Perhaps I am mellowing in my old age. Perhaps younger attorneys are simply more enamored of roundhouse punch allegations than I am comfortable with. But I increasingly see complaints or counterclaims with broad and wild allegations that I am pretty sure the other side cannot prove (even if they might be true). Such allegations call for what I now refer to as “nut up or shut up” discovery.
Let’s take the common allegation, “Plaintiff/Mother is engaging in a pattern of behavior to alienate the minor child from Defendant/Father.” I see this allegation when the parent-child relationship has broken down for completely explicable reasons, but it is easier to blame the other parent than accept responsibility for the breakdown (plus, actually accepting that responsibility will likely lead to an unfavorable change of custody).
The nut up or shut up discovery that this allegation would inspire is a request for production, “Please produce copies of all documents demonstrating that Plaintiff/Mother is engaging in a pattern of behavior to alienate the minor child from Defendant/Father.” It would inspire an interrogatory, “Please explain, in as much detail as possible, the factual basis for the claim Plaintiff/Mother is engaging in a pattern of behavior to alienate the minor child from Defendant/Father.” Note that both discovery requests literally cut-and-paste the allegation from the pleading. The goal is to leave the opposing party no wiggle room in responding.
Sometimes, one receives actual documents or an actual answer and at least one can learn the basis for the allegation. A response, “None at this time but discovery is ongoing and the Defendant intends to supplement this response once further discovery is completed,” is acceptable but one wants the language “None at this time” in the response if no answer or documents are being provided. A common response I get to this discovery is that “Discovery is ongoing and the Defendant is unable to respond until further discovery is completed.” I file motions to compel over such responses. The other side made the allegation and that side is required to show what proof they possess.
One goal of this nut up or shut up discovery is to demonstrate that these allegations were made at a time when the party making them had no proof of the allegations. Making negative and unsubstantiated allegations against the other parent is a factor in custody litigation.
Another goal is to force that party to provide this proof before trial. The “acceptable,” response “None at this time but discovery is ongoing and the Defendant intends to supplement this response once further discovery is completed,” anticipates a supplemental response. If there is not a supplemental response prior to trial, one can demonstrate at trial that the allegation was without evidentiary support. Making wild and unproven accusations against the other parent in the middle of custody litigation is a factor in both custody and attorney’s fees.
I tend to be extremely cautious and conservative in the allegations I make in pleadings. But if my colleagues are going to show less caution, I am going to employ the nut up or shut up strategy to gain an advantage from this lack of caution.
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