Of Speaking Documents and Talking Clams: A Proper Answer Under Federal and State Rules
By Dmitry N. Feofanov
In the Alice-in-Wonderland universe of defensive pleading, documents speak for themselves. Every lawyer (including myself) has been told by his or her mentors that the "right way" to respond to certain allegations in a complaint is as follows: if the complaint alleges that a document says so-and-so, respond, "the document speaks for itself." If the complaint alleges that venue is proper, respond, "calls for legal conclusion." Add, "to the extent there remain any factual allegations, they are denied." If an allegation cannot be denied, ask for "strict proof."
Turns out, the "right way" is the wrong way. Senior Judge Milton Shadur of the Northern District of Illinois went as far as attaching to one of his opinions an appendix of "fundamental pleading errors that continue to crop up in responsive pleadings."1 The trial bar as well as the judiciary will do well to study the "fundamental errors" identified by Judge Shadur.
A. Federal Standards for Answers
The Federal Rules of Civil Procedure aspire to secure "the just, speedy, and inexpensive determination of every action."2 Consistent with this philosophy, the Rules establish a simple regime for responsive pleadings. If a defendant chooses to answer, he/she must "admit or deny the averments upon which the adverse party relies."3 There is only one other possibility: If a party is without "knowledge" or "information sufficient to form a belief as to the truth of an averment"4 (a much broader standard—just how much information do you need to form a belief?), the party may so state.
These three opinions—admit, deny, or state "without knowledge or information sufficient to form a belief" constitute the entire range of permitted responses in federal pleading.
B. Illinois Standards for Answers
Despite the obvious difference between fact and notice pleading, Illinois standards for answers are very much like their federal counterparts. The same desire to avoid unduly technical, time-consuming, and unjust pleading practices that animates the federal rules, is plainly stated in Section 1-106 of the Code of Civil Procedure: "This Act shall be liberally construed to the end that controversies may be speedily and finally determined according to the substantive rights of the parties."5 All pleadings must contain "plain and concise" statements of a claim or defense.6 The pleading standards for answers, then, clearly parallel the federal practice: answers must contain an "explicit admission or denial of each allegation" of the complaint.7 The third opinion is also present in Illinois: a party may state that it has "no knowledge thereof sufficient to form a belief."8 The Code specifically mandates that denials "must not be evasive."9
C. The Real World Practice
I would be the first to confess that, when I was on the defense side of the bar, my answers were anything but "plain and concise." Moreover, even when they were plain and concise, I claimed that documents spoke for themselves, refused to admit or deny legal conclusions, denied allegations "to the extent" any allegations of fact were present, and demanded strict proof.
I committed a fundamental pleading error in every case. More importantly, this practice prevented the speedy administration of justice contemplated by both federal and state rules of civil procedure. Instead of an instrument that fleshes out the real issues in dispute, the answer becomes an instrument of evasion, obfuscation, and delay ("Let them present evidence that venue is proper in DuPage!").
Part of this problem arises because some lawyers are simply not sufficiently morally upright to stand up to their clients who demand a "scorched earth" defense. A larger part of the problem, however, arises that many, perhaps most, do not realize that the "old way" is not the correct way.
His fifty-three years of practice of law (some of which, presumably, involved the "old way") did not stop Judge Shadur from embarking on a campaign to educate lawyers about their errors. We will all benefit from his experience and insight, as described below.
D. State Farm v. Riley—A Primer for the Uninformed
In State Farm v. Riley,10 Judge Shadur took the unusual step of appending to his opinion a list of "most common flaws" found in responsive pleadings. For example, section 2 of the Appendix ("Legal Conclusions")11 points that the common practice of declining to respond to "legal conclusions" violates "the express Rule 8(b) requirement that all allegations must be responded to."12 Similar logic would apply to Illinois pleadings, since Section 2-610 of the Code requires an "explicit admission or denial" of "each" allegation.
Next, in Section 3 ("Speaks for Itself"13), Judge Shadur points out another "unacceptable device," used by lawyers who "would prefer not to admit something that is alleged about a document in a complaint"14: the "speaks for itself" rejoinder. Judge Shadur gives this practice, and the lawyers who engage in it, their due:
This Court has been attempting to listen to such written materials for years (in the forlorn hope that one will indeed give voice)—but until some such writing does break its silence, this Court will continue to require pleaders to employ one of the three alternatives that are permitted by Rule 8(b) in response to all allegations about the contents of documents (or statutes or regulations).15
Again, Illinois standards appear to require no less—subparagraphs (a) and (b) of Section 2-610 of the Code provide for the same three alternatives with respect to answers.
