The Legal
| Citation | Vol. 26 No. 6 Pg. 0016 |
| Pages | 0016 |
| Publication year | 2021 |
No. It Does Not (Speak for Itself, That Is).
Judges have complained about the response "the document speaks for itself" for decades. Nonetheless it persists, along with its cousins, "calls for a legal conclusion" and "strict proof demanded." This article discusses the use of these phrases, why they should be avoided, and suggests options if your adversary employs them.
BY ERIKA BIRG, LUCAS WESTBY AND ALEX PISCIARINO
"[N]onsensical ... "[1] "[A]n amorphous nothing ..."[2]
"[P]seudo-response[] ..."[3]
"[A] faux-answer."[4]
These are just some of the pejoratives deployed by Judge William O'Kelley, then senior district court judge serving the U.S. District Court for the Northern District of Georgia, to condemn the use of the phrase "the document speaks for itself."[5]
Judges have complained about the response "the document speaks for itself" for decades.[6] Nonetheless it persists, along with its cousins, "calls for a legal conclusion" and "strict proof demanded." This article discusses the use of these phrases, why they should be avoided, and suggests options if your adversary employs them.
The Rules
Under O.G.C.A. § 9-11-8(d), if you fail to deny an allegation that requires an answer, the allegation is admitted.[7] So what qualifies as an allegation requiring an answer, and when is a responsive pleading not required? Certain pleadings, of course, do not require a response: answers to amended complaints,[8] answers to cross-claims,[9] answers to counterclaims[10] and replies to answers.[11] Georgia appellate courts also do not require an answer to specific types of allegations within pleadings, particularly (i) amounts of damages (which are mentioned in the rule) and (ii) prayers for relief.[12]
The Federal Rules of Civil Procedure ("FRCP" or "Federal Rules") differ slightly. FRCP 8(b)(6) says, "[a]n allegation-other than one relating to the amount of dam-ages-is admitted if a responsive pleading is required and the allegation is not denied. If a responsive pleading is not required, then an allegation is considered denied or avoided."[13] The Federal Rules
The Document Speaks for Itself The origin of "the document speaks for itself" is not entirely clear, but it may derive from the best-evidence rule, embodied in Federal Rules of Evidence 1001 through 1008, and Georgia's analog, O.C.G.A. § 24-10-1003. The best-evidence rule requires parties to use original documents to prove the content of any writing, recording or photograph rather than characterizations of those documents.[15] Nothing, however, prohibits a lawyer from asking a witness to read from or paraphrase from a document already admitted into evidence.[16] And importantly, nothing prohibits characterizing documents in complaints, and nothing prohibits asking an opposing party to admit those characterizations.[17]
Lawyers often plead the phrase "the document speaks for itself" when countering an allegation containing a direct quote from a document paired with an interpretation of that document.[18] Responding "the document speaks for itself" intends to acknowledge the document without admitting the adverse party's interpretation. But it is not an approved response to an allegation in a complaint. Instead, the Georgia Civil Practice Act and the Federal Rules permit only three responses: admit, deny, or state that the party lacks knowledge or information sufficient to form a belief about the truth of an allegation.[19] O.C.G.A. § 9-11-8(b) specifically provides that:
[a] party shall state in short and plain terms his defenses to each claim asserted and shall admit or deny the averments upon which the adverse party relies If he is without knowledge or information sufficient to form a belief as to the truth... neither the Georgia nor the Federal Rules allow for "the document speaks for itself." This makes using the phrase risky and chances an order requiring an amended or repleaded answer.
of an averment, he shall so state, and this has the effect of a denial.[20]
There are no other options.
