Some lawyers will send detailed Requests for Admissions to an opposing party after their deposition asking that statements from the depsoition be admitted or denied. While this may seem redundant in some ways, I think it is a great technique to "cement" testimony that will be used in trial. For example, the RFA may read: "Admit or deny that you were 'looking to the left when [you] entered the intersection of Jones and Martin street. (Defenedants deposition, June 6, 2006, page 22, line 12-13)".
I think this is a great technique, and here is why:
I use the same method myself. It is sort of redundant because you can use the depo statements anyhow (you can read the parties depos into evidence, etc) but when you do it this way it tends to freak out opposing counsel for some reason. I mean, they already said it in a sworn statement, what's the big deal of admitting what is already on paper?
I like to think of it as "pre-impeachment" because it is an additional step in cementing the testimony of the deponent. In other words, it is tougher at the time of trial to explain away the statement once you have said it, and then "admitted" it. Also, in NC there is no limit on the number of RFA's that can be sent, unlike interrogatory requests.
For those worried about responding to the RFA, a simple "Admitted" will do, but I would suggest responding to the RFA with, "it is admitted that the deponent made the above statement during the deposition of DATE though the content of that statement should be read in context with the questions asked and other comments made." That's pretty much an unnecessary response after the admitted part, but at least you get it on paper for when the opposing attorney tries to use the RFA to impeach your client.
Some lawyers will say, "but you can't read pleadings into evidence in NC." Well, that's true in one sense, but the "rule" is a lot narrower than it seems, It dates back to the historical times of reading the complaint to start a trial, or the indictment. There is case law that goes on to say that all pleadings are considered "statements" of the party, even when the party does not sign or verify them. Thus, even an Answer signed only by opposing counsel can be used at trial and there is sort of a rebuttable presumption that the Defendant has "adopted" the statements of his attorney. Having said that, some Judges won't buy this, but verified discover responses and depos are certainly admissible for certain purposes. Plus, by using the RFA, opposing counsel can use the statements in opening, without first having to have the "testimony" read in during the trial, I think.
Chris Nichols
Nichols Law Firm
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