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Use of Discovery Responses at Trial

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Use of Discovery Responses at Trial

It is not always clear how a deposition or written discovery responses can be used by a party during an evidentiary hearing or trial. The applicable discovery rules provide guidance, but frequently the judge is unsure of what is and is not permissible, and whether the response even needs to be shown to the witness or whether the witness or opposing party is allowed to explain or rebut a discovery response. This presentation will discuss the permissible use of discovery responses and depositions under the applicable rules of civil procedure. Additionally, there will be a discussion of practical considerations for use of the discovery. Finally, this presentation will provide suggestions on methods to make the discovery responses more effective or useful at a hearing or trial.

Presenters

John Snow
Shareholder
Parsons Behle & Latimer

Transcript

John Snow: Hello, my name is John Snow, and I'm with the law firm of Parsons Behle & Latimer. We have offices in Utah, Nevada, Idaho, and Montana. And one of the things that I do is I do litigation. And as a result, I have some background on the use of discovery responses in connection with a trial or a hearing. And that's what today's presentation is going to entail. It's not always clear how a judge is going to treat a unique use of discovery responses. And sometimes, you might be in a situation where you have to come up with a creative way to use a discovery response, to get it into evidence, to get it read into evidence, or actually introduced into evidence. So having a background on the rules and how they impact the use of discovery responses is going to allow you to have a little more flexibility, in how you may get something introduced into evidence. One way is to use the deposition to refresh a witness's recollection or a discovery response, and get the testimony or get the substance of the document in that way. But there's various ways to do it and we're going to speak about that today.
  Another thing though, that it's a little bit frustrating, is judges don't treat discovery responses uniformly, because the rules do not provide specifically how they can or cannot be used. But there is a general reference to the fact that they can be used anyway, as some discovery responses. Anyway, that is permitted by the rules of evidence. So how do you get it in? Well, if the rules of evidence allow it or don't exclude it, you're going to be able or should be able, to get the evidence into, get the document or the discovery responses into evidence in some way. In some instances it's merely read into evidence, in some it could be part of a pre-trial order or have the judge read it, or you read it to the witness while they're on the stand for the jury's benefit. But there's lots of different ways and techniques for this and we're going to talk about some of that today. I'm going to provide some suggestions for consideration on how to use discovery responses, but again, it's dependent on the rule, the circumstances, and the judge on how you get it into evidence.
  The first discovery response that's the most widely used, of course, is the deposition. Through my years of practice, I have found that I've gotten really, really helpful testimony in a deposition, and yet been unable to use it because the question that preceded the answer, was too confusing to make the answer clear. Now, I remember the deposition so I remember what I was trying to do, and I remember the witness's response, but when you read it in black and white, it just doesn't come out the way I believed it to have occurred at the time of the deposition. And it's because there might be a pause in a question, or you might start a question over. And so you have a combined question. You're not sure what question is being answered by the opponent's testimony. Even though this is not a seminar on how to take an effective deposition, it's on the use of a deposition, but fundamentally you have to take a good deposition before it is going to be useful at trial. And whether you're taking the deposition for discovery purposes, impeachment purposes, limitation on testimony purposes, or just substantive responses, you want to have the answers clear. Otherwise, you're really never sure, or what you got by way of an answer in a deposition.
  So make your questions simple, make your questions easy to understand, ask for the narrative because you want to hear what they have to say, but then take their narrative and break it down into parts. When they give you a narrative and some of it is helpful and some of it is not, go back and isolate the portions of the narrative that were helpful. It's also helpful when you're taking a deposition to clearly identify the exhibit. And you can refer to it as Exhibit 3 or Exhibit 4 or whatever number it happens to be. But when you're reading a transcript, it's not as effective with the jury to have to refer to an exhibit than explaining the exhibit. It's better, In my view, if you simply say, I'm going to show you the letter, the June 12th letter, we've been talking about, and to identify it from time to time as whatever exhibit identification it is, and then ask the witness the question. That way, when you are reading the transcript to the witness for the jury's benefit, it is clear. It is self-sustaining. You have a question and you have an answer, and you have a clear question and you have a clear answer. You have clear reference to a deposition, which may not be the same exhibit number at trial. And therefore, by identifying it by name, you have a clear standalone answer with identification of an exhibit that the jury will understand.
  And I realize this is not, a how to course, it is how to use the deposition course, as opposed to how to take a deposition course. But clearly, you have to take a good deposition before it is of any value. So if you're a newbie, take some courses in how to take a deposition or talk to a partner or talk to another associate. But get some ideas on how to ask simple questions. Now, there are some people who are just convoluted in the way they speak, and you can't just answer or ask a simple question. And that's okay as long as you remember to go back and isolate aspects of the responses so that you have a clear transcript of what you want to use at trial. Frequently though, when you take depositions and you hear the response and you think, "Oh, this is going to be dynamite at trial," when you come back and read it, it just isn't. Black and white does not translate to the circumstances at the time of taking the deposition. So what you have to deal with is, is going to be in black and white, and so you need to make sure that the black and white will come out at trial.
