My current favorite interrogatory

“Just what,” none of you have asked, “does a paralegal do?” I have no idea. I know what I do, but “paralegal” is a gloriously underspecified job title. I can make a stab a what a paralegal working in personal injury litigation or in workers compensation does, but even that can vary wildly.

In my case, a distressing percentage of my time is taken up drafting answers to interrogatories. “Interrogatory” is simply lawyer-speak for “question,” in this case in writing with the answers also in writing.

Ask any litigator about interrogatories and he will adopt a pious countenance and talk about how important they are. You might expect, therefore, that they would be carefully crafted literary efforts. In many jurisdictions the number of interrogatories you can ask is limited, so you would expect that they are chosen with particular care, customized to each case so as to maximize their effectiveness.

You would be disappointed in your expectations. In practice, at least in personal injury, the lawyer typically has his secretary slap the correct case caption on a set of boilerplate interrogatories and ship it out the door. And while these might have been carefully crafted at one time, the boilerplate tends to get tweaked over the course of years until it reads like a bad Wikipedia article.

Here is my current favorite. This is a real interrogatory, quoted verbatim. We represent the plaintiff in a traffic accident case:

Please state whether you had any conversation with the Defendant and any other person at the scene of the subject occurrence or thereafter, and if so, state the substance of each such conversation and the name, address, and telephone number of each individual present during the conversation.

This is a lovely mishmash of poor word choice, ambiguous construction, and utter insanity. A conversation with “the Defendant and any other person”? So if the plaintiff had a conversation with the defendant alone, the answer would be ‘No’? They meant “the Defendant or any other person”.  This is the smallest of the problems.  What does the prepositional phrase “at the scene of the subject occurrence” modify? Does it modify “had any conversation” or “any other person”? If that were the end of the clause, I would take it to modify “any other person”. But then there is “or thereafter”. “Thereafter” refers to time, so it must be coordinated with some other time element. The only possibility is “at the scene of the subject occurrence”. Therefore “at the scene of the subject occurrence or thereafter” is a single modifier. This natural interpretation now is that it modifies “had any conversation”. The question is asking about every single conversation the plaintiff has had since the accident with any person on any topic, demanding the name, address and telephone number of every person the plaintiff has spoken with.

The sensible question the defense lawyer meant to ask is if the plaintiff had any conversations with the defendant or with any eyewitnesses to the accident, whether said conversations were at the scene of the accident or at some later time.

How to answer the actual interrogatory? Object to it on the grounds of being vague and over-broad, then “without waiving this objection” answer the question they meant to ask. *sigh*

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Richard Hershberger is a paralegal working in Maryland. When he isn't doing whatever it is that paralegals do, or taking his daughters to Girl Scouts, he is dedicated to the collection and analysis of useless and unremunerative information.

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21 thoughts on “My current favorite interrogatory

  1. Ah, it’s Monday. I have some of this on my plate today, too.

    And since this is a special interrogatory, you’re going to object to it for containing multiple and nested subparts (unless you’re in Federal Court, in which case WTF is an auto-versus-auto case doing in Federal court in the first place) as well as the overbreadth, and various privilege issues.

    So if you look at this and think, “There has got to be a better way,” of course there is. I’ve come around to thinking that Federal practice is quite a bit better than this: interrogatories are both more circumscribed in their use and number (none of those declarations to pop the limits), no restriction on subparts in the interrogatories, overt guidance to interpret the interrogatory broadly OR ELSE, give all your documents and we mean ALL your documents to the other party without being asked to at the beginning of the case OR ELSE, and, most of all, a strong emphasis in the rules on focusing the search for facts through the use of depositions. Interrogatory answers are rarely useful anyway.

    Get the other party in your office, talking, on camera and in front of a court reporter. That’s the best way to get evidence from the other side.

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    • Auto accident cases can end up in Federal Court. Diversity jurisdiction is the most obvious way, but there are others. Here in Maryland we have parts of the state (e.g. around Fort Meade) that are just lousy with black unmarked SUVs parked around and about. If one of them hits you, you can sue (the feds having generously waived sovereign immunity for such matters) but it has to be in Federal Court. Yes, this is the voice of experience. And no one is happy about it. The last thing a PI lawyer wants is to have to figure out the federal rules, the defense lawyers didn’t bust their butts to get hired by the Department of Justice to defend traffic accidents, and the judge certainly didn’t bust his butt even harder to get appointed to the federal bench to try the damn things. The good news is that (based on my experience of one case) everyone was eager to settle.

      As for depositions, this is in the lower-level trial court: no jury, relaxed rules of evidence, and only limited discovery of interrogatories but no depositions: quick and dirty trials, usually lasting less than two hours.

