interrogatories & depositions civil litigation i - unit 6
TRANSCRIPT
Interrogatories & Depositions
Civil Litigation I - Unit 6
Text
•Chapters 11 and 12
Interrogatories
•A party who makes some demand A party who makes some demand or request on another party or who or request on another party or who actively seeks some action by the actively seeks some action by the court.court.
Proponent
•A person who gives testimony A person who gives testimony under oath in an affidavit, in an oral under oath in an affidavit, in an oral deposition, in a written deposition deposition, in a written deposition or in court.or in court.
Deponent
• In federal court, parties are allowed In federal court, parties are allowed to serve only twenty-five to serve only twenty-five interrogatories on each other.interrogatories on each other.
•A party may move the court for A party may move the court for leave (permission) to serve more.leave (permission) to serve more.
Number
•Rule 26(d) precludes parties from Rule 26(d) precludes parties from serving interrogatories until they serving interrogatories until they have participated in a discovery have participated in a discovery planning meeting.planning meeting.
• In state court, a plaintiff may serve In state court, a plaintiff may serve interrogatories with the complaint – interrogatories with the complaint – and a defendant can serve and a defendant can serve interrogatories even before an interrogatories even before an answer is due.answer is due.
Timing
•Each interrogatory must be Each interrogatory must be separately numbered.separately numbered.
•Each subpart counts as an Each subpart counts as an individual interrogatory.individual interrogatory.
Format
• For each witness statement For each witness statement obtained by the defendant, state the obtained by the defendant, state the following:following:
Example of Interrogatory
•a) The name and address of the a) The name and address of the person who interviewed the witness.person who interviewed the witness.
•b) The date on which the statement b) The date on which the statement was obtained.was obtained.
•c) The means by which the c) The means by which the statement was recorded.statement was recorded.
•d) The name and address of each d) The name and address of each person who was present when the person who was present when the statement was obtained.statement was obtained.
•e) Whether the witness has been e) Whether the witness has been given a copy of his or her statement.given a copy of his or her statement.
• Describe each witness Describe each witness statement you have obtained by statement you have obtained by identifying fully the date on which it identifying fully the date on which it was obtained, the identity of the was obtained, the identity of the interviewer, how the statement was interviewer, how the statement was recorded, and whether the witness recorded, and whether the witness has been given a copy.has been given a copy.
Better Example
1)1) Do you know of any witnesses to Do you know of any witnesses to the accident?the accident?
2)2) If so, state the name and address of If so, state the name and address of each witness.each witness.
Conserve
• State the name and address of State the name and address of all witnesses to the accident.all witnesses to the accident.
Conserve
• If a plaintiff is claiming $10,000 If a plaintiff is claiming $10,000 in damages for his damaged in damages for his damaged automobile, what should the automobile, what should the defendant seek to find out through defendant seek to find out through interrogatories re: plaintiff’s claim for interrogatories re: plaintiff’s claim for damages?damages?
• Let’s brainstorm together.Let’s brainstorm together.
•Original cost of the automobileOriginal cost of the automobile
•When and from whom it was When and from whom it was purchasedpurchased
•Whether it can be repaired or has to Whether it can be repaired or has to be replacedbe replaced
•Estimated or actual cost of repairEstimated or actual cost of repair
•Availability of supporting Availability of supporting documentation, such as repair billsdocumentation, 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?