As a result, neither the Georgia nor the Federal Rules allow for "the document speaks for itself." This makes using the phrase risky and chances an order requiring an amended or repleaded answer.[21] The response is also evasive and wasteful as it potentially delays the trial process with unnecessary argument over the sufficiency of pleadings and the time needed for repleading. Recognizing this, one court ordered an attorney who repeatedly answered "the document speaks for itself" not to charge the client for the fees incurred opposing the adverse party's motion to strike or filing an amended answer.[22]
Worse yet for counsel and client, though, is the risk that the trial court grants a motion to strike or considers the adverse party's allegations admitted.[23] Courts in other jurisdictions have done so.[24] One Connecticut court, when confronted with this language, sought authority for the phrase "speaks for itself," and found legitimate use of the phrase when discussing the tort concept of res ipsa loquitur, or when interpreting an arguably ambiguous statute.[25] Finding no precedent for employing the phrase to respond to a pleaded allegation, the court deemed each allegation to which the phrase responded admitted.[26] Similarly, a federal court in Virginia deemed admitted characterizations of 34 emails to which defendants responded that they speak for themselves.[27]
To be safe, if you feel you absolutely must employ "the document speaks for itself," add a clear denial of the allegation.[28] Better yet, though, avoid it. If you find yourself disadvantaged by an opposing party who uses it in place of a clear admission or denial, consider moving to strike the language under FRCP 12(f) as "redundant, immaterial, [or] impertinent."[29]
Calls for Legal Conclusions
Evasive responses are not limited to "the document speaks for itself." Saying that an allegation in a pleading or discovery request "states" or "calls for a legal conclusion" often will fall into the same bucket of impermissible responses.
It is not entirely clear how responding to an allegation with "calls for a legal conclusion" emerged.[30] One theory suggests these responses transpose habits from other circumstances in which a clear admission or denial is not required, such as in a motion for judgment on the pleadings.[31] For those motions, "it is sufficient to refer to the rule that a motion for judgment on the pleadings admits facts but does not admit conclusions of law."[32] Another theory is that refusing to admit or deny legal conclusions became common because courts often tolerate failure to deny legal conclusions if the answer otherwise responds directly to factual allegations.[33]
"States a legal conclusion" also may spring from the rule that plaintiffs must do more than state legal conclusions in a federal court complaint.[34] Plaintiffs have long had to plead sufficient facts to give the defendant fair notice of the nature of the claim,[35] and the heightened pleading standards established in the Supreme Court's Bell Atl. Corp. v. Twombly and Ashcroft v. Iqbal decisions required pleading facts that plausibly show plaintiff is entitled to relief.[36]
Yet the Georgia and Federal Rules say nothing about disregarding legal conclusions when responding to a complaint, and courts may require a response. "Legal conclusions are a perfectly proper part of a plaintiff's allegations" and "must be answered to comply with Rule 8(b)."[37] "[A]ll allegations must be responded to," including those that state legal conclusions.[38] Courts have enforced this requirement, including courts within the U.S. Court of Appeals for the Eleventh Circuit. Thus, know that in federal court, a response that refuses to answer an allegation because it "states a legal conclusion" is "impermissible under the plain language of Rule 8(b)."[39]
Like with "the document speaks for itself," courts may deem "states a legal conclusion" responses to be admissions,[40] order repleading,[41] or (where paired with a sufficiently clear denial) simply strike the offending language.[42] An unlucky result here could lead to catastrophic results, particularly in jurisdictional battles, where the response appears most often.
Like with "the document speaks for itself," courts may deem "states a legal conclusion" responses to be admissions, order repleading, or (where paired with a sufficiently clear denial) simply strike the offending language.
"Failure to outright deny allegations of jurisdiction, for example, could be critical if the defendant wants to challenge that issue, since failure to include that defense in the answer constitutes a waiver."[43]
References to legal conclusions are also sometimes put forward in response to requests for admission. There, requests to admit to "pure conclusions of law unrelated to facts are objectionable" under FRCP 36.[44] A party may however properly request that any other party admit "the application of law to fact."[45] Thus, counsel should scrutinize the requests for admission, answering only those requests in compliance with FRCP 36.[46]
Here again we see a circumstance in which the most prudent response is to admit, deny or "state in detail why the answering party cannot truthfully admit or deny" the allegation.[47]
Strict Proof Demanded
Like the above, the phrase that a defendant "demand[s] strict proof' has "no place in a properly plead answer."[48] The phrase "strict proof" is meaningless ("whatever that is," as one judge wryly wrote[49]). And demands for strict proof fail for the same reasons that "the document speaks for itself" does. Such a demand is, as one federal court put it, a "depart[ure] from Rule 8(b)'s plain roadmap" and is "unknown to the federal practice or to any other system of modern pleading."[50]...
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