Fury Bailey - Personal Injury - Wrongful Death Attorneys

FRAMING THE DAMAGES CASE

“Answering Interrogatories”

By C. Steven Fury

Fury Bailey

710 – 10 th Avenue East

P.O. Box 20397

Seattle , WA 98102

(206) 726-6600

The importance of interrogatories to developing a damages case are two-fold. The first can be summarized with the old saw: “You only get one chance to make a good first impression.” The more detailed and thorough you are in providing persuasive damages information the more it will appear that you are organized, prepared and ready for trial.

The other issue is purely defensive. Careless errors in answering interrogatories can undermine an otherwise flawlessly prepared damages case. Clients need to understand that close is not good enough in answers to interrogatories that are submitted under oath. The answers must be complete and accurate, or else the errors can be used to impeach your client.

With these two imperatives in mind: give them everything they need to know to understand how strong your case is and do not make any mistakes that they can use against you, I offer these few practical suggestions in answering interrogatories submitted by the defendant concerning damages.

1. Investigate Your Client.

You know from the moment your client hires you, if the case is filed, the defense will ask interrogatories and generally what those interrogatories are:

•  All medical treatment in the client's lifetime;

•  All employment in the client's lifetime;

•  All criminal convictions in the client's lifetime;

•  Military history;

•  What injuries and damages are claimed, including special damages for medical expenses and lost earnings and general damages;

•  What other lawsuits or claims have been brought.

Knowing this, from an early interview with my client I begin gathering the information to answers these interrogatories and to prove the damages case by establishing both what the client was like before the injury and because of it. To this end get a detailed medical history, collect the medical records, review the medical records to find any health care providers the client missed and then get those records. Get the medical bills. Get employment records. If the client either does not remember or has had multiple employers, get the record of all employers from the Social Security Administration. Get tax returns from the IRS. Get military records. Interview the client concerning criminal history and claims history.

Some clients can give a thorough counting of all this information, some are what are referred to by physicians as “poor historians.” I have, on some occasions, gone so far as to hire an investigator to do a background investigation of my client of the sort that the defendant might do to dig up “dirt.” I want to know what's there so I can properly answer interrogatories.

2. Full Disclosure.

I have come to expect, particularly in any complex case such as a medical negligence or product liability case, that the defense will object to nearly every interrogatory or request for production and provide little or no information. A knee jerk reaction to this can be to respond in kind. I believe that to be in error.

First, if I do not fully answer interrogatories, it is difficult for me to go to the Court with a straight face and ask the Court to order the defendant to fully answer interrogatories.

Second, if I try too hard not to give up information, I can give incomplete or inaccurate answers which can be used to impeach my client at trial and cause far greater harm than the information itself. For example, I once had a client who responded to the inquiry about prior civil lawsuits by identifying one complex lawsuit only. It turned out he had been sued for collection once as well. He failed to disclose it. The entire litigation became an issue of my client's integrity in failing to disclose what to him was such a small matter that it didn't bear mentioning.

Also, failure to disclose information can lead to exclusion of evidence at trial. In Hampson v. Raymer , 47 Wn. App. 806, 737 P.2d 298 (19___7). In that case, the plaintiff had not disclosed a carpal tunnel condition which he later claimed was related to the accident. He then had surgery before the defendant had an opportunity to have the issue of the causal connection of the carpal tunnel surgery to the accident evaluated by a defense medical chart review or examination. Because this surgery was performed before the defendant could decide whether it needed a defense medical examination, the Court excluded all evidence of the damages from the carpal tunnel syndrome. This could have been easily prevented by full disclosure.

3. Affirmative Non-Disclosure.

If there is something you do not want to produce and do not believe you have to, bring a motion for protective order, do not wait for the defense. There are interrogatories or request for production that seek information that is truly private and should not be produced. Examples of such information in cases in our office are psychiatric treatment records in a strictly physical injury case, credit card records, cell phone records, information concerning the wealth or poverty of the plaintiffs (as opposed to income) such as financial statements, loan applications or bank accounts; medical records of an unrelated condition which are truly personal and private such as gynecological records. There are others. In this case, prepare as soon as you know that you do not want to produce them to bring a motion for protective order. A declaration from your client as to why it's private. Get a declaration from a psychiatrist as to why this disclosure would be harmful. Review the records yourself to be able to represent to the Court that they will not lead to admissible evidence. You stand a much better chance of preventing discovery of these documents if you move affirmatively and bring a motion than if you object or avoid answering the question.

