The Trial Practice Tips Weblog

Depositions Before Interrogatories?

Can a well-crafted set of interrogatories ever hurt your case?

In many complex cases, interrogatories served early in the case can educate your opponents about your case strategies at a time when you'd rather keep them in the dark. Moreover, when you serve the interrogatories on your opponents, you are requiring them to get up to speed on their own case strategies, perhaps sooner than they would have done so otherwise.

For these reasons, some lawyers like to depose the key witnesses before serving any but the most basic interrogatories. The idea is that you will deprive these witnesses (and your opposing lawyers) from some of the early-stage strategizing that often allows them to rehearse their answers in advance. With an element of surprise, you're more likely to get spontaneous and unrehearsed admissions.

Try it sometime and see if it works for you: depositions before interrogatories.

Source: Kenneth R. Berman, "Q: Is This Any Way to Write an Interrogatory? A: You Bet It Is," from Litigation magazine, reprinted in The Litigation Manual: Pretrial (ABA).

Use Your Opponent's Interrogatory Answers at Trial

Don't think of interrogatory answers as something to be forgotten after the initial stages of discovery are complete. Interrogatory answers often contain admissions that you can introduce into evidence at trial.

Part of every trial notebook is an "interrogatory" section (or more generally, a place for "admissions"). As you prepare for trial, go through your opponent's interrogatory answers and copy anything you might want to use later. These go into your trial notebook.

In most jurisdictions, interrogatory answers can be introduced by reading them to the jury.  A party's interrogatory's answers can also be used to impeach the party's in-court testimony. As an admission, the answers will generally be an exception to the hearsay rule. But the answer will not be completely "binding" on the party; the jury will still be given a chance to weigh the in-court testimony against the interrogatory answer.

Partial source: Model Interrogatories §121 , by Kevin R. Culhane.

Related posts:

1. "A Method of Organizing a Trial Notebook"

2."Trial Notebooks: An Alternative Method"

Practice Tip: Don't Overdo the Objections to Your Opponent's Discovery

When you file objections to your opponent's discovery, don't get carried away. Never object to every interrogatory or production request.

It's an obvious tip, but there are lawyers who do object to every interrogatory or production request. These objection-crazy lawyers are offering their opponents a gift: A chance to get in front of the judge and say, "Not only did he make frivolous objections to Interrogatories 1, 2 and 3, but he objected to every one of my discovery requests."

Sound unlikely? I've been able to say something along these lines quite a few times in my career, and it never turns out badly for me.

If you're going to make an objection, don't do it unless you have good reason to believe you are in the right. Otherwise, you're just offering your opponent a chance to paint you as an obstructionist--and you'll probably have to answer the discovery anyway.

A "Bounty" of Tech-Related Practice Tips

The March, 2009, issue of the ABA's Law Practice Magazine, which is online and free to all, is celebrating "the spirit of ABA TECHSHOW by giving you a bounty of legal technology tips."

Some of the articles this month include:

• 10 Ways to Stretch Your Research Dollars: How to Get the Facts on a Dime

• Tips and Tools for Easy Collaboration: Six Ways to Work Better with Others Online

• Steps Along the Paperless Path: Keys to a Successful Scanning Implementation

• E-Discovery Tips for Everyday Cases

There are other articles, too, all worth a look. Link from Jim Calloway's Law Practice Tips and Celia C. Elwell, RP.

Production from Non-Parties and Records Depositions: Some Generalities

Here are some broad principles that will apply to many situations involving production from non-parties:

• A non-party person or entity will be compelled to produce documents and appear for a deposition with a subpoena, not a notice;
• For deposition subpoenas in Illinois, see generally SCR 204(a). The procedure can be summarized as follows--

--Obtain a subpoena from the court clerk;
--Prepare the subpoena;
--Prepare a deposition notice;
--Serve the subpoena and the notice on the non-party deponent;
--Serve the notice and a copy of the subpoena on the parties to the case.

• If the entity that has the records objects to producing them, the entity may file some variation of a motion to quash the subpoena; parties to the case may also have objections to the subpoena that will need to be litigated;
• Once you receive the records you are seeking, you might decide you don't need a deposition at all. In Illinois, this possibility is provided for in SCR 204(a)(4). However, you will often want to depose a records custodian to confirm that you've received everything you asked for and to ask questions establishing a foundation for the admission of the records at trial; 
• At the deposition, proceed as follows--

--Name
--Employer
--Job title
--Job duties

--Familiarity with entity's procedures for preparing and keeping records

--Subpoena; mark it and have the witness identify it
--Ask the witness to identify the documents produced pursuant to
     the subpoena; mark the exhibits
--Determine whether the witness brought all the documents requested by the subpoena

--For particular documents, have the witness lay whatever foundation you think you'll need to get the documents admitted at trial, e.g., by establishing the following points--

--Who prepared the document?
--Was the document prepared pursuant to the creator's job duties?
--Were the documents prepared at or near the time of the matters recorded therein?
--Did the person who prepared the documents have personal knowledge of the facts reported therein?
--Were the documents prepared in the regular course of the entity's business?
--Were the documents retained pursuant to the entity's regular business procedures and in the regular course of the entity's business?