  And that's something I actually think about during a deposition is, "How is this going to sound at trial?" And try to reframe my questions in a way to make sure that it is a usable deposition. Now, Rule 30 is the rule on how to take a deposition. That is the rule of taking depositions. Rule 32 of the rules of Civil Procedure is the rules for use of the transcript at the trial or the hearing. And Rule 32 in sub-part A, provides generally, that all or part of a deposition may be used against a party on these conditions. Now, "used against the party" does not mean the party is the witness. It talks about you using the deposition at trial, and this is what you have to have. The party at trial against whom you're presenting the deposition, has to have been present or given notice of the deposition before it is taken. Otherwise, the deposition cannot be used. Now, "party" is defined broadly to also include successors. So don't think, "Well, this company has been bought and the deposition can no longer be used against the successor," that's not correct. It can be used against parties that are in privy. So make sure you don't give up the issue too quickly.
  The other it is, is that it can be used to the extent it would be admissible under the Rules of Evidence, if the deponent were present and testifying, meaning that if the deposition was taken pursuant to 30, the transcript is now as if the witness is present and sitting on the witness stand and about to testify. The testimony, the questions asked, and the responses given can be used as if the witness was present and testified. And then the big sub-part is, that the use is allowed by sub-parts A, two through eight of the Rule 32. And so you need to make sure that you're using it in accordance with Rule 32(a)(2) through eight. But first you have to comply with the first two sub-parts of Rule 32 A, one, and then comply with Rule 32(a)(2) through three.
  Let's go to those specific sub-part rules. The first is impeachment. And this sub-part A, 2 allows a party to use a deposition to impeach any witness who has been properly deposed under Rule 30, and the other elements of Rule A, one are otherwise satisfied. And regarding impeachment, the rule provides that any party may use a deposition to contradict or impeach the testimony given by the opponent as a witness or for any other purpose allowed by the Federal Rules Evidence. Now, we say, "Impeach," and we also use the word "contradict". Contradict and impeach may not mean the same thing. But people you'll see take depositions and they'll try to impeach a witness or give the appearance of impeaching a witness, when the testimony that they're impeaching with and the testimony they gave are essentially the same, and it's not true impeachment or true contradiction. So there is an objection to be heard there, when the deposition is being used against your party. That if it's not contradiction, you need to stand up and make the objection, that it's not impeachment. Because it can only be used for impeachment.
  Now, frequently judges, who are not necessarily familiar with this rule, or haven't really ever tried a lawsuit or used a deposition, and that does happen, may not know what they're supposed to do. And they'll say something like, "You can handle this on cross." Well, there is another rule that comes into play, and that is the Rule of Completeness. And we're going to talk about that in a minute. It's Rule 106 and it's also contained in Rule 32 A. And that just simply provides that when a document is introduced into evidence or used, that the opposing party or the other party has a right to request and receive the so much else of the deposition or the document as is fair under the circumstances. So one of the things you consider when you're getting ready for a deposition is, or excuse me, a trial, is to recognize that some aspects of the deposition may be used, and that you need to educate the judge on the Rule of Completeness, because they may not know, or if a party has designated portions of the deposition, then you need to designate the other portions of the deposition. However, in federal court, that's generally part of the system for pretrial procedures, state courts vary on, on how depositions have to be identified for trial.
  But something to consider is that if the other side designates, you have the right to designate other portions, and the same is true at trial. And that's the point here. That if you know the deposition well enough and you know that there's aspects of a position that clarify what the witness is asked to read, then you have the right to request it. And if it's really important, insist upon it and ask for a break, if you need it, if it's really important. Otherwise, handle it on cross because that's what so frequently occurs when the judge doesn't understand why you are making the request. Now, when you're using the deposition to impeach, another rule to consider is Rule 613. Now, 613 deals with disclosing the statement to the witness or not, prior to impeachment. And the rule provides that when examining a witness about a prior statement, a party need not show it or disclose its contents to the witness, but the party must on request, show it and disclose its contents to an adverse party. Now, frequently, what you're going to be using is something other than a deposition. Because with the deposition, the common practice and the accepted practice is, that you provide the witness with a copy of the transcript, you provide the judge with a copy of the transcript before you read it. But that's not always the case, and it's certainly not the case with non depositions.
