27 Thursday Apr 2017
Posted in Discovery, Interrogatories
Interrogatories Asking for Insurance Coverage Information, by Paul Luvera, Plaintiff Trial Lawyer Tips
When your discovery rules allow the plaintiff to get the defendant’s insurance coverage, never miss the opportunity to get all the details you can. Here are some excellent examples of interrogatories and strategy. -CCE
20 Saturday Aug 2016
I admit it. I love writing and answering discovery. Too often, I have seen boilerplate discovery asking for something that is not relevant. What a waste. Do not write discovery if you know nothing about the case. Blindly sending boilerplate discovery at best makes you look busy. At worst, it makes you look sloppy.
Discovery rules change. Read and re-read the court rules, local court rules, and the applicable discovery code. At the outset of the case, send your client and the opposing party a litigation hold letter. It does not matter whether either is an individual or a big corporation. Everyone uses email and sends texts on their cell phones.
Before you start writing discovery, you have to be familiar with the facts and law of your client’s case. If you aren’t, read the pleadings. Understand why the plaintiff sued the defendant(s) and what answer the defendant gave to those allegations, including all affirmative defenses. If it helps, make a chart or an outline.
There is a basic way to determine what discovery you should request. First, make a list of what you need to prove your case. We’ll call this List #1. Second, ask yourself whether you have everything needed to prove (or defend) everything on List #1? You won’t. So, third, make a list of what you need – List #2. Your client will provide some of the evidence you need, and you will use discovery to continue your search. Revise List #2 to identify what you need but do not have.
With List #2 as your guide, use discovery to get whatever else you need to prove your case. Each type of discovery is unique. Play to their strengths, which is a post all by itself. Craft your discovery to snag that evidence and identify anyone who is a potential witness and/or document custodian.
A quick word about Definitions and Instructions. Please do not regurgitate the discovery rules. I admit that I do not follow my own advice. I like to remind opposing counsel (and the opposing party) that there is a continuing obligation to supplement discovery. In the hopes that it will save time and aggravation, I also like to add the specific language from the discovery code about when you can object and why.
Define only what is necessary. If there is room for confusion, clarify what is what and who is whom. If the case revolves around specific documents, such as a contract or an event, define it with a simple designation. Your goal is instant recognition of whatever it is. If there are more than one contract or event, make your definitions basic and easy to recognize.
As soon as you receive the responses to your discovery, mark every incomplete answer or objection. Ask for supplementation where needed, and follow up. If an objection is ridiculous or simply obstructive, challenge it while at the same time building exhibits to support a motion to compel (read the rules!). Do not wait until the discovery deadline is looming to stay on top of this.
This one should be a no-brainer, but I still see it every so often. A party objects to the most basic discovery question and refuses to answer. The other side asks a standard, basic interrogatory, and you object. Really? You cannot enforce it. You know it; I know it; and the other side knows it.
Say goodbye to your boilerplate forms. If you use a form, proofread. Know your case. Adapt your discovery plan as the case progresses. These are not all the basics, but it will hopefully give you a running start. -CCE
17 Sunday Jan 2016
Posted in Discovery, Federal Rules of Discovery, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions
≈ Comments Off on Wise Advice on Drafting Definitions and Instructions in Discovery.
Tags
Definitions and Objections, Discovery, Prof. Denis Stearns, Sanctions, Seattle University School of Law
Drafting & Using Effective Definitions for Interrogatories (And Other Ways To Make It Much Less Defensible To Object), by Prof. Denis Stearns, Seattle University School of Law, Of Counsel, Marler Clark, LLP, PS
Probably one of the best and most logical explanations on how and when to include Instructions or Definitions in your discovery requests and how to deal with boilerplate objections. Good advice and tips for even the most experienced litigator. -CCE
01 Friday Jan 2016
Posted in Diligence, Discovery, E-Discovery, Federal Judges, Interrogatories, Judges, Legal Ethics, Requests for Admissions, Requests for Production, Rules of Professional Responsibility
≈ Comments Off on Chief Justice Urges Judges To Impose More Management Over Their Cases.
