Discovery: What is a Request for Admission?

A Request for Admission asks a party to either admit or deny certain facts in order to identify undisputed facts and narrow the proof required at trial.  If the party fails to respond to the Request for Admission within the time required to respond, the party is automatically deemed to have admitted the facts contained in the request (a “deemed admission”).  Admissions are also commonly used to prove up the authenticity of documents, such as the contract between the parties.

The use of admissions at trial is in many ways much like the use of interrogatories and disclosures, but admissions also enjoy many distinct and important differences.  Like interrogatories and disclosures, they may only be served on parties to a lawsuit and may be used only against the party who made the admission.  However, unlike interrogatories and disclosures which can be used against a party in a subsequent lawsuit as a statement against interest, admissions may only be used in the proceeding in which the admissions were made.  Therefore, in response to a Request for Admission, a party may freely admit a fact in one lawsuit without putting himself in jeopardy of having that admission used against him in another.

As with interrogatories and disclosures, a party may not use his own self-serving admissions or denials as evidence at trial.  (In fact, a denial to a request for admission has no probative value and cannot be used by either party as evidence at trial.) Admissions are also generally read into evidence, but are also permitted to be marked and introduced into evidence as an exhibit. 

The fundamental difference between admissions and all other forms of discovery is in the conclusive and preclusive evidentiary value of the admissions. 

  • Conclusive value:  While interrogatory answers, disclosures and deposition answers may provide some competent evidence to prove a fact at trial, an admission conclusively proves the fact admitted to.
  • Preclusive value:  Whether a fact is voluntarily admitted or involuntarily deemed admitted, once the admission occurs, no other evidence will be permitted (over objection) to dispute the fact.  The fact is admitted as a matter of law; it is conclusively proved without further evidence.*

One need not offer the admission into evidence at trial in order to benefit from its effect.  As long as the admission has been filed in the court’s file, it is competent as conclusive proof.  But if evidence has been admitted to the contrary (because no objection was lodged when the contrary evidence was offered), the admission must be offered into evidence or it will have no probative value at all.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

*If no objection is lodged and evidence to the contrary is admitted, then the status of the admission is down-graded from conclusive evidence to merely some evidence. Therefore, vigilance is required to protect both the preclusive and conclusive effect of an admission.

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Discovery: What is an Interrogatory?

An Interrogatory is somewhat similar to a Request for Disclosure. It is a discovery tool which requires the other side to answer questions about the lawsuit prior to trial.  Unlike Disclosures, which are preset generic questions which have been approved in advance to be asked in any civil lawsuit, interrogatories are individually crafted and often tailored to the specific facts and allegations at issue in the lawsuit in which they are served.

Interrogatories are generally limited in number and are therefore most commonly used to narrow issues and focus on discrete theories and facts to develop the case for trial.  If properly served and properly drafted, a party must answer any interrogatory which is relevant to the lawsuit, unless the question calls for privileged information (which will be discussed in a later post).  If a party is providing interrogatory answers based on their personal knowledge, they are required to sign their responses under oath. 

Limits to the number of interrogatories which may be served are imposed by specific rules of procedure, such as Texas Rule of Civil Procedure 190.2(b)(3), which imposes a limit of 15 interrogatories in Level 1 cases, and TRCP 190.3(b)(3), which imposes a limit of 25 interrogatories for Level 2 cases.  The court may modify these limitations under certain circumstances and may also establish entirely different limitations in Level 3 cases pursuant to TRCP 190.4(b).

Response to interrogatories are generally due 30 days after the interrogatories are properly served upon the other party, but in some circumstances the due date may be extended, either by rule or by court order.

Interrogatories, like Disclosures, may only be served on parties to the lawsuit, not witnesses or others who aren’t named parties.  Like Disclosures, they may only be used at trial against the party who answered them.  A party may not introduce his own self-serving answers into evidence, but if a party is questioned about his interrogatory answers at trial, the party may then be able to offer the remainder of the answer or other interrogatory answers to provide context to the answer.

As with a Disclosure, the responding party has an ongoing duty to supplement responses throughout the duration of the lawsuit.  In other words, even if an interrogatory response was accurate and truthful when given, if over the course of the lawsuit, the response has become inaccurate or incomplete, the response must be corrected or updated as soon as new or correct information is known.

