• Jim Ferraro

Statements of Fact as Tactical Tools


By the time I got to this point, where I had narrowed down the potential damaging fungicides to five (including Benlate) – as I related in my last post – I was already two years into discovery and had a boatload of time and money sunk into this case.


I spent endless days and nights wracking my brain, trying to figure out how I was going to prove it was Benlate that had been coming from the damn tractor with the thirty-six-foot sprayer attachment. There was no chance Chaffin would knowingly admit it or that the worker driving the tractor would remember. Too much time had passed, and too much was at stake.


It occurred to me about a year before trial that the only solid chance we had left to save the case was to use requests for admissions. These are simply statements of fact that either side prepares and that the opposing party must admit or deny. You design your own requests for admissions, and the opposing party has thirty days to reply. The answers provided by them become absolute irrefutable facts that can be used against them at trial. The only problem is that, just like interrogatories, the answering party has 30 days to reflect and think about their response. For this reason, I had to be very tactical about when I would send the requests. I needed to catch the other side off guard.


It was during a particularly tumultuous deposition, where both DuPont’s and Pine Island’s attorneys were being so obstructive and obstinate that they were instructing their clients not to answer many of my questions (refusing even to provide us with their business address!), that the lights went on in my head.


This was the perfect time to prepare and serve requests for admissions. It was a year before trial, and both defendants were clearly in total denial mode about every facet of the case. They were putting up brick walls at every turn, thinking that would cause me to cave. With so much time left before the trial, neither defendant appeared especially focused on the big picture—certainly not as I was, or as they should have been at the time.


Our only hope was that they would take their current denial mentality to the next level. Maybe they would neglect to think things through properly and simply deny my requests for admissions. If they were dumb enough to do that, they’d be stuck holding the position that none of the other products came out of the tractor with the 36-foot sprayer attachment on the day in question. That position would be binding.


In other words, the one who makes an admission cannot suddenly change their mind or say, “That’s not what I meant.” It is what it is, and it’s done. It becomes an absolute fact.


It was a risk, but it was definitely worth a shot.


“What the hell?” I thought.


So I wrote up 65 requests for admissions, each one a single line asking the defendants to:

“admit or deny they were using Benlate on or about November 1 or 2, 1989”;

“admit or deny they were using Trigard on or about November 1 or 2, 1989”;

“admit or deny they were using Bravo on or about November 1 or 2, 1989”;

and so on until I had individually listed all 65 chemicals the farm had had on hand. I put the requests for admissions in a package, crossed my fingers, and mailed it out.


Waiting those 30 days for their responses was like waiting for a jury verdict. I was on pins and needles, hoping and praying for denials across the board. If they all came back as admissions, we were screwed. While you can use the answers that are favorable to you against the opponent, you can also throw the ones that don’t work for you in the garbage. But even if the responses were not helpful and I threw them all away, I didn’t know how else I could prove it was Benlate and not any of those other 64 agents. To pull this off, our only hope was to get denials across the board.

Thirty long and painful days of waiting later, we received their answers.

They denied everything.


Everything!


I turned to my team and said, “Holy shit. Look at this. This is fucking awesome. They did it. They fell right into our trap!”


This was a huge break for us. As far as litigation went, this was a great—albeit lucky—move.


I mean very lucky.


It was also a game-changer. It was one of those moments when I had to take a shot—be all in or get the hell out.


Thankfully, it worked. They had no idea what they’d done, and I had no intention of tipping them off until we got to trial.


I will explore this more in my next post.


I’d love to hear from you. Have you ever been in a situation where you planned for the worst, and luck was on your side, giving you the answers you needed to move ahead? Thank you for sharing.