A Cynic's Guide to Civil Litigation - Chapter 9

I bet you have just been dying to get to this section! Nah. You are probably bored out of your skull by now. But, we must perservere and champion our cause because, basically, no one else will. So......

There are things that are done in civil cases before trial that are intended to get you information. We don’t do “trial by ambush” unless you are an idiot or do not work up your case and you set yourself up to be ambushed. We try our best to get as much information as possible before we stand in front of a jury or a judge and make our pitch. If we don’t, then we are surprised by something that can and usually will destroy our case.

We do “discovery” to discover everything we can about Johnny Doe. If we blow it, it’s our fault. Nobody else to blame.

Discovery is highly regulated in every state and in federal court. Sometimes there are rules that require “automatic” discovery. That means each side must voluntarily send information that is usually identified on a list connected to a rule or a case. Once again, though, do not expect Johnny Doe will be generous. You can expect Johnny Doe will try to limit what they send you. Later, if you file a “motion” to compel, they will defend your claim by arguing it is not on the list, ` or for some other reason.

In any event, the rules will provide you are entitled in certain circumstances to send Johnny Doe discovery requests, which are required to be answered within a certain time. The rules will also provide, most likely, you can depose witnesses and parties (plaintiffs and defendants, etc.) , (ask questions in person to someone who is under oath),

Let’s talk about each discovery option you may have and the logic behind the order of what you do.

Interrogatories

Interrogatories are written questions you send Johnny Doe that must be answered under oath and by a certain date. There are usually limitations on the number of questions you can ask and when you can ask the questions, but generally, you get a chance to ask what Johnny Doe is going to say at trial, is thinking, or going to do. In fact, I often ask, as directly as possible, what the person is going to say on the stand and what documents or records they are going to rely on. Also, interrogatories are served on a party to a civil action, whether it is a person or a thing like a corporation. You can’t force someone who is not part of the litigation to answer interrogatories unless you have a Court order compelling them to answer interrogatories.

Interrogatories are usually one of the first things you do in a civil case. Because they are answered under oath, you get to rely on them in the future and you can use them to contradict the witness who answered the questions at the witness’ deposition or at trial. You can also use an answer in a motion you file or some other pleading you file in the case.

You may also be allowed to ask questions about a document or a record that is important to your case, but you will have to attach the document to your written requests and refer to it in the question.

Understand though, you are trying to get as much information from Johnny Doe as possible whether it is good or bad. You do not want to be surprised by the bad, and the good will help you. Lawyers sometime called discovery “settling the dust”. Oftentimes I am asked a question by a client and my best response is “Wait until the dust settles and I’ll give you an answer.” If you learn something that is bad for your case, (do not expect your client to tell you everything), you will have the opportunity to lessen or destroy its impact later. If you do not know about it, you probably will not have a chance to affect it later. Have some courage. Don’t be a wimp. Ask the tough questions. Get the information and deal with it. If you stick your head in the sand, expect to get kicked in your ass.

If you are hit with interrogatories, answer them as directly as possible. Don’t offer free information because you think you answer needs an explanation. If Johnny Doe wants an explanation, they will ask for it. If they don’t… it is their fault for not asking, not yours. If you need more time to answer the interrogatories, ask for it. These types of courtesies are freely given in civil litigation simply because each side will need a break at some point, so we cut them a break and they grant us one. Just don’t abuse the courtesy.

Notice the tension here. If you are asking the questions, you want as much information as you can get. If you are answering the questions, you are trying to limit your responses as much as possible. In a perfect world, this tension would not exist. If you are looking for perfect, move “off-planet” and sue…if you can get jurisdiction.

The written questions you ask need to have something to do with the claims that have been made. While discovery is broad, meaning you can ask questions that could lead to information that is pertinent to the claims, it is not a “fishing expedition”. If you ask questions that have no likelihood of developing the litigation, you will face an objection and the Court may agree the question does not have to be answered. You may face an argument that a question designed to elicit an apparent obscure answer is intended to obtain information to be used to affect the witness’s credibility, but that is not a very strong argument.