The manner in which interrogatory answers may be used at trial is the same as for Disclosure responses.  Interrogatories and the answers thereto may be read into evidence, but they may also be marked and received into evidence as well.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

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Discovery: What is a Request for Disclosure?

A Request for Disclosure is a discovery tool which permits a party to obtain certain pre-approved information from another party without having to argue over whether the information is discoverable or must be produced.  Texas Rule of Civil Procedure 194.2 provides for the discovery of twelve different categories of information in a Request for Disclosure:

  1. The correct names of the parties to the lawsuit;
  2. The name, address, and telephone number of any potential party to the lawsuit;
  3. The legal theories and factual bases of the responding party’s claims or defenses;
  4. The amount and method of calculation of any economic damages;
  5. The identity and certain other information about all potential witnesses;
  6. The identity and certain other information about all expert witnesses;
  7. Any indemnity or insurance agreements which might be triggered by a judgment in the case;
  8. Any settlement agreements relating to the case;
  9. Witness statements which have been given in the case;
  10. A claimant’s medical bills and records relevant to damages sought in the case (or an authorization allowing the other party to obtain them directly);
  11. Any medical bills and records obtained through an authorization provided by the opposing party;
  12. The name, address and telephone number of any potential responsible third party.

If a Request for Disclosure precisely tracks the language of the rule[1] and is timely and properly served[2], the responding party has no other option but to provide the information requested. The responding party cannot object or claim a privilege to shield the information from discovery.

A party’s response to a request for disclosure must be supplemented any time the responding party becomes aware of additional information that hasn’t already been provided.  This is commonly referred to as an “on-going duty to supplement.”

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

[1] The request must be stated as follows:  “Pursuant to Rule 194, you are requested to disclose, within 30 days of service of this request, information or material described in Rule [state rule, e.g., 194.2, 194.2(a), (c), and (f), or 194.2(d)-(g)].”

[2] The request may be made any time after the suit is filed but must be served at least 30 days before the discovery period in the case ends.

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What is Discovery?

Discovery is a process that occurs after a civil lawsuit has been filed but before trial occurs in the case.[1]  During this “pretrial” period, the parties in the lawsuit may obtain information from each other and witnesses who have knowledge of facts relevant to the case. This information can be obtained in various forms – testimony, documents (both written and electronic) and tangible items.

The purpose of discovery is two-fold:

  1. First, discovery helps streamline the actual trial of cases. By discovering all of the relevant evidence in advance of trial, both sides can properly prepare for the efficient presentation of and objection to certain evidence at trial. With effective use of pretrial discovery, the parties may also be able to identify certain undisputed facts which may be summarily stipulated to in lieu of the more time-consuming traditional process of introduction of testimony and/or documents at trial.
  2. The second purpose of discovery is to facilitate settlement between the parties so that a trial may not be necessary in the case.  Properly conducted, discovery aids both sides in learning the strength and weaknesses of their own, as well as their opponent’s positions.  Because having this knowledge in advance of trial allows the parties to assess the relative merits of their positions, many parties are able to come to a mutually-agreeable solution to the problem without the necessity of a empaneling a jury to resolve their dispute.

In Texas, several methods may be used to obtain discovery, including: depositions, interrogatories, requests for disclosures, requests for admissions, requests for production, requests for entry upon land, requests for medical examinations and subpoenas. 

Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

[1] There is some limited discovery permissible in criminal cases, but discovery in that context will not be addressed here.

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What’s the Difference Between an Order and a Judgment?

This is a parallel question to the previous question (what is the difference between a hearing and a trial), because, generally speaking, an order is what follows a hearing, whereas a judgment is what follows a trial.

Normally, a judgment is the final, decisive act that resolves a dispute in court.  It is always in writing and signed by the judge, and it declares who wins the lawsuit and what, if anything, the winner receives as the prevailing party. Ordinarily, a judgment resolves all of the disputes between all of the parties in the case.[1] 

An order, on the other hand, resolves a dispute between the parties but does not normally resolve the entire case.[2] In many cases, dozens or even hundreds of orders may be issued before a final judgment is signed in a case.  For example, judges sign orders of continuance (moving a trial setting to a later date), orders of transfer (moving the case to another court), docket control orders (establishing a schedule for the case) and discovery orders (requiring the parties to exchange certain information), none of which actually resolve the lawsuit.  Also, while judgments are always in writing, orders sometimes are not – orders may simply be issued verbally from the judge in open court (such as, “I order the parties to be back in court at 8 o’clock tomorrow morning”).