In Section 1, Judge Shadur points out that the concept of "strict proof," so often demanded in responsive pleadings, "is nowhere to be found in the [federal] Rules," or in any other set of pleading rules. 16 Therefore, any such demand is "impermissible."17
Recently, in Baumann v. Bayer, AG, Judge Shadur ordered the defendant’s lawyers to re-draft the answer at no expense to the defendant. He listed the following paragraphs as violating the principles enunciated in State Farm v. Riley:
The allegations of this paragraph are legal conclusions and/or are directed to another defendant, and therefore require no response from [Defendant].
* * *
To the extent the allegations of this paragraph are legal conclusions, they require no response from [Defendant].
* * *
To the extent there remain in this paragraph any inconsistent or additional factual allegations that are directed to [Defendant], they are denied.
* * *
[Defendant] denies the remaining allegations of this paragraph to the extent they are inconsistent with the current state of medical knowledge.
* * *
To the extent the allegations of this paragraph are factual and are directed to [Defendant, Defendant] admits only that this paragraph purports to characterize clinical trials [other Defendants] conducted and/or submitted to the FDA in seeking approval to market Baycol in the United States. Such documents, being in writing, speak for themselves.18
The reader should not be surprised at the court’s reaction. Of particular note is the court’s criticism of the "to the extent" responses. As Judge Shadur put it,
Even apart from the specific matters that are addressed in the State Farm Appendix, it is of course obvious that any purported response that begins with "to the extent that" is wholly uninformative. How is the reader—whether opposing counsel of this Court—to divine just what [Defendant’s] counsel may view as being encompassed within that ambiguous language?19
E. Practical Considerations
For plaintiff’s counsel. If you are past the obligatory motion to dismiss stage, you are entitled to an answer that informs you of the real issues in controversy. Insist (by motion, if necessary) on admissions, denials, or don’t knows, as provided by the rules.
For defendant’s counsel. Zealous advocacy does not mean ignoring the rules. If you can deny an allegation, consistent with your obligations under Rules 11 or 137, do so. Otherwise, either admit or state you do not know, but forget about speaking documents.
For the judiciary. There is nothing more frustrating to a lawyer than a judge who does not follow the rules. In olden times (when documents spoke), the fact that judges don’t follow rules was common knowledge about the county east of us. It reached national prominence. Thus, the leading guide to Illinois evidence, after identifying "two persistent, false concepts in Illinois law," further identifies them by their moniker, "the Cook County hearsay rule."20
Fortunately, those days are behind us. Nevertheless, sometimes a cavalier disregard of clear rules does creep in (such as disregarding the requirement for a Rule 201(k) statement in motions with respect to discovery). In instances like that, I always want to say (but always restrain myself): "Just which of the rules are we disregarding in this case? Please tell me so I can disregard them too." This, of course, is no way to run a court. Disregard of unambiguous rules diminishes respect for the legal system; in fact, it deprives it of the right to call itself such. Both of the cases discussed in this article were issued by Judge Shadur sua sponte; perhaps our judiciary should consider assuming a more active role making sure in assuring that controversies are resolved "speedily and finally"21 and that answers do not amount to a legalized evasion.22
Sometimes a single opinion becomes a catalyst for change. While that is certainly true of many opinions of the United States Supreme Court, Judge Shadur’s opinions may unfortunately fail to have such a wide impact. However, the logic of his opinions is compelling, and we should heed his advice: responsive pleading does not belong to an Alice-in-Wonderland world. Documents do not speak. Nor do clams talk.
1 State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 278 (N.D. Ill. 2001).
2 Fed. R. Civ. P. 1.
3 Fed. R. Civ. P. 8(b).
5 735 ILCS 5/1-106. This point is re-emphasized in 735 ILCS 5/2-603(c), which again requires pleading to be "liberally construed," with a view to "doing substantial justice between the parties."
6 735 ILCS 5/2-603(a).
7 735 ILCS 5/2-610(a).
8 735 ILCS 5/2-610(b).
9 735 ILCS 5/2-610(c).
10 199 F.R.D. 276.
11 Id. at 278.
12 Id. (emphasis in the original).
13 Id. at 279.
14 Id. (emphasis in the original).
16 Id. at 278.
18 Baumann v. Bayer, AG, 2002 WL 1263987, at *1 (N.D. Ill. 2002).
20 James P. Carey, et al., Illinois Evidence with Objections, 62 (National Institutes for Trial Advocacy, 1988).
21 735 ILCS 5/1-106.
22 Cf. 735 ILCS 5/2-610(c) (denials must not be evasive); S. Ct. Rule 216(c) (denials must fairly meet the substance of the requested admission).
Dmitry N. Feofanov, a 1994 graduate of the Chicago-Kent College of Law, concentrates his practice in auto fraud and lemon law litigation. Until he started his own firm in 2002 (Chicago Lemon Law.com), he was a partner at Brooks, Adams and Tarulis in Naperville. He has been a judicial clerk for Justice David Harris of the Iowa Supreme Court and a staff attorney for the Fourth District.