I often see responsive pleadings that hurt the other side’s case. Frequently the response will include extraneous information. This information is like free discovery–learning about the other side’s case strategy without using precious supplemental interrogatories or requests for admissions.
Other times parties will deny things they should have admitted because they seem unaware they can admit part of an allegation without admitting the whole allegation. In fact, unless a party intends to deny the full allegation, such partial admissions/partial denials are required by the rules of civil procedure:
When a pleader intends in good faith to deny only a part or a qualification of an averment, he shall specify so much of it as is true and material and shall deny only the remainder.
Basically any allegation in a pleading can accurately be responded to by one of the seven methods below.
1) Admit the allegation: “Paragraph [seven] is admitted.”
Use this response when one isn’t challenging any element of the allegation and one’s client knows the allegation to be accurate.
2) Admit the allegation upon information and belief: “Upon information and belief, paragraph [seven] is admitted.”
Use this response when the client doesn’t know with certainty that something is true but that the matter is likely true and either isn’t consequential or in dispute. A good time to use this pleading response is when the other party pleads something like, “Plaintiff has incurred attorney’s fees and costs in prosecuting this action.” One’s client can’t be certain that this has happened but it is very likely to have and unlikely to be in dispute.
3) Deny the allegation due to lack of personal knowledge: “[Plaintiff/Defendant] lacks sufficient knowledge to admit or deny the allegations of paragraph [seven] and therefore denies same.”
This response is the mirror of response 2 above. Use it when one isn’t certain the allegation is inaccurate but one doesn’t know and one intends to contest the allegation at trial.
One can also use this response when the allegation is so confusing that one cannot understand what is actually being alleged. When confronted with a confusing allegation, another remedy is to file a motion pursuant to Rule 12(e), SCRCP, to make the pleading more definite and certain:
If a pleading to which a responsive pleading is permitted is so vague or ambiguous that a party cannot reasonably be required to frame a responsive pleading, he may move for a more definite statement before interposing his responsive pleading.
However if there are just a few allegations in the pleading that are vague or confusing it’s often easier to deny these allegations due to lack of personal knowledge.
4) Admit the allegation but correct an inconsequential fact
Use this response if a paragraph has a small inconsequential inaccuracy, such as a misspelled name. For example, in response to an allegation, “The parties are parents of one minor child, Samantha Brook Jones,” one might respond, “Paragraph [seven] is admitted, except that the minor child’s middle name is Brooke, not Brook.”
One could accurately plead by denying part of the allegation: “Paragraph [seven] is admitted in part and denied in part. It is admitted that the parties are parents of one minor child. The remaining allegations of paragraph [seven] are denied.” However such a response leaves the opposing party and the court confused as to whether one’s client is alleging there is some other child at issue. Correcting the inconsequential fact while admitting the allegation avoids this confusion.
5) Deny the allegation: “Paragraph [seven] is denied.”
Use this response when one believes the allegation is inaccurate.
6) Admit the allegation in part and deny it in part: “Paragraph [seven] is admitted in part and denied in part. It is admitted that….. The remaining allegations of paragraph [seven] are denied.”
Failing to use this type of response when an allegation is partially accurate leads to credibility problems at trial. One can be impeached for denying that which is obviously true, as Rule 8(b), SCRCP is explicit that when an allegation is partially true it is inappropriate to deny the whole matter. Attorneys who deny an allegation because it is only partially true are being too cute at their client’s expense.
If one is denying just one or two elements of the paragraph, it can be easier to frame the response as, “Paragraph [seven] is admitted in part and denied in part. It is denied that….. The remaining allegations of paragraph [seven] are admitted.”
7) Indicate no response is required to the allegation: “No response is required to paragraph [seven].”
Often when attorneys plead more than one cause of action, they will begin each new cause of action with variation of, “[Plaintiff/Defendant repeats and realleges the above paragraphs as though set forth herein below.” There’s no argument the other party is doing that but there’s really no need for a response. However failing to respond to an allegation may lead to that allegation being treated an admission. Rule 8(d), SCRCP states:
Averments in a pleading to which a responsive pleading is required, other than those as to the amount of damage, are admitted when not denied in the responsive pleading. Averments in a pleading to which no responsive pleading is required or permitted shall be taken as denied or avoided.
If the trial judge believes such averments require a response, failing to respond to such allegations could be treated as an admission. In that circumstance, is the admission that the other party is repeating its allegations or that the repeated allegations are true? It’s safest to simply indicate one’s belief that no responsive pleading is required.
Conclusion
Overly verbose or inaccurate responsive pleadings can damage one’s case. After twenty years of practice I’ve yet to see a pleading allegation that cannot be responded to accurately by one of the seven methods noted above.
Really important information, Greg. It was a turning point in my career when I started thinking about cases by first putting the pleadings in front of me and seeing what was admittied and denied.
That underscored the wisdom of using the sort of precision in pleading that you outline above.
Thank you for your consistently excellent insights.
George