Drafting discovery documents for effective use at trial

Drafting RFA’s, interrogatories and requests for production of documents with their use at trial in mind

2015 October

A judge once wrote in an opinion, “Ask me a foolish question and I’ll give you a foolish answer.” (Pressley v. Boehlke (1963) 33 F.R.D. 316, 317.) The offending interrogatory that prompted the judge’s remark read: “In what way could you have avoided the collision?” In a similar fashion, some attorneys decide to try their whole case in written discovery. Written discovery serves multiple purposes, but is primarily for gathering information. However, the least focused- upon purpose is drafting discovery for use at trial.

Why use discovery at trial

Just like key deposition testimony, written discovery not only provides pertinent information to your case, it “locks in” defendants to the information they give you. A signed verification is just as important, and has the same force and effect as the oath and admonishment in a deposition. Discovery is often propounded and responded to before the defense counsel has had time to digest the case and come up with a solid theory of defense or theme to the defendant’s case. Therefore, it is best to draft thoughtful written discovery, including Request for Admissions and Special Interrogatories, which will pin down defendants.

Once pinned down, it is difficult for a defendant to stray from their written responses during deposition. This strategy is helpful, not only in disputed liability, but admitted-liability cases. For example, in an admitted-liability case, defense counsel still may attempt to argue at trial that, somehow, even though defendant is admitting liability, some other tortfeasor contributed to the plaintiff’s injuries. If defendant cannot identify anyone else that he or she thinks contributed to the plaintiff’s injuries, it then becomes much more difficult for them to do so at deposition, or later at trial.

The next obvious step is then at trial, where discovery is, more often than not, used for impeachment. Using written discovery for impeachment can be tricky. You have to properly identify the documents (requests and responses) as exhibits, lay foundation, make sure the answers are verified, and ask the right questions of the party on the witness stand to make sure the jury understands what you are setting up.

Sample questioning on cross-examination before using written discovery:

Atty: Mr. Defendant, earlier when this case began, you were asked to answer some questions in written form, correct?

Def: Yes.

Atty: And you provided answers to those questions, correct?

Def: Yes.

Atty: And you signed a document that you answered those questions truthfully, correct?

Def: Yes.

Atty: And when you signed that document, you knew you were answering those questions under the penalty of perjury, correct?

Def: Correct.

Atty: And you answered those questions to the best of your knowledge at the time, correct?

Def: Yes.

After this line of questioning, the jury should have a pretty good idea that you’re preparing to ask about those “questions.” And they also understand the gravity of the responses, and that the defendant has already confirmed that they believe the responses are true. Once this line of lead-in questioning is completed, you should introduce the propounded requests and responses.

The most difficult part of this process is getting the jury to understand what you originally asked the defendant in the propounded discovery. This is why it is so important to write the discovery in a format comprehensible to a layperson. Otherwise, questions full of legalese and complexities will be lost on the jury and you will give up the “pop” or the “gotcha” moment in the impeachment cross-examination.

There are ways to draft request for admissions, special interrogatories, and document requests in a manner that makes them more usable at trial.

Drafting request for admissions

The main purpose of Request for Admissions (RFA) is to limit the issues at trial. Plaintiff attorneys should use Request for Admissions for their intended purpose – as judicial admissions, as opposed to evidentiary admissions. Section 2033.410(a) of the California Code of Civil Procedure states:

Any matter admitted in response to a request for admission is conclusively established against the party making the admission in the pending action, unless the court has permitted withdrawal or amendment of that admission under Section 2033.300

An example of the difference is as follows:

Admit that you have no evidence to show Plaintiff was comparatively negligent at the time of the INCIDENT.

(Evidentiary Admission)

Admit that Plaintiff was not comparatively negligent at the time of INCIDENT.

(Judicial Admission).

While the difference seems minimal, the court treats an admission to each differently. For example, in Burch v. Gombos (2000) 82 Cal.App.4th 352, the parties disputed the use of a road on the plaintiff’s private property. Defendant wanted to use the road to conduct logging operations. At trial, the court permitted defendants to introduce evidence of public use of the roadway. The plaintiff contended that the trial court erred because the defendant/respondent previously responded to a request for admission by admitting they had no such evidence. The offending request for admission was as follows:

Admit that you have no evidence of recreational use of the disputed portion of Summit Road prior to March 4, 1972.

