The value of a personal injury case is often dependent upon how well the case is litigated. The skill and effort of the litigating attorney can make the difference of millions of dollars to the client. As a younger attorney, I learned from my senior partner that the more time and effort I put into a case, the better the results for my client. I’ve seen this rule play out in thousands of cases and believe it to be 100% true.
One of the most important, but often undervalued, elements of litigating a personal injury case involves responding to interrogatories. Interrogatories are written questions that either the defense or the plaintiff involved in litigation can send to the opposing attorney (assuming the case is being handled by an attorney). The opposing attorney must then prepare answers or objections to the interrogatories within thirty days. According to Rule 1.340 of the Florida Rules of Civil Procedure, “Interrogatories may be served on the plaintiff after commencement of the action and on any other party with or after service of the process and initial pleading on that party. The interrogatories shall not exceed 30, including all subparts, unless the court permits a larger number upon motion and notice for good cause.”
I have witnessed many young personal injury attorneys who don’t understand the basic purpose behind interrogatories. Specifically, interrogatory responses are intended to be used at trial. The most common uses at trial are to disprove an element of the claim, prove a defense, or (here’s the big one) impeach the plaintiff’s credibility. It’s important to understand that our answers to interrogatories cannot help us at trial. They are weapons the defense can use against the plaintiff, but they are not going to help us in the least. For that reason, it’s important to never attempt to use interrogatories to sell the case. When answering interrogatories, the goal is to give the defense as little ammunition as possible to use against our client.
How do we do that? First of all, we diffuse the power of the interrogatories answers in our answer to one of the first questions. Almost inevitably, the defense will ask, “Who is answering the interrogatories?” It’s very important to answer that question by stating the clients name, “with assistance of counsel.” By adding the phrase, “with assistance of counsel,” the client has a way out of any mistakes made. The reality is that if there are mistakes made in the interrogatories, it is almost always the attorney’s fault. The attorney has not properly addressed the questions with the client.
Secondly, only answer questions you must answer. If there is a valid objection to the question, state the objection. Interrogatories must be reasonably calculated to lead to admissible evidence. Not only that, parties are limited to 30 questions, including sub parts. Many attorneys ignore the rule about sub parts, but I recommend counting all questions, including subparts, and objecting to everything that exceeds 30.
Equally as important, don’t give answers to questions where the information can be derived from another source. I have seen too many cases go downhill because of responses to questions about prior injuries. Rule 1.340(c) says:
When the answer to interrogatories may be derived or ascertained from the records of the party to whom the interrogatory is directed or from an examination, audit, or inspection of the records or from a compilation, abstract, or summary based on the records and the burden of deriving or ascertaining the answer is substantially the same for the party serving the interrogatory as for the party to whom it is directed, an answer to the interrogatory specifying the records from which the answer may be derived or ascertained and offering to give the party serving the interrogatory a reasonable opportunity to examine, audit, or inspect the records and to make copies, compilations, abstracts or summaries is a sufficient answer. An answer shall be in sufficient detail to permit the interrogating party to locate and to identify, as readily as can the party interrogated, the records from which the answer may be derived or ascertained, or shall identify a person or persons who will be available to assist the interrogating party in locating and identifying the records at the time they are produced.
This is extremely important. When the defense asks about prior injuries, cite Rule 1.340(c), quote it, and refer the defense to the plaintiff’s prior medical records. If you don’t have the records before the answer is due, provide the names of the medical facilities from which the records can be ordered. DO NOT ATTEMPT TO LIST ALL OF THE PLAINTIFF’S PRIOR INJURIES. This will get you in trouble more often than not. The easiest way for a defense attorney to ruin your case is by showing that you failed to disclose prior injuries. By referring the defense to all prior medical records, you are eliminating this problem.
Of course, you have to question your client thoroughly about all prior medical facilities. If you leave a medical facility out of your answer, this could negatively affect your client’s credibility and subject your client to impeachment upon cross examination. So, it’s very important to go through a list of possible previous medical providers. I always ask the following questions, which are designed to jog the client’s memory:
Have you ever been an emergency room? When and where?
Have you ever been hospitalized? When and where?
Have you ever broken a bone? When and where were you treated?
Have you ever had a primary care doctor? Who?
Have you ever been a Patients Fiirst or other walk-in clinic? When and where?
Have you ever had x-rays? When and where?
Have you ever had a MRI? When and where?
Have you ever had a CT scan? When and where?
Have you ever consulted a neurologist? When and where?
Ever been treated for nerve problems? When and where?
Ever been treated for carpal tunnel syndrome? When and where?
Have you ever consulted an orthopedist or a bone doctor? When and where?
Have you ever had a sports injury? When and where were you treated?
Have you ever had a slip and fall injury? When and where were you treated?
Have you ever injured yourself in your own home? Slipped in your bath tub? Hurt yourself in your yard? When and where?