Chief Justice Wants Less Gamesmanship By Lawyers, by Lyle Denniston, SCOTUSblog
Justice Roberts’ words apply to state courts as well. Ignoring client’s cases, unnecessary and burdensome discovery disputes, and repeated continuances do nothing to endear the legal profession to their clients or the public. -CCE
Speaking in soft but plain words, Chief Justice John G. Roberts, Jr., used his year-end report on Thursday night to urge lawyers who practice in federal courts to take steps to help improve the efficiency, and reduce the cost, of trying cases. Roberts also added some strong encouragement for judges who preside over federal civil trials to take greater control of the management of cases, rather than leaving the process to the tactics of the competing lawyers. . . .
02 Saturday May 2015
Posted in Discovery, Exhibits, Federal Rules of Discovery, Interrogatories, Requests for Admissions, Requests for Production, Trial Tips and Techniques
≈ Comments Off on Top Ten Checklist For Reviewing Discovery.
Tags
Carol Treasure, Discovery Responses, Privilege Log, The Bar Association of San Francisco, Trial Exhibits, Trial Tips & Techniques
Top Ten Things To Do With Discovery Responses, by Carol Treasure, RN, PhD, JD, Cooper & Scully, P.C., The Bar Association of San Francisco
http://www.sfbar.org/basf-bulletin/2012/dec-2012/discovery-responses.aspx
Attorneys expend tremendous effort drafting interrogatories and requests for admissions or documents. Having a checklist will assist you when reviewing the discovery responses. Below is a list of ten things you can do with discovery responses which can save you time and help with case management. . . .
24 Tuesday Mar 2015
Posted in Discovery, Family Law, Hidden Assets, Interrogatories, Requests for Production, Trusts
≈ Comments Off on What Can You Do When The Divorcing Spouse Hides Marital Assets In A Trust?
Tags
Asset Search Blog, Discovery, Divorce, Fred Abrams, Interrogatories, Marital Assets, Requests for Production, Trusts
Divorce & Hidden Money: Collecting Evidence About Assets Concealed By A Trust, by Fred Abrams, Asset Search Blog
Mroy post ‘Four Asset Concealment Tools‘ says that assets can be hidden by fraudulently transferring them to a trust. This 15th post in the ’Divorce & Hidden Money’ series concentrates on the evidence a divorcing spouse might try to collect if marital assets are concealed by a trust.
A spouse can use the pretrial discovery phase of a divorce to gather evidence about any marital assets concealed by a trust. Based on this evidence, the divorcing spouse may be able to credibly argue that assets at the trust are marital property subject to distribution by the Court. A divorcing spouse might also claim the trust was void if the trust was ‘self-settled‘ (i.e. the grantor and beneficiary were found to be one and the same). Under certain circumstances a divorcing spouse can additionally assert the trust veil should be pierced because the trust wrongly concealed assets &/or facilitated fraudulent transfers. See Babitt v. Vebeliunas (In re Vebeliunas), 332 F.3d 85, 91 (2d Cir. 2003) (discussing New York cases where right to pierce trust veil was preserved). . . .
21 Saturday Mar 2015
Posted in Bates Numbering, Discovery, Document Control, Interrogatories, Requests for Admissions, Requests for Production
≈ Comments Off on Another Way To Number Discovery Documents With Microsoft Word.
Tags
Auto-Numbering, Bates Numbering, Discovery, Document Control, Interrogatories, Matt Albrecht, Microsoft Word, Remedial Action Law Blog, Request for Production of Documents, Requests for Admission
Making Numbering Interrogatories and Requests for Production/Admission Easy (with Video), by Matt Albrecht, Remedial Action Law Blog (with hat tip to Sam Glover, Lawyerist Blog, and Patricia Lyons)
Not surprisingly, Pat Lyons, RP, from Rhode Island, one of the sharpest paralegals I’ve ever met, knows a neat trick. Thanks, Pat! -CCE
Numbering requests for production and requests for admission is something that legal secretaries and attorneys loathe. It’s something that systems administrators loathe to see take so long to do. It’s an error-prone process that occasionally results in mis-numbering and confusion, and when mistakes occur, it just looks bad.
Microsoft Word has auto-numbering features that can make things like this easier. One way that we use auto-numbering is for legal-style numbered paragraphs. Properly applied to Styles in Word, numbered paragraphs are easy, automatic, and they update themselves. We use multilevel lists to accomplish numbered paragraphs, and it works wonderfully. . . .