The defendant responded with an unqualified admission. Plaintiff relied on this admission and argued that because defendant did not amend or withdraw this admission, that defendant was precluded from introducing evidence on this matter at trial. However, the appellate court was not swayed. The court concluded that the statute does not create any ongoing duty to update responses, and more importantly, that “[a]lthough admissions are dispositive in most cases, a trial court retains discretion to determine their scope and effect.” (Id., at 359-360 (citing Fredericks v. Kontos Industries Inc. (1987) 189 Cal.App.3d 272, 277). In Burch the trial court used its discretion in determining that the word “have” simply meant that at the time of service of the responses to the RFA in April 1997, that the defendant did not have the evidence requested. The trial court limited the scope of that request to the specific period of time of April 1997 (the time period when the defendant responded to the RFA), and did not broaden the scope to become “some sort of promise that [defendant] would not locate evidence in the future.” (Burch v. Gombos, supra, 82 Cal.App.4th at p. 360.)

The court gave the following advice to the readers of the opinion: “[Plaintiff] had thought she eliminated an issue from the case, only to have it reappear much closer to trial. While the problem only appeared in hindsight, it is a consequence of the choice to use an RFA regarding a matter of a party’s present knowledge, rather than a more typical RFA, which addresses a matter of historical fact. With this case as a cautionary tale, we suspect practitioners can devise methods to avoid similar situations in the future.” (Id. (emphasis added).)

One method to avoid the above situation is to use simple judicial admission RFA’s. Use of simple RFA’s complete the main purpose of Request for Admissions, which is to limit issues at trial. Simple RFA’s such as “Admit Defendant was negligent” or “Admit Defendant’s negligence was a substantial factor in causing harm to Plaintiff” solidifies issues. Accordingly, there will be no questions needed as to “whether or not this is an admitted liability case.”

Of course, asking those types of RFA’s are likely to draw objections from defense counsel based upon “question of fact for the trier of fact,” “question of law unable to be answered by a lay person,” “calls for a legal conclusion,” or “calls for expert opinion.” However, these objections are not appropriate for RFA’s. (Cembrook v. Superior Court in and For City and County of San Francisco (1961) 56 Cal.2d 423, 429.) As stated in Cembrook, “[m]ost of the other discovery procedures are aimed primarily at assisting counsel to prepare for trial. Requests for admissions, on the other hand, are primarily aimed at setting at rest a triable issue so that it will not have to be tried. Thus, such requests, in a most definite manner are aimed at expediting the trial. For this reason, the fact that the request is for the admission of a controversial matter, or one involving complex facts, or calls for an opinion, is of no moment. If the litigant is able to make the admission, the time for making it is during discovery procedures, and not at the trial.” (Id., at p. 429.) Defense counsel’s “calls for legal opinion,” “calls for legal conclusion,” are rendered ineffective and inappropriate for the purpose of RFA’s, and must be answered.

Another overlooked aspect of RFA’s comes when a denied RFA is then later proven by the trier of fact. If you “[a]dmit that defendant’s negligence was a substantial factor in causing Plaintiff’s injuries” RFA was denied in discovery, and the jury checked “yes” on your “Substantial Factor” question, the defendant may be on the hook for expenses and fees it took to prove that fact at trial (i.e., expert and attorney’s fees). Not only do proper RFA’s limit issues at trial, they can also lead to recovery of fees and costs. (Code Civ. Proc., § 2033.420).

Drafting special interrogatories

Interrogatories serve several purposes, including obtaining information regarding a defendant’s insurance coverage, obtaining information to be used in amending a pleading, identifying witnesses, establishing important dates, and verifying known facts. Interrogatories can be more thorough than depositions. Whereas depositions come from the knowledge of the deponent, and the answers given are (supposedly) “spontaneous,” interrogatory answers represent the collective knowledge of the defendant, his attorneys, and any agents and investigators. Defendant is also required to conduct a reasonable and good faith effort to obtain the information by inquiring into other sources within his reach. (Code Civ. Proc., § 2030.220(c).)

Form interrogatories are certainly useful, but it is important to not stop there. Special Interrogatories allow you to ask more pointed, specific questions related to the defendant’s contentions, and evidence surrounding those contentions. In drafting special interrogatories it is important to remember: Keep. It. Simple.

