No Attorney’s Fee Provision? Use RFAs Instead.

As a general matter, the prevailing party in a lawsuit is not entitled to recovery of his attorney’s fees unless there is a written contract that contains an attorney’s fees provision. When there is no such basis for attorney’s fees, attorneys often forget that requests for admissions (RFAs) are a simple, cost-effective means to recover attorney’s fees through cost-of-proof sanctions.

An RFA requires the responding party to admit factual matters, matters in controversy, opinions relating to a fact and even legal conclusions. Through RFAs, parties may be required to admit any of the following: significant dates, the existence of conditions, ownership of property, whether certain conduct was negligent or the value of property.

An RFA may even pertain to matters the admission of which would require the responding party to capitulate. For example, a party could request admission of the following: 1. You have no grounds to prosecute (or defend) this lawsuit; 2. Your damages are speculative; 3. Your cause of action for breach of professional negligence is time barred; or 4. You ran the red light before the accident. You get the idea.

In practice, attorneys prepare the responses to RFAs for their clients, who must verify the responses under penalty of perjury. Attorneys usually deny matters that their clients should admit, rather than concede any ground in the litigation. This creates opportunity for the wise.

A responding party that unreasonably denies an RFA must pay the costs, including attorney’s fees, incurred by the requesting party in proving the denied matter. Costs incurred prior to the denial of the RFA are not recoverable, so it’s better to propound your RFAs sooner rather than later.

Bottom line: Propounding simple, well-crafted RFAs forces your adversary to either admit harmful matters or deny them and risk cost-of-proof sanctions. I can’t think of a better win-win situation for you and your client.