Labels can sometimes be deceptive, however.  Summary judgments and default judgments, for example, do not always dispose of the entire case, even though they are called “judgments.” Sometimes these two types of judgments only dispose of some of the parties or some of the issues in the case, leaving other parties and issues to be adjudicated at a later date or at trial.  (These non-final judgments are technically referred to as an “interlocutory” – meaning interim, or temporary – judgments to distinguish them from final judgments.)  Interlocutory judgments are really interim orders, despite being labeled as a “judgments.”

Likewise, occasionally a lawsuit will be resolved by an order of dismissal or order of non-suit.  If the entire lawsuit is resolved through an order of dismissal, then it is a judgment, despite the fact that it is entitled “order.”

To determine whether a judgment is really a final judgment or an order is merely an order, a person must read beyond the labels.  To decide which is which, compare the wording of the order or judgment with the pleadings which set forth all of the parties and claims in the lawsuit.  If the “order” actually disposes of all of the parties and all of the claims remaining in the case, then the order is a final judgment.  If, on the other hand, the “judgment” leaves claims still pending between parties in the lawsuit, then it is only an order and there are still matters to be resolved in the lawsuit before a final judgment is signed.

What’s in a name? That which we call a rose by any other name would smell as sweet.  – spoken by Juliet (Romeo and Juliet, III, II, 1-2)

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

[1] However, this is not always the case.  Some judgments are “interlocutory” – keep reading.

[2] This, too, is not always the case.  Some orders are final – keep reading. 

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What’s the Difference Between a Hearing and a Trial?

A hearing is to a trial what a battle is to a war. 

During the pendency of a case, the parties to a lawsuit may experience ongoing conflicts, ranging from minor disagreements to serious disputes.  When these pretrial conflicts arise, the judge will ordinarily conduct a hearing and allow both sides to make arguments and/or offer evidence limited to the point in dispute.  At the conclusion of the hearing, the judge will determine which side prevails in that particular matter, but this pretrial ruling generally will not resolve the entire case. 

When the day of trial comes, however, both sides will present all of the argument and evidence necessary to decide the entire case.  After all of the argument and evidence is presented, either the judge or the jury will make a decision that once-and-for-all determines which side wins the entire case. 

For example, one side may make a pretrial motion for change of venue.  At the venue hearing, the judge may agree with the other side that the case should remain in the court where it was filed, but that ruling will not resolve the case. At some later point, there will be a trial to determine who wins and who loses, and just because the party lost at the venue hearing doesn’t mean that they might not ultimately win at trial.

So, just as an army can lose a battle but win the war, one party may lose at a hearing, or even a series of hearings, but end up winning the lawsuit.  And vice-versa.

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

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How old must a child be in order to testify in court?

Most, if not all, jurisdictions have no minimum age requirement in order for a child to be permitted to testify in court.  Instead, judges are given discretion to determine whether a child is competent to testify.

In most jurisdictions, judges look at the issue from two perspectives: 

  1. At the time of the event that the child will testify about, did the child have the ability to observe and remember the event? and
  2. At the time of testimony, does the child has the ability to remember the past event and accurately narrate the facts surrounding it?

If the answer to these two questions is “yes,” then the child is considered competent to testify.  Using this standard, in Texas courts, as in other state and federal courts, children as young as four years of age have been permitted to testify.

A child doesn’t have to understand what the formal oath means in order to testify, either.  In fact, it is not uncommon for courts to dispense with administering a formal oath to a child witness.  Instead, the judge will determine if the child understands the need to be truthful, and, if so, then he or she will impress upon the child the need to be truthful in words that the child can understand.  That admonishment will suffice in lieu of a formal oath.

For a more in-depth look at witness competency in Texas civil courts, go to:

— Bonnie Sudderth, Judge of the 352nd District Court of Tarrant County, Texas

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