  Going on, when extrinsic evidence of a prior inconsistent statement is admissible, but only if the witness is given an opportunity to explain or deny the statement. So if you're using a deposition or any other aspect of it, the opportunity to explain has to exist. Not that you have to give the witness that opportunity because opposing counsel can ask the question. So the opportunity exists. You do not have to clarify it yourself. And that's true with deposition or any other type of extrinsic evidence that's used to impeach a witness. But remember 613, when I was relatively young, I happened to remember this case because it surprised me. But the judge, we had a transcript of a recorded statement that the witness had given into investigators and the transcript had been authenticated already. And so I was asking the witness questions from the transcript without showing the witness the transcript. And the judge noted that, although he prefers the old practice, and he just voluntarily said this. He said, "I prefer the older practice of showing the statement to the witness before you examine them." He said, "With the amendments, I suppose, I'm going to allow you to do that."
  And that was just sua sponte. And it did bother me that I was doing something I didn't know what I... Well, it bothered me because I didn't know what I was doing in regard to the older rule, but the judge let me do what I was trying to do anyway, which was examining this witness. So I got the witness to admit various things in the transcript. But the witness did. So I was okay in that regard. And then the other side examined the witness, also trying to clarify the inconsistencies between the transcript and the witness's testimony. And then we had the person who do the taping of the transcript actually testify how it was done and why it was accurate. Now, we kind of did it backwards in the way things are done, but nonetheless, it got in. I still got a negative ruling in that case, but nonetheless, I learned something. Which is, when you're dealing with statements of a witness, be prepared on how to get it in. And one of the reasons that was helpful for me is, thereafter, whenever I tried to use evidence, I looked at the rules that were most pertinent to that piece of evidence because I didn't want to be embarrassed again. And of course I wanted the client to benefit from my efforts.
  And you'll notice in this these case law, I said, that I've cited here. You'll notice that in the Shefield Case versus State Farm, which is a Georgia case federal court, it says, "The rule does not place limitations on the introduction of extrinsic evidence of a witness's prior statement, such as a deposition transcript," there are limitations with respect to the use of a deposition transcript and as you'll see, you do generally have to show the transcript to the parties. Now, Rule 613 of course, does not apply to a party statement. Rule 613 only speaks in terms of a witness, non-party witness. And the reason why is because, a deposition or any other extrinsic evidence can be used against a party and it's not hearsay. And it applies to a party's statement and it can be used for all purposes, and that's what Rule 32 states, and that's also indicated by case law, which is cited here under Rule 613. And you'll notice in the [inaudible 00:18:08] case, the holding stated, "We note initially that the foundation requirements generally applicable to a prior inconsistent statement, do not apply to admissions of a party opponent." So when you're dealing with a party, you can pretty much have your way, but when you're dealing with a witness, there's a certain element of fairness that has to be recognized and considered when you're introducing a testimony.
  One of the things that I talked about, and when you're taking a deposition and making sure that is clear, there are a various reasons for taking a deposition. One of them is, just one of them is impeachment. But you don't know what necessarily, you don't know what you're going to be able to impeach them on. And if you know my question, why are you taking the deposition? Save the impeachment for trial. But that is one of the reasons for taking a deposition is you want to get the impeachment on the record. For example, you know that the witness from a statement is going to say X, Y, and Z, but you have a document that says the opposite. So you want to show them that document at the deposition together with their prior statement or other statement, to show the inconsistency. My fear of course, is that they'll actually explain it. But that's supposedly one of the reasons to take the deposition is so that if they are going to explain it, you know why before you try to impeach them at trial. On the other hand, if you know that they can't explain it, then why give them a chance to explain the impeachment in the deposition, or alert them to your tactics at trial.
  Other aspects for taking a deposition is boxing in the witness. Make sure, and this applies to experts as well as any other witness, define the universe of facts, opinions, conclusions, whatever the witness knows regarding the topic. Define what the witness is relying upon for their statements, what they have requested or what they have seen. Make sure you have the foundation for the witness's testimony. Review and examine each of these foundational elements to make sure that the witness has firsthand knowledge, or has acquired the knowledge through the ordinary course that would be otherwise admissible. Put it into concrete. Meaning, have them state it not once, but twice and made be three times. So it's clear what they're saying, that there is no question about it. The objection asked and answered, I don't believe I've ever seen sustained. But lawyers make it regularly, but just ignore it. Ask the question until you've got the answer, put into stone so that you know it's available for your use at trial. Have the witness explain and reexplain to the extent reasonable.
  Close all exits. Make sure that there are no other explanations out there. Like ask the witness, "Is there anything else that you could consider that would change your view on what you saw, what you opined upon?" And then follow up with summaries if you can, well, you follow up with the summary and then you'll get the objection. But nonetheless, follow up to make sure you've got it right. When you take a party's deposition, remember, it can be used for all evidence, as substantive evidence as well as impeachment. And remember, there is still a distinction between what is introduced only for impeachment purposes and what is introduced as substantive evidence. Although you rarely see that distinction made, there is still a distinction. But Rule 30 B provides that, when you take a party's deposition, it can be used for all purposes. But one of the things I want to direct your attention to is Rule 30(b)(6). Because we frequently are taking Rule 30(b)(6) depositions of the entity itself. Now, Rule 30(b)(6) depositions are not judicial admissions. They can be contradicted or explained by the company through other witnesses. Although that's the company's position, at the 30 B Six deposition, it can be attacked through other testimony.
