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Can You Impeach with Request For Admission Denials? Victaulic Company’s $55 Million Dollar Question

In written discovery, litigators know that drafting questions and responses must be done carefully because both are strategically important. Expertly crafted questions are designed to be well-hidden minefields and responding to them requires extraordinary care to anticipate and diffuse them. Many litigators have declared victory when a cleverly drafted question achieves its goal of boxing in the opponent and obtaining an admission on a critical element of the case. However, a denial camouflaged in lawyerly objections presents the tricky question of what to do with those denials.

Last month, in Victaulic Company v. American Home Assurance Company (2018) 20 Cal. App. 5th 948, the First District Court of Appeal told litigators exactly what NOT to do: Do not try to beat up an unsuspecting witness with the other side’s denials or well-versed objections. In Victaulic Company, the Court of Appeal threw out a $55 million verdict in favor of plaintiff Victaulic Company and confirmed that the prohibition on using request for admission denials or responses to contention interrogatories at trial cannot be circumvented by laying an impeachment trap for the witness.

Nancy Harris, Chair of Meyers Nave’s Commercial Litigation Practice, and Litigation Associate Rob Moutrie published an article in The Recorder that explains what went wrong and what went right in Victaulic Company, what post-trial remedies still exist, and what litigators can do to stay out of trouble. Please click here to read their article.