June 2021 Volume 26, Number 6 From the YLD Director: GEORGIA BAR A Year of #PurposeThroughService 2021 Fiction Winner: Recusal JOURNAL Compassionate Lawyering at a Time of Uncertainty The Art of Briefs and Motions THE LEGAL No. It Does Not (Speak for Itself, That Is). GBJ | The Legal 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 of course, do not require a response: an- “[A]n amorphous nothing ...”2 swers to amended complaints,8 answers to “[P]seudo-response[] ...”3 cross-claims,9 answers to counterclaims10 “[A] faux-answer.”4 and replies to answers.11 Georgia appellate courts also do not require an answer to These are just some of the pejoratives specific types of allegations within plead- deployed by Judge William O’Kelley, then ings, particularly (i) amounts of damages senior district court judge serving the U.S. (which are mentioned in the rule) and District Court for the Northern District of (ii) prayers for relief.12 Georgia, to condemn the use of the phrase The Federal Rules of Civil Procedure “the document speaks for itself.”5 (“FRCP” or “Federal Rules”) differ slightly. Judges have complained about the re- FRCP 8(b)(6) says, “[a]n allegation—other sponse “the document speaks for itself” than one relating to the amount of dam- for decades.6 Nonetheless it persists, along ages—is admitted if a responsive pleading with its cousins, “calls for a legal conclu- is required and the allegation is not denied. sion” and “strict proof demanded.” This If a responsive pleading is not required, article discusses the use of these phrases, then an allegation is considered denied or why they should be avoided, and suggests avoided.”13 The Federal Rules do require an- options if your adversary employs them. swers to specific allegations in cross-claims, counterclaims and amended complaints.14 The Rules Under O.G.C.A. § 9-11-8(d), if you fail The Document Speaks for Itself to deny an allegation that requires an The origin of “the document speaks for answer, the allegation is admitted.7 So itself” is not entirely clear, but it may what qualifies as an allegation requir- derive from the best-evidence rule, ing an answer, and when is a responsive embodied in Federal Rules of Evidence pleading not required? Certain pleadings, GETTYIMAGES.COM/IPGGUTENBERGUKLTD 1001 through 1008, and Georgia’s ana- 2021 JUNE 17 log, O.C.G.A. § 24-10-1003. The best- of an averment, he shall so state, and evidence rule requires parties to use this has the effect of a denial.20 original documents to prove the content of any writing, recording or photograph There are no other options. rather than characterizations of those As a result, neither the Georgia nor documents.15 Nothing, however, prohib- the Federal Rules allow for “the docu- its a lawyer from asking a witness to read ment speaks for itself.” This makes us- from or paraphrase from a document ing the phrase risky and chances an or- already admitted into evidence.16 And der requiring an amended or repleaded importantly, nothing prohibits charac- answer.21 The response is also evasive terizing documents in complaints, and and wasteful as it potentially delays the nothing prohibits asking an opposing trial process with unnecessary argument party to admit those characterizations.17 over the sufficiency of pleadings and the Lawyers often plead the phrase “the time needed for repleading. Recogniz- document speaks for itself” when coun- ing this, one court ordered an attorney tering an allegation containing a direct who repeatedly answered “the document quote from a document paired with an speaks for itself” not to charge the cli- interpretation of that document.18 Re- ent for the fees incurred opposing the sponding “the document speaks for itself” adverse party’s motion to strike or filing intends to acknowledge the document an amended answer.22 without admitting the adverse party’s Worse yet for counsel and client, interpretation. But it is not an approved though, is the risk that the trial court response to an allegation in a complaint. grants a motion to strike or considers Instead, the Georgia Civil Practice Act the adverse party’s allegations admitted.23 and the Federal Rules permit only three Courts in other jurisdictions have done responses: admit, deny, or state that the so.24 One Connecticut court, when con- party lacks knowledge or information fronted with this language, sought author- sufficient to form a belief about the truth ity for the phrase “speaks for itself,” and of an allegation.19 