By: Jamie Collins
This is undoubtedly a topic you have read and heard a lot about during your career as a paralegal. From time to time, we find ourselves breathing in a deep, self-indulgent sigh when a new set of discovery requests has arrived in our mail pile. Although discovery can be a daunting and tedious process, it is imperative to keep in mind that it is fundamentally the most important aspect of your client’s case. After all, it addresses the 5 essential W’s: the Who, What, When, Where and Why for the case. It is the foundation upon which the claim will be built. Therefore, it is essential to create a solid groundwork which will help prepare your client for deposition and the case for settlement or trial. When preparing your client’s discovery responses, here are some tips to keep in mind:
1. Avoid the Retroactive Vacuum. One sure way to place yourself (and the client) in a retroactive vacuum is to not properly work up a file prior to entering the discovery phase. The more proactive you are in working up a file in advance of the discovery process, the more streamlined your case will be and you will drastically increase the likelihood of settlement. Essentially, this means that the discovery process begins in preparation before it begins in reality. If you have not obtained the proper documents, records, etc., you will have nothing to provide in discovery. This is not a good position to be in. Understandably, there are times when this simply cannot be avoided. Examples of unavoidable circumstances would be: (1) a case where the client has ongoing treatment or losses or (2) you were retained just before the client’s statute ran. In cases where this cannot be avoided, you need to seasonably supplement any new information and/or documents you receive upon receipt. This typically involves sending documents in a piecemeal fashion until all have been provided. Avoid the retroactive vacuum by properly working up a file from its inception.
2. Insure That the Client Understands the Importance of Their Discovery Responses and How They Will be Used in the Case. Your client cannot fully understand or appreciate how important their discovery responses are and why their efforts in the preparation of those responses is important — unless you tell them! The best way to do this is with the letter you send to the client with the discovery requests. The letter should not be vague. It should not only set forth the importance of the client answering the questions honestly, accurately and thoroughly, but should also outline the different topics that are generally inquired about in discovery and why each topic is a legitimate line of questioning. Topics you should cover are: medical history; criminal history/traffic citations; lawsuits/proceedings; and request for production of documents. Put the client on notice of the importance of their discovery responses. The merit, value and outcome of their claim will increase or decrease significantly based upon their responses.
3. Blanks or Dashes Do Not Consitute a Response. It is completely unacceptable for a client to leave a response blank. The client needs to indicate whether the response is “I do not know,” “I cannot remember,” “I cannot recall” or “not applicable.” If a client fails to answer a particular question or places a dash where the response should go –you need to clarify the response with them. Do not assume a dash means no. Often a client will put a dash if they find the question offensive, think they should not have to answer it, they do not know the answer, cannot remember the answer or it does not apply to them. The easiest way to avoid blank responses and dashes is to address this topic specifically in your letter to the client when you enclose the discovery requests. Be direct and explain the standard for their responses. Use language that is clear and easy to understand.
4. Do Not Allow the Client to “Pass the Buck.” Although it is proper for you to assist the client with the preparation of their discovery responses, it is ultimately the client’s job to complete their discovery responses –- not yours. Do not allow them to pass the buck. The client is the one answering the interrogatories under oath. If the client seems mistaken or confused regarding their key role in the preparation of their discovery responses, they need to be immediately corrected and steered back on course, i.e., you completing the interrogatory responses for the client would be the same as the client taking an oath before the court to tell the truth and then having you get on the stand to testify for them. They are under oath and they need to answer the questions.
5. Extend an Olive Branch. You should personally extend an invitation to the client to confer with you regarding their discovery responses. This is likely their first experience with the discovery process and it can be confusing to a lay person. Make a call to the client or make it very clear in your discovery letter to the client that they should call you directly if they need any assistance with the preparation of their responses. This will save you a lot of time because, ultimately, you will be the one finalizing their responses. More often than not, if you extend an olive branch, they will take it. Be accessible.
6. Review the File for Inconsistencies. This can be a tricky one. It is hard to stop someone from being inconsistent, especially when you do not know the details of their life. What you can do is try to catch anything that raises a red flag to you as being untrue. One way to do this is to compare all notes in the file, the content of the investigation folder, and the initial intake form for any inconsistencies in your client’s responses. Also consider any discussions you have had with the client previously. If your intake or initial questioning does not cover these areas –perhaps it should. Most of the time, clients are not intentionally inconsistent on their responses, they simply do not understand what is being asked of them. Make sure they truly understand the questions. For example, a question regarding collateral source payments is not something an average person is likely to understand. Make notations and place post its on the discovery requests to assist the client, i.e., for a question regarding exhibits or expert witnesses, place a post it that you will answer the question for them. They will appreciate your forethought and guidance.
7. Make it a Pont to Go Over the Client’s List of Medical Providers (or Other Lists) and Do Not Use Absolute Terms. Do not make the mistaken assumption that you are aware of all of your client’s treating medical providers or any other key lists of information. Often times the client will list additional doctors or facilities you had no knowledge of from previous discussions. If the client responds to a medical provider question (or any other question seeking detailed lists) with “my attorney has this information,” you need to call the client to verify the information you have in your file is in fact accurate and up to date. Make sure there have been no subsequent providers between the time you last talked to the client and the completion of their interrogatory responses. Also, avoid stating your client’s answers or lists in absolute terms. Always add a qualifier to allow your client “a way out” in the event they remember something later or need to add to the list in the future, i.e., to the best of my recollection (and then provide your client’s answer or list).
8. Utilize Online Resources to Avoid Perjury and Pitfalls. There are many online databases and resources you can utilize to insure that your client is being forthright in their discovery responses. This is especially true with regard to driving records and criminal records. Be sure to conduct a search on the available court and criminal databases available in your state. The other attorney will likely have already conducted an online search and will have these documents waiting to potentially impeach your client. It is also imperative that you check your client’s facebook or myspace page (if they have one) to help your attorney steer clear of any issues which may arise at deposition or trial. Requests for printed facebook or myspace pages and pictures are becoming fairly common in recent times.
http://www.Accurint.com : your firm will have to complete a lengthy application because this site is solely for use by law enforcement, debt collectors, attorneys, investigators, etc., but looking up a person’s address history is a mere 25 cents and the most expensive asset and criminal searches are $4-$8. You can also look up contact information for a person’s neighbors and/or relatives for investigation and interviewing purposes.
9. Polish to Make a Good Impression. Although your client is the one answering the interrogatories under oath, that does not mean you cannot help the client to polish their responses to make a good impression, the same way you would polish a resume before sending it out. Examples would be correcting slang terms such as “ain’t, got, can’t, won’t, don’t, didn’t” or misspelled words. You should complete any incomplete thoughts or sentences. Help the client put their best foot forward by polishing their responses.
10. Objections, Objections, Objections. Insure that the proper objections are made. Attorneys typically take two approaches to answering interrogatories. The first type of attorney will object. The second type of attorney will object and then answer. The objection guards your client against potential issues with their case or trial. The latter allows the client to provide the information requested without waiving their right to object to the information sought. If responding to the interrogatory could potentially harm your client or their case, the first stance is usually taken. Develop a knowledge and understanding of the standard discovery objections and learn your attorney’s preferences to avoid creating unnecessary or appealable issues.
Reprinted with permission from the Institute for Paralegal Education • 1218 McCann Drive • Altoona, WI 54720 • © 2011, Institute for Paralegal Education, a division of NBI, Inc. All Rights Reserved.
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