Making Request For Admissions

Making Request for Admissions (“RFAs”) Your Friend
By Gregory Rutchik
If the adage that “simple questions should yield simple answers” is true, then the
request for admission is without a doubt one of the best tools for getting there. I know,
“truth” isn’t what litigation is about but at least RFAs help us get a little closer to justice.
The RFA, in short, is a plainly worded question posed to the other side that, if
true, establishes an essential fact. Some lawyers get confused by the fact that the result of
the RFA is to yield either an admission or denial of the fact posed but focusing for a
moment on the purpose of the RFA it is to remove from dispute an essential question of
fact.
The Federal Rules of Civil Procedures Rule 36 guides the form and unlimited
number of requests for admissions in Federal Court. State civil procedure rules vary on
many things but most state civil procedure rules provide for unlimited requests for
admissions. The major caveat here is that under both Federal and state civil rules of
procedure – and here is where many lawyers get messed up – the number of
interrogatories ARE limited. The confusion occurs when counsel asks in special
interrogatories (above and beyond the form interrogatories allowed in most states) for the
responding party to set forth its factual basis for a denial. The result is almost always an
excess number of interrogatories than permitted – often 35 – and the responding party is
permitted to not answer the excess or in some cases not answer any of the additional
interrogatories that ask to set for the basis for any denial of a request for admission.
(See e.g. US District Court for Northern District Local Rule 36-2 which permits these
“additional interrogatories” “to the extent that a party is entitled to propound additional
interrogatories.”)
This is where the fun begins. Because RFA’s are unlimited. On must take a two
stepped approach.
Outline in simple English. First, clearly outline for yourself and your client the
factual elements that you must establish to make out your prima facie claim or defense.
The basis themes are almost always divided into liability and damages. If you are on the
defensive – not to suggest that there are any defense counsel out there but rather that
cross-claims or counter-claims often come a plaintiff’s way, outline the basis factual
elements that you will need to establish your basis defenses.
When in State Court, Get Special RFA’s out ASAP.

In California and maybe in your jurisdiction, the plaintiff can propound discovery
within 10 days of serving the complaint, I often propound special RFA’s, not just form
one’s to lock in some basics. You can always send out more but some of the basic issues
need to be firmed up early and they won’t see it coming.
Use RFA to establish your timeline or to flush out theirs.

One of the first things I try to do is to establish what happened when. The sooner
I can lock the opposing side into a timeline the better because certain facts are essential to
proving or disproving their version. Also, removing facts from dispute will greatly
simply your discovery and your lining things up for a dispositive motion.
Keep it simple. In the business tort environment or in any type of litigation

almost, a time line must be established. If your version of facts are true, you can
establish your case. Set out plainly worded questions to establish each and every factual
component of your time line. I stress the importance of plainly worded questions. Leave
out of your question any word that needs to be defined for now. One of the most
common objection to an RFA is that it is vague and ambiguous and if you use even a fifty
cent word, many discovery magistrates will sustain the objection and you will have to re-
propound, not to mention spend your client’s money opposing a motion to quash or
losing your motion to compel.
When I say simple, I mean dumb them down even more. You should be able to
read them out loud to a child of four and even they should understand them. The reason
for this is simple. A reasonable question is often simply asked. Remember the other
adage about explanations sounding reasonable are often true.
For example, if the question “did John write the software that became Petersoft’s
product?” is important, one might ask:
Admit that John went to school to learn to write software.

Admit that John learned to write in the software language C++.
Admit that John graduated from MIT with a PHD in Computer Sciences in
December 1996.
Admit that John accepted a job to work as a computer programmer for
Petersoft to start on January 1, 1997.
Admit that John’s first assignment after January 1, 1997 was to work on
project “Skype.”
Admit that John wrote software for project “Skype” from Janaury 1, 1997.
Admit that John had no knowledge of project Skype prior to January 1,
1997.
Admit that John did not write software for the project “Skype” prior to
January 1, 1997.
Stay away from “relates to” , “includes” and all of those connectivity/relational
type words. They are confusing and almost always can be avoided. RFA’s with ‘relates
to” are almost always met with the favorite “vague and ambiguous” objection so
anticipate this problem.
Ask one question at a time. Remember, the RFA is unlimited. The second
favorite objection is that the question is compound. Do not even think about breaking an
RFA into two or three if it even smells slightly of a compound concept. So if you need to
establish that John was an employee of your client Petersoft from a certain date you
might ask (aka propound) the following RFA’s:
Admit that John was an employee of Petersoft from January 1, 1997 to

December 30, 2005.
Admit that John worked for no other business other than Petersoft from
January 1 to December 30.
Admit that John was not EVER an independent contractor for Petersoft
Stay clear or double negatives but do not avoid getting a NO. I cannot count on
my fingers or toes the number of RFA’s I get where I need a calculator due to the double
or triple negatives. It is much easier to get the responding party to answer a DENY to a
straight question than to ask a double negative in the hopes of getting an ADMIT. Where
ever possible, strip your RFA’s of double negatives and go for a meaningful denial.
For example, don’t ask Admit that YOU never used the land without permission
when you can ask Admit that you used the land with permission. If you want a deny,
you’ll get one.
Simple definitions. The first difficulty is writing clearly. Nothing is more vital
than defining the words you use clearly to avoid sustainable vague and ambiguous
objections. Rather than over define however, define only the words that are essential to
your timeline.
Remember why you are doing discovery. If at first you do not succeed or
you’ve gone off in the wrong direction, do more RFA’s. Also, when a response comes in,
in additional to calendaring the respondent’s date to service responses, calendar the last
date to file a motion to compel. Once their responses come in, go thru them and get a
meet and confer letter out to describe why their responses are incomplete or their
objections improper.
With these reminders, your use of RFA’s should increase and improve. Good luck
out there.

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What are the benefits of requests for admissions according to the passage?

What are some tips for crafting effective requests for admissions mentioned in the passage?

Making Request for Admissions (“RFAs”) Your Friend

When in State Court, Get Special RFA’s out ASAP.

Use RFA to establish your timeline or to flush out theirs.

Keep it simple. In the business tort environment or in any type of litigation

Admit that John went to school to learn to write software.

Admit that John was an employee of Petersoft from January 1, 1997 to

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