When to Serve Interrogatories?

There is a split of opinion among personal injury lawyers as to whether plaintiffs should propound interrogatories before or after taking depositions, particularly in a case where there is a significant dispute as to liability.

When looking at this question, it is important to acknowledge that defense lawyers in personal injury cases are like actors: there a lot of Jack Nicholsons and Meryl Streeps and there are also a lot of folks who call themselves actors but their acting skills do not rise to even Skinamax quality.

So some lawyers are going to learn the case when they get the file and get their client ready, regardless of the stage of the case. Others are going to not know the file at all and introduce themselves to the client and the case 10 minutes before the depositions. The theory behind waiting to serve interrogatories is that if you get the latter type of defense attorney, the defendant will take positions that don’t comport with the facts, logic or good strategy because they have not looked at the nuances of the case. Arguably, this logic would even hold up against a top notch lawyer because every lawyer, even well prepared lawyers, sees a case with a clearer lens on the courthouse steps than they do when preparing for a deposition.

By the way, the same logic holds true with less force when serving requests for admission when litigation commences. Every defense lawyers’ instinct – it was mine as a defense lawyer – is deny, deny, deny and then never go back and look at the answers again. If you have a leg fracture case where the client’s leg is pretty much replaced by a titanium rod, answers to requests for admission that deny the victim was even hurt in the accident certainly make clear to the jury that the defendant is not trying to be reasonable. But it is with less force because the statements of a party are far more compelling to a jury than what they admitted or denied in requests for admission.

The advantage in first obtaining answers to interrogatories is that the answers should help the attorney determine who should be deposed, what questions should be asked of those deponents and what documents should be obtained in the case. Having the interrogatory answers, in some cases, also may tend to shorten the length of time required for the deposition. A possible advantage in taking the opposing party’s deposition before serving interrogatories is that the party’s deponent will not have thought out the factual and legal position thoroughly with the attorney and be as prepared as he/she might be otherwise.

The decision turns on many factors, including the intelligence of the adverse party and the thoroughness of opposing counsel. A competent, careful attorney would adequately prepare the client for a deposition, despite when it was noted. However, the longer the case progresses, the more likely it is that an attorney will become familiar with the facts and legal arguments and be better able to prepare the witness to testify in a manner beneficial to the client’s cause.

Anyway, having said all of that, we serve our interrogatories with our Complaint. First, I think most defense lawyers are pretty good lawyers so the advantage is not overwhelming. (Random aside: I think the average defense lawyer is a better lawyer than your average personal injury lawyer.)

Second, it allows you to take advantage of the fact that as plaintiffs’ lawyers, we can dictate the pace. Going first, we can fully load the proverbial gun before firing, which helps you get your offense started. As much as I like to depose a defendant when he/she and the defense lawyer are not prepared, I think it is even more important to know where defense is going with their case before you answer detailed questions about where you are going. You can play petty tactics games to get to the same place with filing interrogatories first. But I don’t think it is worth the goodwill you spend because, not always but often enough that it matters, goodwill and lack of pettiness begets the same in return.

Finally, there is also another practical issue at play for lawyers with a full case load: from a systems standpoint you have one less thing you have to put back on your checklist. You have less of a chance of screwing it up if you get it right from the beginning.

So why did I bore you with all of this when I could have just written “we serve our interrogatories with the Complaint” and called it a day? One, I think reasonable minds can differ on this point, so I wanted to lay out both sides of the issue. But I also think that applying a “one size fits all” template is a bad idea and leads to stagnant trial tactics. Smart counsel does a “drive-by” on this issue in every single case.

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