  And I've cited some case law here that, well, I guess I just cited the one case. But there's other cases on this topic that note that in this Medtronic's case, the plaintiff's motion to preclude defendant from varying or adding at trial to the testimony that 30(b)(6) witness was denied. And the court pointed out that the deposition testimony of a 30(b)(6) witness is no different than any other witness. Let's go on to the unavailable witness. We frequently take depositions of witnesses that then become unavailable, or we go to them because we know they are not going to be subject to the subpoena power of the court. For example, if you're in state A and the witnesses in state B, you can't compel the witness to come from state, and this witness is in state B, you can't compel the witness to attend trial. So you go to the witness and then take his deposition. And that deposition will be used because the witness is unavailable. That's the easy one.
  You also have situations where there are two parallel cases. Plaintiffs are different, defendants are the same. The defendant in both cases are the same. The defendant's agent is deposed in the first proceeding. The second proceeding can also use that deposition transcript because the witness is unavailable. It can also be used because it's specifically provided for in the Rules of Evidence. But that is just an example of another situation where the witness is unavailable. Because the witness leaves the company and is now unavailable so you can use that deposition. But what is unavailable witness where you've taken the deposition? The witness is dead. That makes them pretty much unavailable. That the witness is more than 100 miles from the place of the hearing or trial or outside the United States. And that's because you cannot subpoena them to attend. The witness has become infirm or ill, or is in prison, and can't make it to trial. That the party offering the deposition could not procure the witness's attendance by subpoena, which also happens to deal with, being outside the jurisdiction in state court. And on motion and when there are optional circumstances, the deposition testimony can be used in lieu of the live testimony. But remember, live testimony is always preferred.
  There are limitations that are provided for in the rules, but very infrequently occur. And those limitations are contained in 32(b)(5), and that's when a deposition is taken on shortened notice, like they're on their way to prison or some other issue, or the unavailability of the deponent, where the deponent could not obtain an attorney in time to represent them, and the deponent still attended, or there was a motion pending for the party not to be deposed, and they're deposed at any event. Those are seldom used, but they are limitations on the use of depositions. Then prior depositions. And this is again where there's two or more... This is the example I was giving a moment ago, where there are two or more proceedings regarding the same parties of the representatives. A deposition taken in one case can be used in the other. And you'll note in sub-part eight of Rule 32(a), "A deposition lawfully taken, and if required, filed in any federal or state court action may be used in a later action involving the same subject matter between the same parties or their representatives or successors in interest, to the same extent if they're taken in the latter deposition."
  And then you have the exception contained in Rule 804 of the Federal Rules of Evidence that, and this is also the same rule in most states, I can't say all states, but the states that I'm familiar with, which states that, with respect to former testimony on an unavailable witness, testimony that was given as a witness at trial hearing or a lawful deposition, whether given during the current proceeding or a different one, and is now offered against a part who had, or in a civil case whose predecessor and interest had an opportunity and similar motive develop in it by direct cross or redirect examination. And an example of that was a witness that was deposed in connection with two actions by two different brokerage firms against a bank. The brokerage firm witness was deposed in one of the cases, but not in the other. The testimony of the broker was instrumental in both cases. So the bank used it against, or excuse me, the brokerage firm that did not take the deposition, used it against the bank in the second case, because the bank was present, the issues were the same in both cases, it involved the same type of trading activity in both cases, and the court permitted the use of the deposition taken of one of the plaintiff's witnesses in the other case, in the second case.
  And I've kind of stated, well, not kind of, I actually have stated, the judges treat the introduction or the use of a deposition differently. The procedures that they like to follow are different. However, there are some fundamental processes that you follow in all deposition. And when you're presenting it at trial, just plan on, making sure that you have a copy of the transcript that is available for the witness so that the witness can see the transcript, whether it be a party or a third party witness. Always have the deposition available. Have the deposition available for the court. And then finally, one of the things that's helpful is to have a copy of the deposition you know you're going to use available for opposing counsel. Notwithstanding the fact that their witness or a witness is standing on the stand and they have a binder for that very witness, and they have the transcript in the binder for that very witness, they can never find a copy of their transcript. And so that delays things while the lawyer looks for their copy of the transcript. And it may take a little sting out of the impeachment.