Recognize the times! Social media is big. You should ask for information connected to all social media accounts including all payment accounts or online “wallets”. You will need that information later and you will be surprised at what people disclose from the comfort of their own home.

You can ask for criminal offender information, but you probably will get an objection. If it is important to your case, push it with a motion to force disclosure, but you will need a good reason for wanting the information.

Requests for Production of Documents

Requests for Production of Documents are written requests to disclose documents and records that are part of the case or may lead to other documents or records that are part of the case. These are usually sent with interrogatories as you use discovery to learn about the litigation.

You may hear these described as “RPDs”, “are-pee-dees”, as a shorthand. Interrogatories are sometimes referred to as “Ints”. Oftentimes described together as “Ints” and “RPDs”.

It is important that you do not limit your thinking. Documents are not limited to things that are formalized in, say, corporate life, like smoking policies, or computer policies, instruction manuals, manufacturing specs, contracts, agreements, or memos. Documents and records also mean anything that contains a communication like emails, texts, or other types of those records.

Electronic Records

Courts have acknowledged the electronic age and have rules that require the preservation of electronic records. There are rules that require you certify these records are preserved and available for transmission. There are rules that require the compilation of these records in a legible and readable format, to avoid manipulation of electronic files into unreadable metadata or computer language.

A Comment on Electronic Service and Filing

The deeper and more sophisticated courts have become in the electronic age, the greater number of options they offer for the electronic age. Many states, if not all by the time you are reading this, having electronic filing. This is great stuff! You can file stuff right from your computer and the system will serve it on Johnny Doe! When I started, we didn’t have copy machines. A secretary who was a perfect, fast typist was worth their weight in gold. Imagine, we would hand write everything, give the pages to the secretary who would type the pages with carbon copy paper between multiple sheets so it each page was produced multiple times. It was then stapled together, a cover letter and other papers attached, put in an envelope, stamped, and carted off to the mailbox. I have memories as a kid of 12 or 13 working with my father on a Saturday. I'd spent the day walking around a conference table picking up pages from all the stacks, putting them together, stapling them, putting them in envelopes, stamping the envelopes and stacking them for mailing on Monday. (There was no mail pickup on the weekends)

Now we “click” to file. (I remeber black and white TV. Now black and white films are art)

I am not going to tell you that electronic filing is the jizz. Like everything a state government does, the online filing system is crud. They hire the companies that give them the best price or are connected with a friend or family member and the result is far less than optimal. There is a large learning curve for these online systems.[1] They are clumsy systems. Not very intuitive at all. It is going to take you some time to get set up and your first filings may be rejected, but there are help lines you can use. Eventually you will get a handle on it, though it is a constant learning experience. You will need patience but get online and registered in the filing portal as soon as possible.

And…there are rules that allow for you to agree with Johnny Doe to serve everything electronically. You need to understand, there is a difference between serving something and filing something. Your rules may require you serve a motion or pleading or something you want to file with the court on Johnny Doe before you file in Court. This is usually to give Johnny Doe the opportunity to object or agree with what you are trying to do. If your rules allow you to use email to serve, then you can agree with Johnny Doe to email each other. Take advantage of this. When you file something online with the court, the system should serve it by email to Johnny Doe. Just make certain you have set your account up correctly.

Demanding Financial Records

Unless you have filed only to ask the court to force Johnny Doe to do something or to stop doing something…that is called a suit in equity, you will need to ask about money. Money is important because if you win money, Johnny Doe can always claim they can’t afford to pay. You will want to know if they have money, how much they are earning, where it comes from, and what it is used for. Also, if your case involves Johnny Doe taking your money, you will want to know what they did with it. You can ask for tax returns, bank account ledgers or statements, and records from all online payment processors or “wallets”. Think this through. Think of your situation. Have you sued a company? Have you sued a person? How far back do you need financials? Normally, you ask for five years up to the present, but every case is different and there may be a reason to go back further.

