A common complaint among family law attorneys is discovery or pleading responses that are evasive or flat-out inaccurate. While such responses are frustrating they can actually be of greater use to the opposing party than accurate, non-evasive responses.
Attorneys should be cautioned against knowingly providing responses in answers to complaints or replies to counterclaims that are undeniably inaccurate. Rule 11 of the South Carolina Rules of Civil Procedure authorizes sanctions against attorneys and parties who do this:
The signature of an attorney or party constitutes a certificate by him that he has read the pleading, motion or other paper; that to the best of his knowledge, information and belief there is good ground to support it; and that it is not interposed for delay….If a pleading, motion, or other paper is signed in violation of this Rule, the court, upon motion or upon its own initiative, may impose upon the person who signed it, a represented party, or both, an appropriate sanction, which may include an order to pay to the other party or parties the amount of the reasonable expenses incurred because of the filing of the pleading, motion or other paper, including a reasonable attorney’s fee.
Despite this rule, attorneys continue to see pleadings that deny the obvious, which means the other attorney, or litigant, or both, are failing to comply with Rule 11. Somewhat more typical are pleading responses that deny a whole paragraph because one portion of the paragraph is allegedly not true. Rule 8(b) of the South Carolina Rules of Civil Procedure provides guidance on how to properly respond to a partially-true, partially-false pleading allegation:
Denials shall fairly meet the substance of the averments denied. 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.
A general denial of an allegation that is partially-true violates this provision. As Rule 8(b), SCRCP later notes, such improper pleading is a violation of the provision of Rule 11 requiring good-faith accuracy in pleadings:
Unless the pleader intends in good faith to controvert all the averments of the preceding pleading, he may make his denials as specific denials of designated averments or paragraphs, or he may generally deny all the averments except such designated averments or paragraphs as he expressly admits; but, when he does so intend to controvert all its averments, including averments of the grounds upon which the court’s jurisdiction depends, he may do so by general denial subject to the obligations set forth in Rule 11.
Similar problems arise in discovery responses that, through the use of evasion, fail to admit what is patently obvious. As Rule 37(a)(3) of the South Carolina Rules of Civil Procedure (the provision regarding “Failure to Make or Cooperate in Discovery”) states, “[f]or purposes of this subdivision an evasive or incomplete answer is to be treated as a failure to answer.” The irony is that attorneys and litigants who provide evasive pleading and discovery responses are too clever by half. And the remedies for such evasiveness or dishonesty are simple.
With inaccurate or evasive pleadings, the party providing such pleadings can be cross-examined and have his or her credibility attacked on the evasions and inaccuracies. The typical weasely testimony concerning a denial of a partially-true allegation will be that the allegation isn’t completely true. Such testimony can be countered by having the litigant review the provision of Rule 8(b), SCRCP noted above and then having that litigant confirm that the allegation was partially true. Finally the litigant can be required to confirm that his or her response failed to comply with this rule. A frequent response to being confronted with a completely inaccurate denial is that it was made “on the advice of counsel.” This response not only confirms that party as a liar but arguably acts as a waiver of attorney-client privilege. See, Floyd v. Floyd, 365 S.C. 56, 615 S.E.2d 465, 483 (Ct.App. 2005) (“Any voluntary disclosure by a client to a third party waives the attorney-client privilege not only as to the specific communication disclosed, but also to all communications between the same attorney and the same client on the same subject.”).
The remedy for inaccurate discovery responses is the same cross-examination techniques noted above for inaccurate pleadings. A response to a request to admit (See Rule 36, SCRCP) or a pleading that seeks to have the opposing party admit to uncomfortable facts is even better when that response is evasive. Note that under Rule 36, SCRCP, as under Rule 8, SCRCP, there are limitations on a party’s right to deny partially-true allegations:
A denial shall fairly meet the substance of the requested admission, and when good faith requires that a party qualify his answer or deny only a part of the matter of which an admission is requested, he shall specify so much of it as is true and qualify or deny the remainder.
Further note that, under this rule, lack of knowledge, without further investigation, is an improper reason to deny a request to admit as:
An answering party may not give lack of information or knowledge as a reason for failure to admit or deny unless he states that he has made reasonable inquiry and that the information known or readily obtainable by him is insufficient to enable him to admit or deny.
A response to a request to admit that denies the request due to lack of information but does not include the affirmation above is incomplete or evasive and is therefore treated as a failure to answer.
An evasive response to a request to admit shows the other party is not credible in addition to giving rise to an inference that the underlying allegation is likely accurate: if it was inaccurate the other party wouldn’t need to weasel the response. Similarly, responses that admit the uncomfortable facts but add unrequested elaboration or explanation provide additional, useful, information that one would not have been entitled to had the responding party merely answered succinctly. For example, if the other party is asked to admit that he or she struck your client, adding that it was done in self-defense merely provides information about a defense that a simpler response would not have revealed. So long as the discovery or pleading response is accurate, adding information that makes one’s client look better in order to save face merely assists the other side in its case preparation. Yet discovery and pleading responses continue to add justifications that were not required.
The remedy for evasive discovery responses is a motion to compel. If the court concludes discovery responses are incomplete or evasive, it can sanction that party for these responses and order that complete, non-evasive responses be provided. See Rule 37, SCRCP. Once the litigant is forced to amend discovery responses to make them non-evasive, the opposing party can use both the initial response and the amended response in cross-examination, which makes the litigant propounding these initially-evasive responses look doubly weasely.
Unless the allegations against one’s client rise to the level of criminal conduct (in which case invoking the client’s 5th Amendment privilege against self incrimination can be the proper response), weasely answers to discovery or pleadings are almost always counterproductive. Better to acknowledge the weaknesses in one’s case and move on than attempt to blur the issue and keep the focus on the weakness. Further, unless the discovery request seeks elaboration, responding with minimal elaboration or explanation is best. Save any needed explanation or elaboration for trial when the other side may have little ability to anticipate or counter it.
When it comes to discovery or pleading responses, following Homer Simpson’s advice on weaseling is an invitation to trouble. Such responses merely make one’s client look like he or she has something to hide while keeping the case focus on the client’s bad acts. Counseling one’s client to admit the negative facts succinctly and without elaboration is not only the ethical procedure but, by reducing credibility issues surrounding these bad acts, reduces the focus on the client’s misbehavior. While many attorneys find the receipt of evasive responses or responses with unnecessary or unrequested elaboration to be frustrating, they actually provide a bounty of cross-examination fodder.