  But in any event, it is disruptive and it is disruptive in your case. So one of the things to consider is telling the lawyer ahead of time, you're going to use the deposition, have the deposition transcript available. And if they say, "I'll try to find it, hand them a copy." Make sure that they don't interfere with your presentation. If you've taken care of that, that you've got the deposition transcript available for everybody that needs a copy, then you're ready to go forward. And you recall earlier when I was talking about impeachment with extrinsic evidence with respect to depositions, Rule 32 specifically states in sub-part C, "Unless the court orders otherwise, a party must provide a transcript of any deposition testimony the party offers. But may provide the court with a testimony in non transcript form." On a party's request, deposition testimony offered in a jury trial for any purpose other than impeachment, must be presented in non-transcript form, if available, unless the court for good cause orders otherwise. So you need the transcript available.
  And then the way it's generally done is, the way it's usually done is, once you've asked the question, you then turn to the deposition transcript to the specific page and number, you ask them if their deposition was taken on this date, if they had an opportunity to review it, and ask the witness, the question. Well, generally going through that foundational process takes away from the impact of the deposition or the impeachment. So one of the things that you can do when you know you have a witness that you will probably use the transcript to impeach the witness, or if it's a party, well, use it for whatever purpose, you may consider having the witness see the transcript to begin with and confirm that their deposition was taken, that they were under oath when the deposition was given, and that they tried really hard to be truthful when deposition was taken. And then proceed with your examination. And then when it comes time to use the transcript, you don't have to remind the jury, well, it's good to remind the jury that it's the deposition transcript, but you don't have to go through all the foundational requirements so that impeachment can be immediate. So you, bam, you've got the impeachment.
  Now, with a bench trial, you probably don't need to do that. But with the jury trial, and you want the case to flow, consider having the foundation for the deposition done before you get into the impeachment. But if you don't do that, ask the question and get the answer that you're going to impeach. Then go through the process of the deposition foundation, and then ask the question again. And then say, "Look at page such and such." The question posed, the answer. "Was that your testimony? Yes or no." And if they say, "No," that's a problem. Then you ask them if they did have the opportunity to correct the deposition, they didn't correct it, et cetera, et cetera. And then you move forward. Those are just some of the things to consider is when you're thinking and you're getting ready for trial, how am I going to use this deposition in an effective way. And some of it is procedural, as we've been talking about. Some of the ways you can use a deposition at a hearing or trial is to present admissions. Admissible, direct, substantive testimony for impeachment as substitute for the unavailable witness to refresh recollection. If you're in a case and it's been a long time, the witness may not recall, the witness is not a party, does not have a dog in the fight, doesn't care. So when you ask them the question, they don't remember.
  You can just give them the deposition and ask them to read to themselves the testimony to see if that refreshes their recollection. And if it doesn't, you may then be able to read the transcript into the record, because the witness doesn't have recollection of the events. But they gave the deposition earlier when they did have a memory. Past recollection recorded or witness control, and indeed witness control is something to use a transcript for, especially when it's a party. If you have a party that's meandering all over the place, you've got good deposition testimony, you may want to just consider reading the testimony of the witness and read the testimony of the witness to the witness and have them confirm that's their testimony, as opposed to them not answering questions and arguing with your questions or the implications of your questions.
  And I was in a trial, and I don't think this was particularly clever, but they did not want to call the lawyer that I was representing to testify, but they wanted to put the transcript into record. And what they did was they called a witness at the deposition of my client, and asked the witness, and this was a bizarre case anyway, because they didn't have the correct experts to show breach of the standard of care, but they have the witness read the transcript to refresh her recollection, and then to tell the jury what she remembers the witness to have said at the deposition, as opposed to using the deposition, simply, as a party's admissions. I don't know why they didn't do it that way because the lawyer was in fact, the party and they could have done it that way. But I made it the objection to the court that this was an attempt to circumvent the requirements of Rule 32(a), and the judge says, "It can be used for any purpose, including to refresh recollection. So how about it?" And allowed the party to do that.
  I don't know how effective it was. We won the trial but it was on the night before Thanksgiving, and the jurors were in a hurry to get home. They didn't want to spend any time talking about trial tactics. And so I didn't really get an opportunity to find out how effective that was. And because of the holiday, I never did get around to asking the jurors, what they thought about was happening. The next item on this list is the Rule of Completeness. I've already talked about that in part, but Rule 106 is that, if in fairness, the entire document needs to be considered, or other portions of the document need to be considered, then it's Rule 106. And with respect to depositions in particular, it's Rule 32(a)(6) which is, "If a party offers the deposition in part, then the adverse party may require the offeror to introduce other parts that in fairness should be considered together with the part introduced." However, the judges don't seem to really care about this. And it seems to me that the most routine response is, "Covered on cross examination." But if you're serious about it, because you know that there is significant changes later on in the deposition, you need to file a motion in limiting.