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        • I have only limited experience with no-fault jurisdictions, but my impression is that it moves the argument from liability to damages. In actual practice, that is where most of the argument is anyway. Even if we consider only cases that go to trial, in only a small fraction is liability a serious issue. If we consider every case we take, these are a tiny fraction.

          Since arguments over liability are only a small problem, I cannot help but suspect that these are not the real reason for no-fault insurance. Qui bono? The insurance industry is the obvious candidate, via some combination of limiting your medical care and cutting out non-economic damages. Which is to say, I question the notion that no-fault is for my benefit.

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    • I have, in the recent past, been subject to such an interrogatory. My lawyer gave it to me with suggested answers. (All but two or three which, apparently, required ‘real’ answers involving the lawyer can’t answer for us).

      What I found interesting was, aside from those two or three questions, the vast bulk of suggested responses boil down to “Fish you, we don’t have to answer that because [legal reasons]”.

      I might be reading it wrong, but it appears that several questions were entirely fishing, several were completely irrelevant, and at least two were attempts to make me stipulate the other side’s entire case.

      My favorite question not only involved stipulating the other side’s entire case, but also asked for for me to use my imagination to sum up all the damages they could possibly have incurred. (Seriously, it included asking me to list all the ways in which I could have possibly damaged the plaintiff. I guess in case I had a good idea that hadn’t occurred to them, I suppose).

      I did enjoy reading 20 variations of polite “Fish you, we don’t have to answer that”. Does make me wonder how much of court cases is one lawyer trying to trick someone into making a binding statement he doesn’t have to, while the other lawyer tries to prevent it.

      I’ve got pages and pages of questions, the bulk of which are apparently questions I don’t have to answer. The person writing the questions knows I don’t. My lawyer knows I don’t. The only reason to submit these questions to me seems to be entirely on the off chance I don’t have a lawyer and might answer them, because I’m not a lawyer, and thus somehow use them against me.

      I can’t even figure out the reasons behind some of the questions.It’d be like asking an accused robber to list all the times he’s been victim of a crime. What’s that got to do with the robbery in question?

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  2. That’s a remarkably hideous interrogatory. I don’t mind, so much, the prepositional chains and all, but to the point where it’s that unclear? ayiyiyi.

    Honestly thought lawyers were supposed to know how to craft precise language… I suppose in this case they’re depending on professional ethics to get folks to answer the way the question should be written, rather than how it actually is written.

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    • Not ethics: incentives. Suppose I drafted the answers that run in my head. In this case, the real question is about any conversation between the drivers. Either there was such a conversation or there wasn’t, and if there was it either will help us or not. (It is unlikely to hurt us. The conversation everyone has in mind is the other driver saying “Oh, I’m so sorry! This was entirely my fault. I had the red light but I was too busy texting to notice.”) If there was no such conversation, or there was but it was benign (“You OK? Have you called 911 or shall I?”) there is nothing to be gained by a snarky answer, and it could come back to bite you. If there was such a conversation, the worst thing would be to have it precluded from trial. How could that happen? If the other side objects on the basis of its not being mentioned in these answers to interrogatories, and the judge decides that the answer that was given is smartass. So we answer the question the other side meant to ask, and perhaps also object to the question that was actually asked if necessary to cover our butts.

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  3. I spend a fair bit of time responding to discovery as a associate at my firm.

    My personal theory is that various firms have policies to be as annoying and/or as abusive as possible in Interrogatories. A lot of defense firms are big and/or bill by the hour. They know they are going up against a lot of plaintiff’s lawyers at small firms and/or possibly solos. The small firms (working on contingency) obviously have fewer resources. The term seems to be drowning the opposition in discovery.

    I’ve seen some Interrogatories of highly questionable English. I’ve also seen firms go well over the legally mandated 35 maximum and just use a boiler plate declaration to justify their exceeding of the limit.

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      • Yes, at least in this case. This is a small (not in the “small claims” sense, but under $15K) case. In this case the defense is outside counsel, but I see similar things when it is staff counsel, which most definitely does not have an incentive to jack up the hours. The problem is that this crap interrogatory worked its way into their boilerplate, and there has never been any incentive to change it.

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      • We’ve been in a bit of a Schrodinger litigation issue recently and our experience is the opposite: our attorney has specifically told us that at this point in time to not send him more documents, etc, relevant to “the case”, which he’ll be compelled to read and do lawyer-type things with, since we don’t know what “the case” is going to actually be. I found that refreshing, myself. And reassuring. (Given the bill rate!)

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