Demanding Medical Records

You can ask for medical records, but, unless health is an issue in the case, Johnny Doe will object. Check your rules. There will be rules dealing with the disclosure of medical records. You can ask Johnny Doe to sign a release or a HIPAA so that you can get the records. This is usually done by negotiation. They will not want to give you access to all health or medical records, only those that relate to the claims or defenses. If you cannot reach an agreement, then you will have to do it by motion and try to get a court order you can send to the medical care providers. If there is a claim for emotional distress or if there is a defense of emotional disability or distress, you will have a reason to ask for medical records. If they claim you caused a physical injury, or you claim you were injured, there will be a reason to ask. Once again, put some thought into it.

Demanding Insurance Records

If your case involves claims that in any way could be covered by insurance, then ask about insurance.

If you do not think insurance would apply, ask about insurance. You just do not know what kind of policy might exist.

Make certain you demand records of the policy and all communications about any claim there may have been made on your claims or defenses. You are looking for a “deep pocket” you can reach into to pay any settlement or award. It is nice to win. It is nicer to get paid.

Demanding Expert Records

You can find and hire an expert to testify about anything, anytime, for any amount of money.

There are websites that will bend over backwards to get you to hire one of their experts so they can get a piece of the action.

The point is, unless there is a great wide gap between expert’s qualifications, experience, or field of expertise, they will cancel each other out and a jury will tend to disregard the opinions. I am not suggesting you forgo hiring an expert. If you need one in your case, then hire one. But understand that their effectiveness can be limited, and they can mess up.

Once again, check your rules. Some states do not require you disclose everything about your expert. Some states require you disclose everything about your expert. Generally, if you have a report from an expert that addresses an issue in your case, it is “discoverable”.

Admissions

Admissions are just what they sound like; questions that must be admitted are either true, or accurate, or not. If you dislike the word “true”, or untrue or inaccurate - we will use admitted or denied.

Notably, admissions are in line with the efforts of courts to simplify issues in any case before you pitch your case ito a jury. If you have an admission to a particular fact, there is no reasons to offer proof of the fact at trial. If Johnny Doe denies a particular fact at trial and you have an admission, you can “impeach” the witness…contradict…and show the jury that witness is lying.

The key to admissions is to be as brief and exact as possible. You do not want Johnny Doe squirming out of answering because he says the question is too vague or has multiple admissions in it. It is also a good idea to make them sequential. If Johnny answers yes to one question, then he must answer the next question. No squirming. For instance, Johnny Doe was in a collision at that famous intersection, so you might fashion as series of admissions like:

You were operating your vehicle on March 16, 1954.
On March 16, 1954, you approached the intersection of Dolly Parten Street and Tom Brady Ave.
When you arrived at the intersection of Dolly Parten Street and Tom Brady Ave. on March 16, 1954, the traffic control light to your right and facing you was red.
When you arrived at the intersection of Dolly Parten Street and Tom Brady Ave. on March 16, 1954, you did not stop the vehicle you were operating.
When you arrived at the intersection of Dolly Parten Street and Tom Brady Ave. on March 16, 1954, you drove the vehicle you were operating through the intersection.

If you design your admissions in sequence and Johnny Doe still does not answer or claims they are vague or confusing he will be met with incredulity in Court when you file a motion to compel him to answer.

The alternative is that your rules, like so many, provide that in the event Johnny Doe doesn’t answer and his reason is bullshit, the Court, on your request at trial, will rule them admitted, which could really cripple a case.

Depositions

You might think it would be a good idea to dedicate a whole chapter to depositions. Many attorneys panic over depositions, but there is no need to get your feathers all ruffled. It is not the most important thing you will do as a lawyer if there is a most important thing. But it is an opportunity to get more information and information is the lifeblood of an attorney.