  Now, use of interrogatories. Interrogatories can be used the same as any other discovery. In most instances, the answers can be crafted in such a way however, that they're really not very useful at trial. But on occasions, lawyers become so tricky in the way they're drafting their answers to interrogatories that they'll be of no help. They sometimes forget to include all they should have included in their answer. And so what you get is an omission, a significant omission in connection with a claim or defense. And as a result, when you have a witness on the stand, you can ask them about their signing these answers to interrogatories, or if it's a company, you can ask them about the company's signing of these interrogatories, and point out that there is an omission. When asked, "What is the factual basis for your claim that X, Y, and Z occurred," and they left out one of the important elements, you can bring that up with the witness. Now, if the witness is not the signer of the answers to interrogatories, you may want to find out. And this is one of the reasons why you ask, "Who helped in the preparation of these interrogatories?" So that you know how to get this person's commitment to the answers. That they were involved in the preparation, they provided information, they saw the interrogatories, whatever the case may be.
  And you do that before you start to use the inner answers to interrogatories as impeachment. Otherwise, you may get the witness just simply saying, "I didn't approve that answer. I didn't see that answer. I don't agree with that answer. Here is my answer." And it does somewhat reduce the effectiveness of the interrogatory answers. And remember, contention interrogatories are, what's the basis for your contention, that the lawyer committed malpractice? A, B, C, and D and they omit E, F, and G. That helps you at trial when they try to bring up those additional elements of the claim. Or here's one that happens in, I do a lot of legal malpractice claims, and that's one of the reasons why I use this as an example. But you have a case, and this is so common in legal mal, where you'll have a claim of negligence, and you'll also have a claim of breach of fiduciary duty. Although a lot of people don't realize those are two separate causes, I mean, they're two separate cause of action, but don't realize the elements are not exactly the same. They're not the same.
  Fiduciary obligations are different than standard of care obligations. And fiduciary obligations include an element that is not available. But lawyers will frequently think if they committed malpractice, they also breached their fiduciary duty because there is an obligation is a fiduciary to act with reasonable care. La, la, la. I have two causes of action. Except that the first claim, the torque claim, the negligence claim consumes the fiduciary claim. You only get one bite at the apple. You don't get two to bring the same facts before the jury and judges will dismiss the fiduciary claim. And of the reasons why you want to do that is because in fiduciary claims, you can also recover attorney's fees whereas in torque claims, you cannot. When you have a breach of fiduciary duty, you regularly say or request for attorney's fees. That's one of the reasons to get rid of a fiduciary claim. So in an interrogatory you ask, "What's the factual basis for your claim, the lawyer breached their fiduciary duties." And so frequently you'll see, see above. Your answer to interrogatory number one, where they set forth the negligence claim. They're not the same. And so you can then file a motion for summary judgment.
  Same thing is, and not the exact same thing, but the same thing happens at trial. Where you get cute with answering interrogatories and you'll omit facts that can be used to impeach a witness, that is associated with the party who was being interrogated through the interrogatories. But contention interrogatories, and I've cited some case law and contention interrogatories, because you frequently see they're premature and sometimes the judge will agree with that. But when you file a complaint, you have to have a factual basis. And what you're really asking with the interrogatories is state your factual basis that had when you filed the complaint. And then you request supplementation under the rules of supplementation to the answers. And remember, if you really want to use answers to interrogatories at trial, make sure you got usable answers. You frequently will see these general objections. Clearly general objections are inappropriate answers to interrogatories. And I would say there's a ton of cases, but cases aren't weighed by ton, but there are hundreds perhaps, and that may be of an overstatement, more than 100 cases, that specifically note general objections are inappropriate. Also the objection has to be specific to the interrogatory. But here's the important part of what I wanted to say.
  Each interrogatory must, to the extent it is not objected to, be answered separately and fully in writing. Therefore, you can't incorporate other documents, other answers. If you've got a good inner interrogatory and you think you're going to get a good answer to it, that could be useful at trial, make sure that you have a interrogatory that doesn't incorporate other things or exhibits because it becomes less useful. If you have a standalone answer and you can insist upon it, based upon the case laws I've cited, then you have a more usable piece of information with the answers to interrogatories than you would be, if you did not insist upon appropriate answers. Again, Rule 613 may have application, but generally not because the interrogatories are only addressed to a party, generally not to third party. But there are occasions where the interrogatories were used and signed, and that party is dismissed from the case. And then you may have an interest in using the interrogatories of that party.
