Requests for Admissions in Personal Injury Cases

The May 2014 Issue of Plaintiff Magazine discusses the usefulness of requests for admissions (RFAs) in California personal injury cases.  When used properly, RFAs can allow a party to recover attorneys’ fees even when a party is not the prevailing party in the case.

RFAs can be used to recover cost-of-proof sanctions when the attorney diligently tracks billable time. To seek cost-of-proof sanctions, understand what responses are not permitted. The requests need to be timed so that when it comes to getting post-trial cost-of-proof sanctions, the party using RFAs has responses that are eligible for sanctions.

Each answer to an RFA “shall be as complete and straightforward as the information reasonably available to the responding party permits,” under Code Civ. Proc., §2033.220(a). Permissible RFA responses are:  1) objection; 2) admit; 3) deny; 4) inability to admit or deny, along with a declaration stating a “reasonable inquiry” concerning the matter in the request has been made and the information known or readily obtainable is insufficient to enable the party to admit the matter; or 5) a mix of the above 4 options.

The objective of RFAs is to 1) get admissions to pin down opponent before trial and eliminate costs to prove, and 2) recover litigation costs and attorneys’ fees after trial or summary judgment for having to prove matters contained in the RFAs the opponent failed to admit.

RFAs might include requests to admit discreet facts such as the car involved in an accident, and application of facts to law which mirror the jury instructions such as admit negligence.

A failure to respond allows a party to file a motion to have RFAs deemed admitted. A response that is not permitted may get an attorney into malpractice troubles.

For unequivocal denials, if a party “fails to admit” a matter that is subsequently proven to be true at trial, the requesting party may request proof of cost sanctions which includes attorneys’ fees. The exceptions to sanctions:  1) objection to the request was sustained or a response to it waived; 2) admission sought was of no substantial importance; 3) reasonable ground to believe the party would prevail in the matter; or 4) other good reason for the failure to admit.

For exception 2 above, to be of “substantial importance” a RFA should have a direct relationship to one of the key issues in the case. For exception 3 referred to above, the responding party must show that at the time of denial, the party held a reasonably good-faith belief it would prevail on the issue at trial. The denial must be based on admissible evidence which was actually admitted at trial. Evidence that is theoretically admissible may not be enough.

If done properly, RFAs may turn a loser into a winner in litigation.