Have you ever seen a chiropractor? When and where?
Have you ever seen a massage therapist? When and where?
Have you ever seen any doctors complaining of neck or back pain?
Have you ever twisted your back? When and where did you treat?
Have you ever been in any other automobile accidents? When and where? Did you receive any treatment?
Have you ever injured either of your arms? When and where did you treat?
Have you ever injured either of your legs? When and where did you treat?
Have you ever suffered headaches? When and where did you treat?
Have you ever suffered dizziness? When and where did you treat?
Have you ever suffered numbness or tingling in your arms or legs? When and where did you treat?
Then, if they are from Tallahassee or close to it, I ask them about specific local facilities in the Tallahassee area:
Have you ever been to Tallahassee Memorial Hospital? When and for what?
Have you ever been to Capital Regional Medical Center? When and for what?
Have you ever been a member of Capital Health Plan?
Ever been to Capital Health Plan’s Urgent Care Facility?
Every been to Lincoln Neighborhood Center?
Every been to the Bond Clinic?
Remember to keep your answers brief. One word answers are the best. Very rarely should an interrogatory answer be more than once sentence, and even then the sentences should be as short as possible. Brevity is the master of wit. In answers to interrogatories, brevity is paramount, because the shorter the answer, the less ammunition you are giving to the defense. For instance, if the defense asks, “Describe the incident described in the Complaint in detail and all actions taken by you to prevent the incident.” An appropriate answer might be, “Rear end collision.” If the client did nothing to prevent the collision, don’t say anything about it. The question asks you to describe all actions taken to prevent the collision.
This brings up the next point. Always read the questions carefully, and answer only the question that is asked. For instance, if the defense asks, “Have you ever been convicted of a felony?” If the client has a felony conviction, the answer is, “Yes.” There is no need to say, “I have three convictions for aggravated battery.” That’s not what the question asked. Pay very careful attention to the specific words of the questions. We once had a situation where the defense attorney asked whether our client had been drinking on the date of the accident. The accident happened somewhere close to 12:01 A.M.. The defense attorney really wanted to know if our client had been drinking the day before the accident date, but the specific wording of the question was asking whether he had been drinking the day of the accident. We could answer truthfully that our client had not been drinking the day of the accident, because he would have had to have drank between 12:00 A.M. and 12:01 A.M., which he had not.
Lastly, one of the most dangerous questions in interrogatories from the defense is the question about previous accidents. I always tell my clients about one of the first cases I tried where the defendant asked my client about prior accidents in her deposition. She disclosed an accident that happened two years before the accident in question, and another one a few years before that. However, she did not disclose an accident that happened 10 years prior, or another one that happened 15 years prior. She wasn’t injured in either accident, so she either forgot about them, didn’t think they were important, or she may not have thought the defense would ever find out about them. Well, the defense attorney found out, and he made a very big deal out of it at trial. He said she changed her story. It negatively affected my client’s credibility, and we ended up with a poor result. I believe my client was being as honest as possible when put on the spot and asked detailed questions about her past. That’s why I tell this story about my former client in detail to clients when answering interrogatories. Again, I ask my clients detailed questions:
Have you ever been in another car accident, even just a fender bender?
Have you ever been in an accident that was your fault?
Have you ever been struck from behind by another vehicle?
Have you ever struck another vehicle from behind?
Have you ever t-boned somebody else or been t-boned?
Have you ever had to make an insurance claim for damage to your vehicle?
What about when somebody else was driving? Have you ever been in an accident when somebody else was driving? Even if it was just a fender bender?
Ever been in a vehicle accident where there was no damage to the vehicles?
What about when you were a child? Where you ever in an accident as a child, even if you weren’t hurt?
Have you ever had a slip and fall accident?
Have you ever slipped and fell at home? Not even a scraped knee?
Have you ever tripped on anything and hurt yourself?
Have you ever twisted your ankle?
Have you ever sprained your knee, wrist, neck, back?
Ever been injured on the job? Not even a paper cut?
Ever been injured in a fight?
Ever been injured playing sports? Football? Basketball? Running? Biking?
Ever suffered a concussion?
Ever fell out of a tree?
Ever had a motorcycle, jet ski, go-cart injury
These questions are designed to jog the client’s memory. When answering the question about prior accidents, I list everything my client can remember, even something as insignificant as falling down and scraping a knee. I also refer the defense to the client’s medical records for additional information saying, “This list is not intended to be exhaustive but only serves as a supplement to my medical records and other records which will be obtained during the discovery process.” The disclaimer is extremely important, because almost inevitably the defense will find out about something the client had forgotten.
The easiest way for a defense attorney to destroy a perfectly good case is to attack the plaintiff’s credibility. By limiting the amount of ammunition we give the defense, we can maximize the value of our clients’ cases and obtain justice for the clients.