  Let's see. This Cole case it's a June 8th, 2009, but it's one of the few cases that dealt with application of Rule 613 to answers to interrogatories, and the court noted most cases applying 613 appeared to involve situations in which the person who allegedly made the statement, does not otherwise have access to the content of the statement. Meaning that, for example, the case where I gave earlier, where the interviews were recorded and transcribed by an investigatory agency and the witness has never had access to the statements. That would clear be a 613 application. But the court went on and said, "Such as when the statements are made by insurers to their insurers or recording of conversations or statements have been made without the speaker's knowledge," which is where these frequently will come in. But the court went on to conclude as applied to interrogatories, "As reflected in deposition, experts provided to the court as clear plaintiff's counsel wanted defendant's counsel to provide a copy of Alice's own interrogatory answers to both plaintiff's counsel and Alice. Thus plaintiff's counsel's request did not track the rule. And the rule requires that you only provided to counsel not to the witness." And so the court overruled the objection because the request, under Rule 613 was too broad. And so the court concluded that because the opposing counsel never properly invoked 613, the request that the interrogatory answers be shown to the witness was overruled and sustained on appeal.
  But the real reason I'm shouting this case is not only because it shows you have to comply with 613, but that it applies to, and can apply to answers to interrogatories. Let's see. Again, answers to interrogatories are not judicial admissions. The responding party can contradict a response to an answer to interrogatory. I mean, an answer to a complaint would be a judicial admission, but interrogatories deposition answers are not judicial admissions. They're just discovery. But you can use them for impeachment, you can use them for substantive evidence, it can be refuted, but it still comes in and it still powerful. And then one of the ways that people get around answering interrogatories, so that they're not very useful at trial, is to offer business records. Well, I'm fine with offering business records, but I want you to tell me which business records I'm reviewing, so that if I've got a witness at trial that says they got it from records A, B, and C, and those weren't disclosed, I want to know that.
  And so when I get a response to an interrogatory that does not specify the records to be reviewed, insufficient detail to enable me to locate and identify the document, I make the request so that I know exactly which documents they're referring to. Another thing they do is give you a wholesale response. Give you thousands of pages. And then when you file your motion to get something more, or you send your demand, they say, "My goodness. I've given you so much information. How could you possibly complain?" Well, the problem is, you're, putting the burden on me to sift through your documents, to find out what little nuggets you have in there. And that's not what the rule require. The rule requires that the burden be the same as for both parties. If the party producing the documents has better knowledge of the documents of where the information is, then they can't produce the documents wholesale. And in any event, they have to give specific directions on where to find those documents. So it can still be helpful.
  And again, when you're using an answer to interrogatory to impeach a witness, make sure that it's clear to the jury, what an interrogatory is. That you sent these interrogatories out under the rules, the rules specifically allow you to use this method to get sworn testimony, and that they had an obligation to use reasonable effort to give you sworn testimony. And this is what you got. And then you impeach the witness with them. Now, one of the things that you do see with interrogatories is, frequently, people will them as exhibits. They'll list the interrogatories and frequently, the depositions, as exhibits. Like depositions answers to interrogatories, generally, do not come into evidence. Generally, you only read the portion of the deposition transcript, excuse me, the deposition answer that you want the jury to hear. And I'm not sure why a party would want to introduce the entire answers to interrogatories anyway, because most lawyers when drafting the answers to interrogatories, argue their case in their answers to interrogatories. Why would you want the jury to have that take back to the jury room with them. But you see that all the time, where they put their answers to interrogatories on as an exhibit.
  I have never seen a judge allow answers to interrogatories to go to the jury because they do contain information that is not pertinent frequently. So keep that in mind that the answers to interrogatories are not exhibits. They are records that you read from to impeach a witness or to get specific information. Now, if you feel that under the rules, because it is a document, you have an obligation to identify it, then identify the specific interrogatory answer that you're going to use, not just a wholesale definition. And then just to show how you're going to use it, sometimes you see it will be read to the jury. Now, the final discovery response that provides help in proving a case or defending a case is the request for admission. Before I go in too far, you'll see case law, and there's a lot of case law that says this, that request for admissions really aren't discovery tools. That they really just are designed to limit issues for trial. Well, in fact, all discovery can lead to that like when you're taking a deposition of a witness, you're limiting issues on what the basis for their negligence claim is, for example. Is it based on A, B and C or just A and B? So there is a limitation there. But you do see a lot of criticism for requests for admissions.
  And I generally, because of the limitations on the rules, I do not ask the interrogatory state the factual basis for each answer to request for admission that was not an unequivocal admission. Because each one of those responses to a request for admissions now count as interrogatories. What I use requests for admissions for generally, is to have specific events or records identified and agreed to. And I actually give a heads up to the lawyer that that's what I'm doing, so that you actually get something out of your answers to your request for admissions, so that they know that when you're asking and agree that page numbers one through 1,000 are the medical records. Or agree that the accident occurred on this date or at this place or at this time or agree that these are all the transactional documents. Whatever the trial happens to be, you use it to limit the scopes for purposes of trial. And I give other lawyer a heads up saying, "I'm not doing this to do busy work. I actually trying to limit some of the issues for trial and I think it would be helpful if you actually sent a request to me so that we could probably get some of this narrowed down." I do that, but really don't actually invite them to give me a discovery request.