O.C.G.A. § 9-11-8(b) found legitimate use of the phrase when specifically provides that: discussing the tort concept of res ipsa lo- quitur, or when interpreting an arguably [a] party shall state in short and plain ambiguous statute.25 Finding no precedent terms his defenses to each claim asserted for employing the phrase to respond to a and shall admit or deny the averments pleaded allegation, the court deemed each upon which the adverse party relies. If allegation to which the phrase responded he is without knowledge or information admitted.26 Similarly, a federal court in sufficient to form a belief as to the truth Virginia deemed admitted characteriza- tions of 34 emails to which defendants re- sponded that they speak for themselves.27 To be safe, if you feel you absolutely must employ “the document speaks for it- self,” add a clear denial of the allegation.28 ... neither the Georgia nor the Federal Rules Better yet, though, avoid it. If you find yourself disadvantaged by an opposing allow for “the document speaks for itself.” party who uses it in place of a clear admis- This makes using the phrase risky and sion or denial, consider moving to strike the language under FRCP 12(f) as “redun- chances an order requiring an amended or dant, immaterial, [or] impertinent.”29 repleaded answer. 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 conclu- 18 GEORGIA BAR JOURNAL sion” 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 con- clusion” emerged.30 One theory suggests these responses transpose habits from Like with “the document speaks for other circumstances in which a clear ad- itself,” courts may deem “states a legal mission or denial is not required, such as in a motion for judgment on the pleadings.31 conclusion” responses to be admissions, For those motions, “it is sufficient to refer order repleading, or (where paired with a to the rule that a motion for judgment on the pleadings admits facts but does not ad- sufficiently clear denial) simply strike the mit conclusions of law.”32 Another theory offending language. is that refusing to admit or deny legal con- clusions became common because courts often tolerate failure to deny legal conclu- sions if the answer otherwise responds di- rectly to factual allegations.33 “Failure to outright deny allegations of “States a legal conclusion” also may jurisdiction, for example, could be critical spring from the rule that plaintiffs must if the defendant wants to challenge that do more than state legal conclusions in a issue, since failure to include that defense federal court complaint.34 Plaintiffs have in the answer constitutes a waiver.”43 long had to plead sufficient facts to give References to legal conclusions are the defendant fair notice of the nature of also sometimes put forward in response the claim,35 and the heightened pleading to requests for admission. There, requests standards established in the Supreme Court’s to admit to “pure conclusions of law un- Bell Atl. Corp. v. Twombly and Ashcroft v. Iqbal related to facts are objectionable” under decisions required pleading facts that plau- FRCP 36.44 A party may however prop- sibly show plaintiff is entitled to relief.36 erly request that any other party admit Yet the Georgia and Federal Rules say “the application of law to fact.”45 Thus, nothing about disregarding legal conclu- counsel should scrutinize the requests for sions when responding to a complaint, admission, answering only those requests and courts may require a response. “Le- in compliance with FRCP 36.46 gal conclusions are a perfectly proper Here again we see a circumstance in part of a plaintiff’s allegations” and “must which the most prudent response is to be answered to comply with Rule 8(b).”37 admit, deny or “state in detail why the “[A]ll allegations must be responded to,” answering party cannot truthfully admit including those that state legal conclu- or deny” the allegation.47 sions.38 Courts have enforced this re- quirement, including courts within the U.S. Court of Appeals for the Eleventh Strict Proof Demanded Circuit. Thus, know that in federal court, Like the above, the phrase that a de- a response that refuses to answer an al- fendant “demand[s] strict proof” has legation because it “states a legal conclu- “no place in a properly plead answer.”48 sion” is “impermissible under the plain The phrase “strict proof” is meaning- language of Rule 8(b).”39 less (“whatever that is,” as one judge Like with “the document speaks for wryly wrote49).