper admission. If the question were asked, “Admit or Deny: You were convicted under case number: 49D02-0003-FD-001234,” then you would have to admit.
Therefore, depending on your situation a complete denial may your strategic best answer.
You, however, may also have the option to admit in part and deny in part. Your response could be that you, “Deny with respect to the conviction, but admit the arrest.” Or, “Deny with respect to the conviction, but admit to a conviction under that same case number for conversion.”
Again, you will want to look at what is in your best interest with regards to the response and how it is formed. Some jurisdictions may require a split response in this situation so discussing the response with your attorney is going to be of the utmost importance.
Final Example
Finally, let’s look now at a different example more complex than the one above. For the purposes of this question, you played football at Purdue University in 1995, for your fraternity Delta Tau Chi. You were a “star” of sorts in that you were able to score the winning touchdown of the Fraternity Flag Football League of the intramural sports and recreations program on a running play. Your brothers at Delta Tau Chi still talk about it some 15 years later.
“Admit or Deny: You were the star running back at Purdue University in 1995.”
You are stuck because this is a true statement. You were a star running back at Purdue University in 1995.
How do you respond? First, your attorney should object to this question because “star” is a vague term. Additionally, discovery should be designed to lead to some sort of discoverable or admissible evidence. What is the purpose of eliciting whether or not you were a running back for your fraternity 15 years ago? I would argue none.
Not withstanding any of these objections you and your divorce lawyer should look at each of these together in order to determine whether or not an admission is appropriate.
When answering these types of questions it is important to look at what is actually being asked. While I am sure that an attorney wrote them and sent them to you, it is important to remember that lawyers may not be as clear to their intent as they should.
Answering these with the help of your attorney is an absolute must. Admissions may appear like simple true OR false questions, but many times these questions can be both true AND false.
Read all the articles in our “Discourse On Discovery” series:
Request for Production of Documents
5 Steps To Prepare For A Deposition
To set up an appointment with a Cordell & Cordell mens divorce attorney, including Indianapolis Divorce Lawyer Nathan A. Hacker, please contact Cordell & Cordell.