  But you can ask facts and the application of law to the facts, which is a very powerful way to limit the scope of issues at trial. But when you get the answers, you can use them at trial. Now there's various ways to do that. One is you include them in the pretrial order, where you have the uncontested facts that the judge reached to the jury, or you can still do that, but it could also be the one who reads it to the jury. And you can read it with any witness that you want. That it's a admitted fact in this case that. Then ask the witness a question about the admitted fact. So it is a matter of timing, and there is case law and I think I've cited some case law in here that states that timing is so important in trials, that it should be up to the party as to what time or when, at what part of the trial they will actually use the request for admissions and introduce them into the record because they are the ones in charge of timing, not necessarily the court. But again, that's something you can address with a motion in limine as how the court wants to handle requests for admissions and your desire on having on how they would be read of the jury.
  And requests for admissions can be used, let's see. An admission of this rule, let's see. A matter admitted under this rule is conclusively established unless the court permits the admission to be withdrawn or modified. So it acts as a judicial admission. It can't be changed without a motion. And so unlike answers to interrogatories or depositions, does have the effect of eliminating an issue. And you do see this in multi-party cases where one party has admitted a fact in response to request for admission, and party wants to read it into the record. And it may splash on all of the parties. A request by one party is clearly not binding on all the parties. So when a party does try to use a request for admission at trial, you do want to request the judge to give an instruction to the jury, that this is only binding on witness X and cannot be considered as to the other witnesses for any purpose. And then in closing arguments, you may want to mention that, you may want to mention it in the jury instructions, so that it's clear. On the other hand, if you overemphasize the situation, it may be negative. That you've put too much emphasis on it. But the fact is it generally cannot be used against another party.
  There is a question as whether or not a denial of a request for admission can be used. There are some cases saying that a denial, is just that. And therefore, it's not an admission that can be by a party. Other courts have indicated that a denial of a request for admission can be used for impeachment. That this fact was provided, but more cases than not will say, "No. The sanction for denying a request is the award of fees," and they will not allow a denial of a request for admission into evidence. Again, this is something that can be dressed by a motion. The court noted the reason for not allowing denial of admission is, the purpose of request for admissions is to narrow the issues for trial by identifying those issues and facts as to which proof will be necessary. A denial is not a statement of fact, it is simply indicates the responding party is not willing to concede the issue. As a result, the requesting party must prove the fact at trial, and you can't use the request for admissions. And that's a California case that's in the materials that have been cited.
  And finally, I already touched on this and I said, I would touch upon it at the end, is the motion in limine. The motion in limine can be used for getting evidence in. And the judge doesn't want to spend the jury's time listening to procedural issues. Generally, you'll hear a judge give a statement frequently in front of the jury, that says the jury's time is as valuable as everybody else's, and we're going to do everything we can to expedite this trial so that you can get out of here as quickly as you can. And so taking care of procedural issues in a motion in limine before the trial starts will be appreciated frequently by the court. And you can start your motion in limine with, so that we don't wish the jury's time during the trial on procedural issues, "I'm making a motion that you allow me to do A, B and C. And this is how I propose to do it. If there's objections to this process, let's hear them and vet them now." And the judge will frequently appreciate that. Some judges who don't like to do work won't appreciate it, but they just try to put it off until trial.
  But most judges that I've been in front of appreciate motions in limine of that nature, where you're trying to save jury time and to avoid procedural issues during trial. They don't say, "This is the improper use of motion in limine," and in part, because it's not an improper use. Now, just to summarize three basic sources of discovery. Depositions interrogatories request for admissions. Depositions can be read in as impeachment and substantive evidence as to a party. Interrogatory answers can be read into evidence, substantive evidence as to a party. Requests for admissions. The admissions can be into evidence as a conclusive admitted fact. How you put it in will depend on your own timing, same as true with a deposition interrogatory. But generally, there's a clear witness that you're going to use that with, frequently, the signer of interrogatories or the deponent. Although you can use deposition testimony to refresh a witness's testimony, even if it's not the witness's deposition, you can use it for any purpose. And if the witness is having some difficulty, you might suggest allowing them to read the transcript of another witness to see if that refreshes their recollection. Judges may balk at that. And that's, again, something would be difficult to anticipate before trial. It's not something you're necessarily going to be able to address with a motion in limine, but if you know it's going to happen, you can.
  So that's the presentation. In my years of practice, I've used discovery responses probably in every trial I've ever had, and they are valuable and they are not only getting substantive evidence in but impeachment, clearly they're valuable for discovery tools in limiting the scope or universe of information that you have to look into. But I appreciate the opportunity to speak with you today and thank you very much.

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