The Interrogatory: Less is More

Why are so many lawyers addicted to the written question in discovery? Many lawyers inundate defendants with 100’s of questions all containing 5 subparts with verbiage that even the most ardent wordsmith would have trouble understanding. Does this really get you the key information, name, or document that the defense desperately wants to keep from you, or does it allow the key information to be lost in a morass of incoherent requests and motions to compel?

What must always be remembered is the interrogatory is essentially answered by attorneys. Objections are made, privileges are asserted all with the goal of hiding the ball. Why not reduce these questions to minimum information with simple specific requests. This puts the burden on the defense to be more transparent in refusing to comply.

In many jurisdictions, the Courts mandate form interrogatories with a limited number of supplemental Interrogatories. This makes the decision of what to ask even more important. Rather than just ask around and get the “same old” questions from other lawyers, take the time to think to yourself, is this question better in a written form or in a deposition. Do you want the answer shaped by an attorney or would you rather ask the questions to a sworn witness face to face where they feel the pressure of their oath and need to be truthful?

To illustrate, in medical cases the existence and discovery of incident reports are key, and quite often depending on how they are framed will dictate their discoverability. When initially requested through the written question, the lawyer will object and claim multiple privileges including peer review. Now the motion to compel these reports is dictated by the privilege objection, even though it may not apply.  We have allowed the defense to frame the issue prior to any testimony being obtained.

However, if you ask the question of the witness, are there incident reports prepared, there may be an objection but should be no instruction not to answer. Once you are told reports exist, the follow up of their purpose, why they are done, what is the basis for the reports, what is contained within the report, how are they used, is there a policy mandating their completion, are there any laws mandating their completion all begin to frame the incident report as something other than peer review. By asking the questions at a deposition you can destroy any and all objections and this testimony can be an exhibit in a renewed demand for same as well as the ultimate motion to compel.

There are a number of topics that should be addressed by Interrogatories. Names of witnesses, experts, certain documents, policies, and pictures all must be requested given the obligation to amend the answers as information is obtained by the defendant.
You also need to serve written questions on topics such as potential third-party responsibility, insurance information, management companies, and any other defenses you need to address. Be as distinct and specific as possible with a small number of questions and serve them with your complaint.

At the end of the day, know what you want and how you want to get it. Be specific and brief with written Interrogatories and set the defense up with depositions to shut down the defenses and get the documents you need.