Interrogatories & Depositions Civil Litigation I - Unit 6

Text Chapters 11 and 12

Interrogatories

A party who makes some demand or request on another party or who actively seeks some action by the court. A party who makes some demand or request on another party or who actively seeks some action by the court. Proponent

A person who gives testimony under oath in an affidavit, in an oral deposition, in a written deposition or in court. A person who gives testimony under oath in an affidavit, in an oral deposition, in a written deposition or in court. Deponent

In federal court, parties are allowed to serve only twenty-five interrogatories on each other. In federal court, parties are allowed to serve only twenty-five interrogatories on each other. A party may move the court for leave (permission) to serve more. A party may move the court for leave (permission) to serve more. Number

Rule 26(d) precludes parties from serving interrogatories until they have participated in a discovery planning meeting. Rule 26(d) precludes parties from serving interrogatories until they have participated in a discovery planning meeting. In state court, a plaintiff may serve interrogatories with the complaint – and a defendant can serve interrogatories even before an answer is due. In state court, a plaintiff may serve interrogatories with the complaint – and a defendant can serve interrogatories even before an answer is due. Timing

Each interrogatory must be separately numbered. Each interrogatory must be separately numbered. Each subpart counts as an individual interrogatory. Each subpart counts as an individual interrogatory. Format

For each witness statement obtained by the defendant, state the following: For each witness statement obtained by the defendant, state the following: Example of Interrogatory

a) The name and address of the person who interviewed the witness. a) The name and address of the person who interviewed the witness.

b) The date on which the statement was obtained. b) The date on which the statement was obtained.

c) The means by which the statement was recorded. c) The means by which the statement was recorded.

d) The name and address of each person who was present when the statement was obtained. d) The name and address of each person who was present when the statement was obtained.

e) Whether the witness has been given a copy of his or her statement. e) Whether the witness has been given a copy of his or her statement.

Describe each witness statement you have obtained by identifying fully the date on which it was obtained, the identity of the interviewer, how the statement was recorded, and whether the witness has been given a copy. Describe each witness statement you have obtained by identifying fully the date on which it was obtained, the identity of the interviewer, how the statement was recorded, and whether the witness has been given a copy. Better Example

1) Do you know of any witnesses to the accident? 2) If so, state the name and address of each witness. Conserve

State the name and address of all witnesses to the accident. State the name and address of all witnesses to the accident. Conserve

If a plaintiff is claiming $10,000 in damages for his damaged automobile, what should the defendant seek to find out through interrogatories re: plaintiff’s claim for damages? If a plaintiff is claiming $10,000 in damages for his damaged automobile, what should the defendant seek to find out through interrogatories re: plaintiff’s claim for damages? Let’s brainstorm together. Let’s brainstorm together.

Original cost of the automobile Original cost of the automobile When and from whom it was purchased When and from whom it was purchased Whether it can be repaired or has to be replaced Whether it can be repaired or has to be replaced Estimated or actual cost of repair Estimated or actual cost of repair Availability of supporting documentation, such as repair bills Availability of supporting documentation, such as repair bills

Depositions

Oral Deposition Procedure in which a party or non-party may be interrogated about matters relevant to a pending action.

Purposes A deposition may be used to preserve testimony or to discover evidence or both.

Rights of Parties Every party has a right to attend all depositions and to be represented by an attorney.

Non-Party Has a right to be represented by an attorney at the deposition.

Q&A Deposition is a question and answer format with cross examination. Questions and answers are recorded electronically and transcribed by a court reporter.

Testamentary When a deposition is taken to preserve the testimony of a person who cannot be available to testify at trial, it is called a testamentary deposition.

Discovery When a deposition is taken to find out what a deponent knows, it is a discovery deposition.

Lawyer Role Taking an oral deposition is tantamount to eliciting testimony in court. The transcripts may be used at trial as evidence. As a result, only lawyers may take depositions and make objections.

Paralegal Role Assist attorney in preparation Attend depositions to help with evidence Prepare reports/summaries of depositions May prepare clients and witnesses for their deposition

Paralegal Role - Logistics Schedule deposition Prepare the notice Make arrangements for the location of the deposition Arrange for a court reporter

Scheduling A party may take the deposition of any other party or nonparty without first obtaining permission from the court. A party begins the process by serving a notice for taking the deposition. The notice must state the name and address of the deponent and the date, time and place at which the deposition will be taken.

Consensus In many communities, the proponent contacts the other parties’ lawyers before serving the notice to get a consensus for a mutually convenient time.

Procedure Deposition begins with the court reporter administering the oath to the deponent. The court reporter is required to note the names of all persons in attendance and which parties are represented.

Documents At the request of a party, any documents and things produced for inspection during a deposition must be marked for identification and attached to the deposition transcript.

Scope of Examination Broader than at trial. Examination may encompass any matter that reasonably could lead to the discovery of admissible evidence. Tendency to allow almost any question, as long as questioning is not abusive.

Narrative Summary Informational; not for use at trial. Information categorized and put into paragraphs. Not necessarily in order questions were asked. Page numbers do not have to be used.

Guidelines Tell the truth Be sincere Listen carefully Take time Answer only the question Do not guess

Guidelines Be respectful Answer out loud Do no show anger or impatience Keep opinions reasonable Avoid phrases like “to be honest with you”

Discussion Why is it important to prepare a client or witness for a deposition? Are you permitted to tell the client/witness what they should say?

Discussion What are common problems encountered in depositions?

Discussion What is the primary role of the paralegal in the deposition process?