CBA Record July-August 2019

By Richard Lee Stavins

Denying a Request to Admit Truth of Facts: Top FiveWays to Commit Malpractice

mony, the testimony of her fact witnesses, the testimony of her expert witnesses, all inconsistent evidence and all inconsistent allegations. Snow v. Power Construction Co., LLC, 2017 IL App (1st) 151226, ¶ 81; Grunioh v. Effingham Equity, Inc., 174 Ill. App.3d 508, 516 (4th Dist. 1988); Tolbird v. Howard, 43 Ill.2d 357, 362-63 (1969); Dremco, Inc. v. Hartz Construction Co. , 261 Ill.App.3d 531, 536 (1st Dist. 1994). Miss the Deadline Method number 4: Allow the time for responding to the request to expire. On the contrary, the attorney must never let the time for responding expire. The time specified for responding to a request to admit is a strictly enforced 28 days. S. Ct. Rule 216(c). In Armagan, the Appellate Court held that serving a response one day late was too late and that an admission had therefore occurred. 2014 IL App (1st) 121840, ¶ 17. Obviously, properly counting the 28 days is crucial. Properly counting the 28 days can be dif- ficult. Because a request to admit is a form of discovery, S. Ct. Rule 201(a), neither the

216 is not merely an evidentiary admission that may be amended later or contradicted at trial. Rather, it is a judicial admission that may not be amended or contradicted. “If the proper framework of Rule 216 is not followed an incontrovertible judicial admis- sion results and the fact is withdrawn from contention.” Oelze v. Score Sports Venture, LLC, 401 Ill.App.3d 110, 125 (1st Dist. 2010). Judicial admissions under Rule 216 are incontrovertible and may not be contra- dicted. S. Ct. Rule 216(c); Zwickey; Tires ‘N Tracks; County Treasurer. “The effect of a judicial admission is to remove the proposi- tion in question from the field of disputed issues.” Hall v. Cipolla, 2018 IL App (4th) 170664, ¶ 93; Dauen v. Board of Fire and Police Commissioners of the City of Sterling, 275 Ill.App.3d 487, 491 (3d Dist. 1995). A litigant may not contradict a judicial admis- sion once the judicial admission is made. In re Estate of Rennick, 181 Ill.2d 395, 406 (1998); Rosbottomv. Hensley, 61 Ill.App.2d 198, 215 (4th Dist. 1965). The bar on contradicting a judicial admission at trial is all-encompassing. The bar extends to the barred party’s own testi-

With apologies to popular “top ten lists,” here are the top five ways to commit legal malprac- tice when preparing a denial in response to a Supreme Court Rule 216 request to admit truth of facts or genuineness of documents. Delay the Response Method number 5: Treat the opposition’s request to admit and your client’s denial as something you can always deal with later or that you can amend later if something is incorrect. On the contrary, a request to admit under Rule 216 is a crucial discovery device. If the responding party does not strictly comply with the rule’s requirements, whatever was requested to be admitted will be deemed admitted. S. Ct. Rule 216(c); In re Applica- tion of County Treasurer, 2012 IL App (1st) 112897, ¶ 27; Armagan v. Pesha, 2014 IL App (1st) 121840, ¶ 16; Tires ‘N Tracks, Inc. v. Dominic Fiodirosa Construction Co., Inc., 331 Ill.App.3d 87, 91 (2d Dist. 2002); Zwicky v. Freightliner CustomChassis Corp., 373 Ill.App.3d 135, 140 (2nd Dist. 2007). Any admission created by noncompli- ance or by defective compliance with Rule

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