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Should You Stipulate?

Sometimes strength comes from seeming weakness. A potentially powerful tool for a civil litigant is to stipulate or admit to certain facts. But knowing when to stipulate is an art.

Carefully tailored admissions or offers to stipulate can be strong offensive tools. Under California law, a party in a civil case may admit to particular facts during depositions, through responses to requests for admission or to interrogatories, in the answer, and in other pleadings.

In both civil and criminal cases, counsel may unilaterally stipulate to particular facts. Counsel may also stipulate to particular testimony so that a witness doesn’t have to testify; in this circumstance, the only thing agreed on is what the witness would say were he or she in court, with the witness’s credibility and the import of his or her testimony remaining in dispute.

Stipulations are usually arranged between attorneys before trial, then cleared with the trial judge. Local rules may regulate procedures. See, e.g., Los Angeles Ct R 3.125 (offers of stipulation to be made outside of jurors’ hearing). If counsel’s request for a stipulation before trial is rejected, there’s still time to subpoena witnesses to testify.

An offer to stipulate to certain damaging facts may surprise and please an eager opposing counsel who doesn’t realize that by accepting the offer he or she may be left with the sensational parts of the case gone and only dry issues left to try. Conversely, be cautious in making your own requests for admission—a number of admissions may leave you with little evidence of interest to try before the jury.

The following are some reasons to stipulate:

  • To save time and make for a smoother presentation;
  • To spare routine and relatively unimportant witnesses (e.g., records custodians) from having to testify;
  • To minimize the impact of damaging testimony or facts (e.g., when liability is obvious, a stipulation will limit the damaging testimony about it); and
  • To foreclose testimony on an issue by making it “undisputed.”

The following are some reasons not to stipulate:

  • To force your opponent to prove his or her case in its entirety; and
  • To preserve the dramatic impact in presenting your own proof.

Be sure to clarify with opposing counsel and the judge what stipulated information is undisputed and what remains in dispute. An offer to stipulate to anything in front of the jury is inappropriate and is likely to be viewed as an affront to the court; it is important for the judge to inform the jury of the effect of the stipulation.

For complete coverage of everything related to stipulations, turn to CEB’s Effective Introduction of Evidence in California, chap 51. On requests for admission, check out CEB’s California Civil Discovery Practice, chap 9.

© The Regents of the University of California, 2012. Unauthorized use and/or duplication of this material without express and written permission from this blog’s author and/or owner is strictly prohibited.

7 Responses

  1. May 16, 2012

    Julie:

    Thank you for posting this comprehensive article. In reading it, I learned several things. At a recent deposition, I refused an attorney’s offer to stipulate to certain facts. I wanted to hear his client admit them. While not sure if this will make any difference in the forthcoming summary judgment motion and my response, I felt that his client’s testimony, as opposed to his own stipulation, might make a difference. I’d like to hear what you and other group members think about this.

    Thanks again for posting this valuable article.

    Howard Lederman

    • Thanks for your comment, Howard! I too am interested in what other practitioners think about your decision. I suggest that you post this query on Continuing Education of the Bar (CEB)’s LinkedIn group (where I also posted this blog post) to see what the group members think of it.

  2. Yes, often times it helps to stipulate, such as stipulate to status of pleadings to avoid unnecessary motions. But then attorneys who dont see the expedient nature of stipulations force motions, appearances, time and expense. Of course it is because they can then bill more! What a pity

  3. Reblogged this on legallexicondotcom and commented:
    Sometimes strength comes from seeming weakness. A potentially powerful tool for a civil litigant is to stipulate or admit to certain facts. But knowing when to stipulate is an art.

  4. […] Stipulations (but see Magana Cathcart McCarthy v CB Richard Ellis, Inc. (2009) 174 CA4th 106, 121 (stipulations may not be used as substitute for summary judgment)); […]

  5. […] focus the jurors’ attention on the real issues of the case is for the parties to enter into stipulations that reduce the number of factual or legal issues requiring resolution. Also consider evidentiary […]

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