Once again it is worth repeating, look at your rules of practice and local rules if they apply and get the process down. Here is a list of things you should get a handle on if you are going to schedule a deposition:

Can you drag the person into a deposition to testify under oath? Some states limit your access to certain types of witnesses, like experts.
What is the process you use to drag someone into a deposition? Is there a time limit after which you cannot take a deposition.? Do you have to send the person a summons? Do you have to use a form to advise opposing counsel or do you do that by some other kind of notice?
Where are you going to have the deposition? Do you have space, or do you want to ask opposing counsel if his conference room is available?
You will need a stenographer. Look on the internet if you have not used one. Watch out for grossly expensive services. You do not have to pay for an expensive stenographer and remember it is your money you are spending.
Think of whether you want to schedule all the witness deposition on the same day if they are short or over a set of days as consecutively as possible.
Call opposing counsel and talk about depositions. It is a good bet opposing counsel will have some helpful thoughts about depositions and the witnesses he would like to depose.
Find out how to preserve the testimony. This means whether your state system requires that you give a copy of the transcript of the testimony to the witness and give that witness the opportunity to certify the transcript is correct.

Some preliminary stuff before you begin

You are now at the deposition. What do you do? You know you must run this deposition, take the reins, and run with it, but nobody told you how to do that.

Don’t avoid the issue. Don’t spend a crazy amount of time organizing your file on the table. Don’t strike up a completely innocuous conversation with opposing counsel. Don’t obfuscate.

Do remember that there is a formal record that will be created by the stenographer. Some of what will happen in that room will be on the record some will not. You must tell the stenographer when you are “on the record” and when you are off.

Here is breakdown of what I do and say…

I give the stenographer a copy of the caption of the case. It will be needed for the first page of the transcript.
I ask the stenographer to go on the record.
I ask the attorney for the witness at the deposition if he wants his client to “read and sign”. This means the witness has 30 days from receipt of the transcript to read it and certify it is an accurate record of his testimony and then sign the transcript certifying its accuracy.
If there is no attorney representing the witness, I tell the witness that he/she can have 30 days to read and sign, I ask if they want the 30 days.
I ask if counsel wants to waive notary. In my state, a signature on the transcript must be notarized unless both attorneys agree to waive the notary. (I also ask the witness if there is no attorney.)
I ask the stenographer to swear in the witness. Usually, the stenographer asks the witness for identification, like a driver’s license. They will then give the witness an oath…raise your hand….etc. .
I will then introduce myself to the witness on the record.
If the attorney for the witness has done his job, the witness will have been briefed on what to expect. To make certain, I go through an explanation.
“My name is Joseph Balliro, Jr. I am the attorney for the plaintiff John Smith. I will be asking you questions. Wait until I have finished asking the question before you begin to answer. You must answer with an audible response in words. The stenographer cannot take down a shake of your head. A response that is not a word can be interpreted different ways. Please answer in words. The stenographer cannot not take down multiple people speaking at once. Please wait for your chance to respond when I am not talking. Do not talk when other people are talking. If you do not understand a question, please tell me you do not understand the question, and I will ask another question. If you cannot answer a question the way I have asked, please tell me you cannot answer the question the way it has been asked and I will re-phrase the question. If there is an objection to a question or to your answer, stop talking until you are instructed. If you need a break, ask. You may not talk to your attorney about your answers or the questions during a break. Do you understand?”

Sometimes an attorney will object to my instructions to his witness. The attorney is just being a jerk. Sometimes the attorney might say something like, “Don’t instruct my client.”

This should alert you to the personality of the attorney and what you can expect as you ask questions. Most likely there will be many objections and the attorney will just give you a hard time. This is a character flaw. There is no need. It is an infantile response to a non-threatening situation. But lawyers’ egos are huge. Many attorneys think they are better than all other attorneys and need to stick out their chests and be king of the yard. Personally, I don’t give a shit how great you think you are. I am going to do my job. You want to fight with me? Have at it. I will fight back.