17 Saturday Jan 2015
Posted in Boilerplate Forms, Discovery, Editing, Interrogatories, Legal Writing, Legalese, Plain Language, Readability, Requests for Admissions, Requests for Production
≈ Comments Off on Federal Magistrate On Writing Discovery and Responses – “What We Have Here Is A Failure to Communicate.”
Tags
Discovery, Discovery Disputes, Discovery Responses, Legal Writing, Oklahoma Bar Journal, U.S. Magistrate Paul J. Cleary
| Some Thoughts on Discovery and Legal Writing, by Judge Paul J. Cleary, Oklahoma Bar Journal, 82 OBJ 33 (2011)
Since 2002, The Hon. Paul J. Cleary has served as U.S. Magistrate Judge for the Northern District of Oklahoma. He has the joy of overseeing discovery in civil litigation. You could say that experience makes him an expert. It should be no surprise that he urges counsel to use good writing habits and avoid boilerplate language. -CCE “What we have here is failure to communicate.” Cool Hand Luke (Jalem Productions 1967). |
There is a famous scene at the end of the movie Blow Up2 where mimes face off in a tennis match using an imaginary ball and racquets. It reminds me of too many discovery disputes: I sit as the linesman, watching helplessly as the lawyers roil and argue between intermittent swats at imaginary objects.
The fundamental problems that underlie most discovery disputes might be pulled from the pages of a marriage counselor’s handbook: Fear of commitment and inability to communicate. Lawyers won’t commit to a definition of the legal dispute: It’s not a simple breach of contract; it’s a contract, fraud, bad faith, conspiracy, racketeering case. The ill-defined nature of the dispute drives discovery into vast, uncharted territory. By the same token, lawyers responding to discovery requests won’t commit to a clear statement of what responsive documents exist and which of those will be produced. The purpose of this article is to examine the problem of inartful/incomprehensible discovery requests and responses and to offer some observations and, perhaps,some solutions. . . .
21 Sunday Dec 2014
Posted in Attorney-Client Privilege, Cross-Examination, Defense Counsel, Depositions, Direct Examination, Discovery, Interrogatories, Litigation, Making Objections, Negligence, Personal Injury, Plaintiff's Counsel, Privilege and Confidentiality, Trial Tips and Techniques
≈ Comments Off on May Defense Counsel Ask Plaintiff Whether He Was Referred to Doctor?
“Did Your Attorney Refer You to that Doctor?” by Daniel E. Cummins, TORT TALK Blog
In a recent Delaware County Court of Common Pleas decision in the case of English v. Stepchin, No. CP-23-CV-786-2014, 101 Del. 424 (C.P. Del. Co. Nov. 12, 2014 Kenney, P.J.), President Judge Chad F. Kenney upheld a defense attorney’s right to inquire of a personal injury plaintiff whether or not plaintiff’s counsel had referred the plaintiff to her treating physician.
This issue came before the court on a Motion for a Re-Deposition of the plaintiff by defense counsel.
At the original deposition, plaintiff’s counsel objected to the defense counsel’s question to the plaintiff as to whether or not plaintiff’s counsel had referred the plaintiff to her treating physicans. Plaintiff’s counsel asserted that such discovery was barred by the attorney-client privilege.
In his Opinion issued on the matter, President Judge Kenney held that, ‘whether counsel referred Plaintiff to her treating physicians does not constitute legal assistance so as to justify properly invoking the attorney-client privilege.’ More specifically, the court found that whether an attorney referred his client to a medical provider for treatment cannot be considered to have been a communication from an attorney to his or her client associated with the rendering of a legal opinion or the provision of legal services so as to invoke the applicability of the attorney-client privilege.President Judge Kenney also stated that any asserted privilege ‘failed to outweigh the interest of the accessibility of material evidence to further the truth-determining process’ at a trial of a personal injury matter.
The Court granted Defendant’s Motion and ordered a 2nd deposition limited to the issue of who referred Plaintiff to her treating physicians.
Anyone wishing to review this decision, may click this LINK.
02 Tuesday Sep 2014
Posted in Discovery, E-Discovery, Federal Rules of Discovery, Interrogatories, Requests for Production
≈ Comments Off on Avoidable E-Discovery Mistake – A Good Lesson on Proportionality.
