Monday, September 7, 2015

Quit Demanding "Strict Proof" in Your Answers -- it's not a thing

Lemming (Lem-ing; noun):  A member of a crowd with no originality or voice of his own. One who speaks or repeats only what he has been told.  Source: Urban Dictionary

(source: Wikipedia)
Do you ever wonder why people do the things they do?  I do, especially when it comes to litigation-related matters.  With the benefit of e-filing in the U.S. District Courts, we now have the ability to see how other litigators approach certain issues.  Sometimes those approaches are creative, and sometimes ... well not so much.  

I frequently see attorneys do things that make me scratch my head.  One example of this is when an answer denies an allegation and then "demands strict proof thereof."  When I first saw such a thing, I thought, "Gosh, that Billy Bob sure knows what he's doing.  Strict proof, I bet ol' Billy Bob is really giving it to those plaintiffs.  I should probably save that for the next time I draft an answer."  


But seriously, what does demanding "strict proof" really mean, and why do lemmings attorneys keep slipping it into their responsive pleadings?  Does it somehow magically transform the burden of proof from a preponderance of the evidence to beyond a reasonable doubt?  Does it require a plaintiff to prove their case only via direct evidence?  If you don't add it to your answer, have you waived the ability to move for a directed verdict or argue the plaintiff has not met their burden of proof? 

Step 1:  Look at the Rules of Civil Procedure


Civil litigation in South Carolina's state courts is governed by the South Carolina Rules of Civil Procedure, which became effective July 1, 1985.  There are some idiosyncrasies, but by and large, South Carolina's Rules of Civil Procedure are the same as the Federal Rules of Civil Procedure.  The concept of "strict proof" does not appear anywhere in the text of the South Carolina or Federal Rules of Civil Procedure.  Nowhere.   

Rule 8 of the Rules of Civil Procedure provides us with the basic ground rules for drafting a responsive pleading/answer.  A defendant must admit or deny the allegations asserted against it by the plaintiff or the allegations not responded to are deemed admitted.  If a defendant has any affirmative defenses, the defendant must raise those in its answer.  Moreover, if the defendant has any counterclaims or cross-claims, those too must be raised in a defendant's answer. Rule 8 says nothing about demanding "strict proof."  

For something to appear in just about every answer I've read since becoming an attorney, one might think the Rules demanded it.  Nope.  

Step 2:  What does Case Law say?

In a post-Iqbal/Twombly world, those of us who litigate know that the Rules of Civil Procedure have been supplemented and explained by various cases. Just because the Rules don't mention a concept doesn't mean it doesn't exist.   

I initially thought the "strict proof" allegations were a relic of the old code-pleading system (pre-SCRCP).  That, however does not appear to be the case.  In Pegues v. Polson, 128 S.C. 456, 123 S.E. 8 (1924), South Carolina's Supreme Court, citing the applicable section of the Code of 1922, notes the defendant's demand for "strict proof" was manifestly insufficient as a denial.  

Judge Milton Shadur of the Northern District of Illinois has penned many orders addressing "basic pleading errors committed by defendants' lawyers who have failed to conform to the clear directives—or to the basic thrust—of the Federal Rules of Civil Procedure."  State Farm Mut. Auto. Ins. Co. v. Riley, 199 F.R.D. 276, 277 (N.D. Ill. 2001).  One of these errors is defense counsel demanding "strict proof," which he notes is impermissible under the Federal Rules of Civil Procedure. 

Essentially, case law interpreting the Rules of Civil Procedure indicates the demands for "strict proof" in responsive pleadings are improper, unnecessary, and of no real effect.


If the Rules don't require it and case law doesn't demand it, then why do attorneys keep doing it? 

I can't really say why attorneys keep injecting their demands for "strict proof" into their responsive pleadings.  Maybe it looks good to clients?  Maybe its because the attorney saw it in an answer one day and thought, like I first did, that it was necessary to hold the plaintiff to his case.  Or, maybe, it is because the attorney does not know why they do the things they do. 

If that is the case, perhaps the appearance of demands for "strict proof" are red flags requiring more scrutiny.  Think of a demand for "strict proof" as being akin to Van Halen's brown M&M clause.