Below are ways to keep your special interrogatories simple:

(1.) Single, direct questions, without subparts. Form interrogatories already take care of the necessary questions that require subparts.

(2.) No shotgun interrogatories where the responding party must answer yes in order to keep going. (Avoid interrogatories that read like complex special verdict forms).

(3.) Avoid “legalese” or boilerplate legal terms. Make interrogatories as simple as deposition questions.

(4.) Make good use of defined terms.

While it may sound good to use special interrogatories to obtain the defendant’s contentions, this technique could potentially backfire. Unlike RFA’s, you do not want to use interrogatories to ascertain legal contentions; they are useful for obtaining factual contentions. For example: (a) “What was the color of the traffic light facing you when you entered the intersection?” vs: “Do you contend that you did not violate VC 21453 at the time of the incident?”

The difference is subtle, but each interrogatory has a different implication. The first one is purely factual, and that fact can be used to impeach the defendant on the stand. It is also easily understood by the testifying witness, and the jurors. The second question is complex and involves an analysis of an entire statute. The second example will almost always draw a “legal conclusion” objection with no substantive response.

(a) “When did you last inspect the walkway prior to the incident?” (b) “Do you contend you had no notice of the dangerous condition?”

Again, the first question is a factual question, able to be easily understood at trial by the witness and jurors. The second question assumes a legal conclusion (i.e., that there in fact was a dangerous condition), and it requests the responding party to draw a legal conclusion (i.e., notice).

The takeaway is to imagine yourself at trial with the defendant on the stand. Imagine having to read the question aloud to the witness and jury. Is the question simple, and easily understood? Imagine publishing the interrogatory document for the jury to read. Is it a quick read? Is the wording concise? Is the meaning of the question coming across clearly? Can the witness avoid answering the question because the words and terms are too complex?

Drafting requests for production of documents (RFP)

The main purpose of requesting documents is to obtain the documentary evidence for use at trial. You want to find any documents to help your case, support your theories, and you want to know what defendant will rely upon to support theirs. There are two ways to do this: (1) Use interrogatories requesting defendant identify the documents, then use the RFP’s to demand production of those documents, or (2) Use only the RFP, without having the defendant identify the documents in an interrogatory.

In either case, similar to interrogatories, it is imperative to keep the requests for production simple, for use at trial. While some requests will be more complex than others, identify ones that you may need at trial, or anticipate using.

To expand on previous examples, if your defendant contends they inspected the premises on some regular basis, a simple document request example is: “Produce all documents evidencing inspections YOU performed on the date of the INCIDENT.” Or “Produce all documents evidencing YOUR policy on performing inspections prior to the date of the INCIDENT.”

In this example, if the defendant testifies that another document previously produced proves the premises was inspected, they are easily impeached by simple RFP’s (or interrogatory if used to identify the documents), or potentially precluded from using the document on that issue at trial. It is recommended to take the “interrogatory first” approach as this will tend to curb any efforts by defendant to simply produce documents in a chaotic manner, without specifying which documents are responsive to which production requests. Remember: Keep It Simple.

Drafting responses to defendant’s discovery

On the flip side of the coin, although we may not want our client’s discovery responses to be used at trial, it happens more often than we would like. When responding to discovery, imagine how you would want your client to answer that question on the witness stand. Use the written discovery to tell your client’s story of the issue at hand. However, attempt to do so in a manner that avoids opening up your client for impeachment or preclusion.

For example, instead of responding “no” to an interrogatory asking if the plaintiff had prior similar injuries, lodge the necessary objections, but use the interrogatory as an opportunity to explain the full story. Explain that any prior injuries may have involved similar body parts, but the diagnosis is not the same, the pain was different in duration and intensity, the limitations from the previous injuries were different, or the pain subsided prior to the current incident. Giving the full story will serve to derail any attempts at trial to attempt to impeach your client, since it completely avoids the cross-examination trap of answering in a “yes-or-no” format.

The point is to preserve your objections, and respond substantively, but also, make the response such that if the defense attorney picks up your client’s responses out of the exhibit binder, in an attempt to impeach them at trial, you want counsel to take one look at the paper, put it down, and move on to other questioning.