Savvy Tactics For Divorce Court #1 Request for Admissions of Fact and Genuineness of Documents – what to do?
The term “Discovery” is a legal description for a family of documents, motions and procedures. It is a term of art; not unlike “Sedan.” The term “Discovery” can mean a variety of things. Some more important than others, some more complicated than others, and some of greater gravity than others.
The most common and straightforward of motions or documents in the family of Discovery is a “subpoena” for a court date compelling a person to come and testify, or a person to produce document or other evidence, or both. See MD Rules 2-401 through 2-434.
“Interrogatories” and “Request for Production of Documents” are two other forms of Discovery that lawyers, and some non-lawyers, will be familiar with. In general the forms of Discovery, and the means to compel compliance with Discovery, are contained in the Maryland Circuit Court Rules 2-401 through 2-434.
If you review those MD Rules with an eye towards sanctioning or compelling another party for non-answer to Discovery, the general theme is a requirement to contact the party out of compliance, and then give them an opportunity to cure that non-compliance before you get the court to sanction them. THAT IS VERY GENERAL INFORMATION AND YOU MUST CONSULT THE RULES! THIS IS NO SUBSTITUTE! Yet, I think most divorce and custody lawyers would agree that “flash” first and “bang” second is the theme of sanctions through the Discovery process (with a few notable exceptions.) A BIG EXCEPTION IS
REQUEST FOR ADMISSION AND GENUINENESS OF DOCUMENTS MD Rule 2-424 (hereafter “Admissions”).
Admissions and Genuineness of Documents” MD Rule 2-424 is a particularly thorny, case busting, Discovery land mine that new lawyers or self-represented parties come up against and often never hear the “bang” until it is way too late! Unseasoned divorce lawyers, transactional lawyers, or a non represented person may enter the Discovery fray casually, relying upon the overarching theme identified above; whereby, the other side needs to first notify you of what you did wrong and next let you make it right before there are material consequences. That attitude can be a full-on DISASTER if Admissions are presented from the other side and not correctly handled!
Some Discovery failures such as to produce documents, or to answer questions range from the disastrous to the inconsequential. Often it depends upon the lenity of the judge deciding the punishment for non-compliance Yet, Admissions unanswered, or answered incorrectly, represent a hammer blow to the noncompliant party. They do not even permit the judge to give lenity, even if he/she were so inclined!
Failure to answer Admissions and Request for Genuineness of Documents on time and sufficiently fall under what some lawyers would call “shall” rules versus “may” rules. This is critical.
If a rule, a statute, a guiding case, or some other legal mandate indicates: The court “may” do this, “may” punish in this way, or “may” take some other action to impart the consequences for noncompliance those consequences are then in part based upon what the judge thinks is fair. In the case of a “shall” mandate, a “shall” rule, or a “shall” guiding case or statute: The judge is required to take prescribed action no matter how unfair or draconian that may seem to the uninitiated. End of story!!!
Admissions, unanswered or answered incorrectly, require the court to deem those matters admitted after the prescribed time to answer. No parole, go directly to jail, do not pass go, sorry about your luck, Kirk out!!
The only hope the uninitiated lawyer or party stands to get their asses out of hot water with failure to answer Admissions, is to hope that the Admission questions were crafted inartfully making it possible to “wiggle” your way out of them. This is by no means a good plan to rely upon!
I am reminded of the following colloquy: Man #1: “What is our plan?” Man #2: “Run!” Man #1: “Running is not a plan, you idiot! Running is what you do when a plan fails!”
Answering Admissions immediately is the plan! Hoping that you can wiggle out of unanswered or improperly answered Admissions, is what you do when the plan fails.
An excellent policy is to respond to Admissions within 48 to 72 hours . Don’t even come close to missing that deadline. Two decades ago, I knew a divorce and custody lawyer who was presented with the full-on disaster of having not timely answered Admissions. He wiggled out, but I am convinced at least 5 years we’re shaved off his life as a result.
Avoid this mistake at all and any cost!
Rookie Lawyer Maxims
“A good lawyer knows the law. A great lawyer knows the judge.” Anonymous. This was a phrase I heard as a Judicial Law Clerk. I resented the phrase in those days because my job was to counsel my Judge(s) on ethics and the law. I resented it because I misconstrued its meaning. I thought to myself “my Judge(s) don’t play favorites?” “I resent that implication!” No.
The phase refers to a seasoned lawyer’s ability to know the judge(s)’ mind and speak to it. Not a backdoor deal, or an old boy network. A history of knowledge and experience as to the judicial temperament.
“Fools (and zealots) are certain of themselves. Wise men are full of doubt.” Bertrand Russell. This equates to a “perry not thrust” approach. Confidence in the unrequited, unapologetic, singular persuasiveness of your legal argument belies your ability to see the questions a judge may pointedly focus upon. Recall; he/she is decades your elder, but obviously much dumber than you:) Even if you are right, a dumb judge’s decision is a decision you are stuck with.
“If your client thinks his/her spouse is chaste; he/she may be right. If your client thinks his/her spouse is not chaste; he/she is definitely right.” Alan Winik. People know and, at the same time, often people don’t want to know. They may have no photos, no recordings, no peg to hang the adultery hat upon. Yet, there it will hang. The client may also be angry if you tell them this. Learn to see it and unlearn to say it in a consultation.
“A guilty conscious needs much reassurance.” Me.
Tim Conlon Esquire at