• Before or after questioning, seek to obtain a stipulation from opposing counsel as to the admissibility of the documents at trial; you can decide whether this makes the deposition itself unnecessary.

For more about third-party production and deposition procedures in Illinois, see Illinois Pretrial Practice, Duncan-Brice, Flannery, Kelly and Owens (James Publishing). 

Related posts:

1. "Admissibility of Medical Records as Business Records in Illinois."
2. "Police Accident Reports and the Business Records Rule."
3. "Proving Up Medical Bills #1."
4. "Proving Up Medical Bills #2."
5. "Proving Up Medical Bills #3."

Discovery Tip: Using Model Interrogatories to Fend Off Objections to Discovery

In many jurisdictions, you can find court-approved interrogatories, such as model interrogatories for motor vehicle, medical malpractice, and divorce cases approved by the Illinois Supreme Court.

Even if your case doesn't fall under one of the standard categories, you can still use the model interrogatories for drafting your own discovery. Not only does the use of a form make drafting discovery easier, but it will also help you later in fending off objections. The closer your discovery is to a court-approved form, the easier it will be to argue that your opponent's objection is not well-taken.

So powerful is the argument that "the interrogatory my opposing counsel is objecting to is identical to one approved by the courts," that it often makes sense to look at court-approved interrogatories when preparing to argue objections, even if you didn't use the model interrogatories in the first place.

Related posts:

1. "A Tip for Drafting Interrogatories: Less Can Be More."

2. "Sample Interrogatory: Persons with Knowledge."

Experts in Illinois: The Duty to Disclose Begins with an Interrogatory

Question: You represent the plaintiff in a case in which the trial court has entered a scheduling order requiring you to disclose your experts by a certain date. You do so, in addition to sending the other side a report. However, the report fails to include all the expert's opinions. Assuming the defendant never filed a Rule 213 expert interrogatory, what is going to happen to those extra, undisclosed opinions at trial? Will they be excluded, or not?

Answer: In Heriford v. Dawson, the Fourth District Appellate Court ruled that the undisclosed opinions can come in. Reversing the trial court, the Fourth District stated as follows--

[W]e find that an interrogatory is the trigger for a plaintiff’s duty to disclose the nature and extent of her expert’s opinion. The decision of the trial court, to bar evidence of damages without engaging in the application of its discretionary authority and thereafter award a directed verdict in favor of Moore, is in error. We, therefore, reverse the judgment awarded to Moore.

Heriford v. Dawson is also discussed in this month's Trial Briefs, the newsletter of the ISBA's Section on Civil Practice and Procedure. See "'Tactical gamesmanship' and trial practice: Can it be good advocacy?" by Patrick M. Kinally (ISBA section members only). While critical of the Heriford ruling, Kinally calls it "a must read for anyone trying civil cases."

A Litigation Weblog with an Attitude

Stewart Weltman, formerly a partner at Cohen Milstein Hausfeld & Toll P.L.L.C. and now the owner of Weltman Law Firm, has a new weblog: Lean and Mean Litigation Blog.

A representative post is titled "Another Reason Why You Shouldn't Play Games When Producing Documents," and contains this tip--

Don't redact or withhold on relevancy grounds - it is a dangerous metaphysical exercise for experienced trial lawyers and from my experience it is usually performed by young associates who - to say the  least - don't always have a "world" view. So, unless lightening strikes and the information deemed not relevant is information that could be damaging to your client for some reason not related to the case [very unlikely] don't redact on relevancy grounds.

Add it to your RSS reader.

Metadata Update

A number of jurisdictions have issued guidance on the ethics of looking at metadata. These include New York, Florida, Alabama, Arizona, the District of Columbia, Maryland, and Pennsylvania. 

For a summary of the current thinking about metadata, see "Where Do the Footprints of Metadata Lead? Document data mining vexes lawyers and state bar associations," by Marcia Coyle at Law.com.

Links to most of my prior posts on metadata can be found at Legal Underground at the end of the post "New ABA Ethics Opinion on Metadata."

Electronic Discovery: Reading Up on the Federal Rules

Here are some quick links about electronic discovery and the federal rules, collected from a couple of Google searches while I tried to answer a somewhat-unrelated question--

• For those who want to refresh their recollection of the '06 amendments to the federal rules: "Quick Guide to Electronic Discovery Rules"
• For those who want a second concise guide: "E-Discovery Amendments to the Federal Rules"
• For those who want an up-to-date collection of links to state-law versions of e-discovery rules: "Current Listing of States That Have Enacted E-Discovery Rules"
• For e-discovery junkies who want a book length treatment of the federal amendments: "The Discovery Revolution: A Guide to the E-Discovery Amendments to the Federal Rules of Civil Procedure"
• For e-discovery junkies with short attention spans who'd prefer a pocket-size guide: "E-Discovery and the Federal Rules of Civil Procedure: A Pocket Guide"
• For anyone whose particular research focus is emails and recent rulings under the new federal rules: "The New Federal Rules of Civil Procedure: IT Obligations for Emails" (pdf)

Of course, while all of these links are interesting and useful, there's no substitute for actually reading the rules. Remember: do it early, and do it often!