One reason developed in the area of documents that need not be produced are reports of the PIP examinations. Harris v. Drake . I think it's important that you decide early what position you want to take concerning PIP examinations. Sometimes they can be helpful, but if you fail to disclose them, you may not be permitted to call the witness.

4. Privilege Log.

I am quite insistent on getting a privilege log of documents withheld under CR 26 if you are going to withhold any documents from production, identify them and say especially why you are withholding them.

5. Special Damages.

Answering interrogatories about special damages is where you can really show your preparation. If you have all the medical bills, assemble them, organized, produced with a chart, if you have a specific calculation of your lost earnings, you show the defense that you are prepared to present the case at trial or to an arbitrator. If you say something like “We'll tell you later” you show that you are not ready and issue an invitation for the defense to take the initiative.

6. Description Of Injuries.

Some interrogatories will ask for a detailed description of the injuries the plaintiff claims were caused by the accident. Take this as an opportunity. Your client will have to present her own damages at her deposition and at trial. The interrogatories is the first step of preparing her to testify. Have her write out as best she can a list of every body part where she has symptoms, everything that makes the symptoms worse, everything that makes the symptoms better, frequency of symptoms, activities that the symptoms have changed or interfere with. Take what the client has written, interview the client in craft a detailed answer.

The answer does a number of things. First, it shows preparation. Second, it provides the client with a roadmap to use during the deposition. You're not disclosing anything by having your client bring to the deposition her answers to interrogatories. She can have this in front of her to assist her in testifying, just as the defense medical examiner has his report to refer to when he has forgotten your client's age, hair color or race.

At the end of the answer, just in case you missed something, say “See also medical records.”

7. See Also . . .

Make liberal use of CR 33(c). I do. If some documents that I am producing touch on the answer, I always end the answer with “See also [identify the document].” The defendant can then never claim that you failed to disclose any information that is contained within these records. The reference to business records is permitted by the rule.

8. Objections.

Object to any question that is even vaguely objectionable. I do not suggest that you bring a motion for protective order on every one of these, but only when you are truly not withholding information. Otherwise state the objection and then give the answer preface by “Without waiving the objection . . .” This makes it harder to read the answer back as impeach the client at the time of trial.

9. Answers For Poor Historians.

Many questions will ask for information back into ancient history: “List every injury you have ever suffered in your entire life.” Besides the objection that the question is overbroad, whatever answer is given “Without waiving the objection” should be prefaced by “To the best of my current recollection.” If the recollection is refreshed later by a previously unknown document telling that your client stubbed her toe as a child of six, she then can have had an innocent lapse of memory, rather than being dishonest and trying to hide anything.

10. Refer To Other Answers.

Whenever appropriate, refer to another answer: “See also answer to Interrogatory No. ____.” That interrogatory also has a reference to yet a third interrogatory, making any effort to read a crisp answer back to impeach your client at trial impossible.

11. Refer To Insurance.

No defendant will want to read an answer to an interrogatory that refers to the fact of insurance or the amount of insurance. This is an inoculation against having the answer read back at trial.

12. The Amount Of General Damages.

For years I feared answering the interrogatory requesting that the plaintiff state the amount of general damages. I feared answering it too low because I might leave money on the table. I feared answering it too high because it could be read back to my client at trial and make her look greedy. I feared that the client's condition might change making the answer blatantly absurd. I have since come to this solution: jury instructions and jury verdict research. My answers are as follows:

General damages are incalculable. At trial, the Court will instruct the jury that the law has not furnished us with any fixed standards by which to measure general damages. WPI 30.01.01. For the purpose of answering this interrogatory, the plaintiff informs the defendant that juries in the state of Washington have awarded to plaintiffs suffering similar injuries in the past the sum of $8,000,000. Washburn v. Beatt Equipment Co. , 120 Wn.2d 246, 840 P.2d 860 (1992).

Let them read that to the jury.

Copyright © 2005 FuryBailey.com - Sitemap