Tags
Bow Tie Law’s Blog, E-Discovery, Fair Housing Act, Joshua Gilliand, Predictive Coding, Request for Production
Nebraska, Where Proportionality is Alive and Well in Discovery, by Joshua Gilliand, Esq., Bow Tie Law’s Blog
One lesson from United States v. Univ. of Neb. at Kearney, is that maybe you should take depositions of key parties and use interrogatories to find out relevant information to your case before asking for over 40,000 records that contain the personal information of unrelated third-parties to a lawsuit. . . .
17 Tuesday Jun 2014
Posted in Discovery, Insurance Defense, Interrogatories, Litigation, Motor Vehicle, Negligence, Personal Injury, Product Liability
≈ Comments Off on How To Draft Interrogatories.
Drafting Interrogatories, by Megan E. Boyd, Lady (Legal) Writer
There are five types of discovery. Each has its own strength and weakness. Knowing when, and how, to use each effectively narrows the issues of the case and may even provide sufficient evidence for a successful summary judgment motion. This post discusses one of the most common and useful forms of discovery – interrogatories. -CCE
Interrogatories (a fancy name for a list of questions) are sent as part of the discovery process in litigation and allow parties to gain information relevant to the litigation. Many attorneys send interrogatories before they engage in other types of discovery, such as depositions, because interrogatory responses often help an attorney narrow down the types of questions the attorney will ask during a deposition. . . .
08 Sunday Jun 2014
Posted in Court Rules, Courts, Depositions, Discovery, E-Discovery, Federal District Court Rules, Federal Rules of Discovery, Interrogatories, Preservation, Requests for Admissions, Requests for Production
≈ Comments Off on Proposed Amendments to Federal Civil Procedure Rules Are Close to Approval.
Committee on Rules of Practice and Procedure (“Standing Committee”) Approves Proposed Amendments to Federal Rules of Civil Procedure, by K&L Gates, posted in FEDERAL RULES AMENDMENTS, NEWS & UPDATES.
The amendments to the Federal Rules of Civil Procedure will be finalized sometime in September. -CCE
Last week, the Committee on Rules of Practice and Procedure (the “Standing Committee”) approved proposed amendments to the Federal Rules of Civil Procedure, including the “Duke Rules Package,” addressing Rules 1, 4, 16, 26, 30, 31, 33, and 34 and a rewritten version of Rule 37(e), addressing preservation. The proposed amendments were approved with only two revisions to the proposed Committee Notes for Rules 26(b)(1) (encouraging consideration and use of technology) and 37(e) (clarifying the role of prejudice in subsection (e)(2) of the proposed rule). Meeting minutes reflecting the precise changes to the Committee Notes are not yet available, although the text of the rules as adopted was published in the Standing Committee’s meeting Agenda Book, available here.
The next stop for the proposed amendments is the Judicial Conference, which will consider the proposed amendments at its meeting in September.
24 Saturday May 2014
Posted in Admissibility, Authentication, Depositions, Discovery, Evidence, Federal Rules of Discovery, Federal Rules of Evidence, Interrogatories, Relevance, Requests for Admissions, Requests for Production, Sanctions, Subpoena Duces Tecum, Trial Tips and Techniques
≈ Comments Off on When Discovery Becomes Less About The Merits of the Case And More About Obstruction.
Tags
Boilerplate Objections, Discovery, Litigation and Trial Blog, Matthew Jarvey, Max Kennerly, Meet and Confer, Motion to Compel, Requests for Admission
Boilerplate Objections And “Good Faith” Requirements Are Ruining Civil Discovery, by Max Kennerly, Esq., Litigation and Trial Blog
Please make sure to catch the reference and link to: Matthew Jarvey, “Boilerplate Discovery Objections,” 61 Drake L. Rev. 913 (2013). -CCE
‘If there is a hell to which disputatious, uncivil, vituperative lawyers go, let it be one in which the damned are eternally locked in discovery disputes with other lawyers of equally repugnant attributes.’ Dahl v. City of Huntington Beach, 84 F.3d 363, 364 (9th Cir. 1996) (quoting Krueger v. Pelican Prod. Corp., No. CIV-87-2385-A (W.D. Okla. Feb. 24, 1989). . . .