Unless the difficult attorney wants to fight about something else on the record, I start asking questions.

Questions

Every attorney has a different perspective on questioning a witness during deposition. A good place to start is thinking about what you want to achieve. I mean this in the narrow sense, not in the big picture. In the big picture, you want to get as much information as you can. In the narrow sense you want to find out certain important things; like “Why does the defendant say he was tricked into signing the contract?” or “How is this witness going to support the defendant’s version of the events?”

You must write out your questions! This is important. You might think you have the skill to remember what you want to ask. Big mistake. You will miss something that could be important. It is not a game, although sometimes it feels just like a game. When you write out your questions, or type them out, you have successive questions that will rely on each prior question, and you will not miss anything. It will also give you the opportunity to think through your questioning so you can be most effective.

Here are some suggestions:

Start with biographical data questions. You will want to know if the witness will testify at trial to something designed to bring out an emotional response. One witness in a case of personal injury auto had 12 foster children and volunteered at the local homeless shelter. Had nothing to do with how she operated the car, but it told me they were proposing the “good person” defense.
Ask next about education. “Please describe your formal education starting at high school.”
Ask about awards, certifications, continuing education, licenses, etc. “Do you have any professional licenses, certifications, awards, or do you participate in continuing education?”
Ask about employment. “Please describe your work history starting with your first job after high school?”
I usually get into the nitty-gritty after these questions unless there is a reason to go back through some of the information given.

Do Not Fight With the Witness! This will get you nowhere. People are inherently threatened in a foreign environment. They are out of their comfort zone. You can get some weird reactions to questioning.

War Story I had a smaller case in a lower trial court involving the non-payment of an auto repair bill. I represented the defendant sued by the repair garage. I think it was for about $2,500.00, but I needed to take a deposition to be on the safe side. The defendant had tried to resolve the case before he was sued, but the garage owner was a terrible person. He prided himself in being as difficult a person as possible. He believed he was a tremendous businessperson and being tough and irascible was necessary. He had a huge ego.

Before I started asking questions, he announced off the record he would only answer questions he wanted to answer and none other. I asked the stenographer to go on the record and asked him to repeat what he said off the record. Silence. I asked him to answer. He said there was no question. I asked if he had told me he would only answer questions he wanted to answer and none other. He answered he would not answer that question. I asked him if he was not answering that question because he had announced he would only answer questions he wanted to answer and none other. Silence. I asked the stenographer to swear him in. He refused to be sworn in.

I asked the stenographer to go off the record. I asked counsel if we could speak outside the room. We stood from our chairs and started to exit the room. The witness began to follow. I asked the witness if he could give us a minute to discuss some issues alone. He said he would not.

We sat down and I asked the stenographer to go on the record. I asked the witness again if he intended to only answer questions he wanted to answer and none other. Silence.

I suspended the deposition and advised counsel I would seek a court order and sanctions.

The Court ordered the witness to deposition and to answer questions. The witness was fined $5,000.00 which he refused to pay. His attorney withdrew as counsel. The witness did not show at deposition.

Here is where it got dicey. The Court dismissed his case. The Court allowed my request for trustee process. I gave the order to a sheriff who went to the garage and took money directly out of the garage cash register. The owner resisted. The police were called. The garage owner was arrested. There was not enough money in the register. The sheriff, angry now, stayed at the garage and took money as it was paid until the $5,000.00 plus his fee was paid.

With the criminal fines and the fine from the Court, this complete fiasco cost the garage owner over $10,000.00. I asked the Court to compel the owner to pay my attorney fees. The Court refused and explained, “ I don’t know if he has learned his lesson, but we have to end this at some point and this seems like a good time.”

Dumbest thing I had every been through, but, at least the garage owner had his principles!

A Cynic's Guide to Civil Litigation - Chapter 9 - What to do Next?