Lawyers - Avoid Drafting Written Discovery That Birds Should Pee and Poop On

To the lawyers reading this blog- A practical approach to written discovery

The way we are drafting interrogatories is stupid. I am not sure how this discovery tool has devolved into a piece of junk.

I.  INTERROGATORIES - 

There is a way to draft interrogatories so that you find out information and there is a way to get worthless information in a format that deserves to be torn into pieces and used for lining a birdcage. 

A.  BIRD CAGE INTERROGATORIES -

These are interrogatories which all lawyers handling litigation and many of us have drafted. They are open-ended, long, and impossible to answer. 

Here is an example of a bird cage interrogatory -

"State all reasons you believe you were sexually harassed, the name of all employees who witnessed all form of harassment and everyone who has knowledge of the harassment, what they will testify about the harassment and what they will say about how the harassment affected the Plaintiff."  

I look at the questions and sigh. I don't know what everyone knows. Sometimes in trial, they speak their own mind and I don't know what they will say.  This unwieldy question would be hard to use to impeach a witness.  "You said in your interrogatories that A, B, & C would say E, F, & G.  Actually witness B said X."  Really?

B.  Worthwhile interrogatories -  in asking worthwhile interrogatories, you ask short, direct questions that can be answered by simple answers or yes or no.  "Was the color of the traffic signal when you went through the intersection red, green or amber."   You may be able to use this in trial.

II.  REQUESTS FOR PRODUCTION OF DOCUMENTS

This is where the crux of written interrogatories should be focused. In requests for production, you ask for specific documents, which by and large you need. 

Everything else comes from depositions, interviews and educated, rational conjecture. I will talk about rational conjecture in a later post. 

I fear lawyers want to stump opponents or trick them, but their premise is faulty.  All questions should have a solid purpose and tricking the other side into having to answer a long, and obfuscating inquiry.  Jurors don't like tricky lawyers. 

We make things more complicated than they need to be.  I am happy I don't get paid by the word, but I wonder if some other lawyers are. Lets cut out the crap and stop playing games. Cases work better that way.