Step eight in how to win a lawsuit: The proper use of interrogatories

Interrogatories are written questions that a party is required to answer under oath. You can ask pretty much anything you want, although many courts restrict the number of interrogatories. The trick here is to remember that, while your opponent is required to sign the answers under oath, it is his lawyer who actually writes out the answers. And lawyers of course are great word smiths who can almost always find evasive ways to answer difficult questions. That’s why I only use interrogatories to gather information that is purely factual: names, addresses, employers, employment history, medical expenses, income reported on tax returns, the identities of all witnesses, the types and identities of all documents that may exist on a given issue, financial information, and the like. I get everything else I need at the deposition of the opposing party where the opponent must answer everything himself and cannot rely on his lawyer to help him respond to difficult questions.

Join me next week as I take a closer look at sensationalized celebrity trials. It will be the first in a new series called Under the Microscope.

Step seven in how to win a lawsuit: Demands for documents

Every United States court permits full discovery, including complete production of all documents that have any potential bearing on the issues before the court. This means that both parties can be required to turn over all documentary evidence (including digital records and e-mails) regardless of whether the evidence supports or harms the other side’s case. The trick is that you have to ask for it in the right way. If you don’t use exactly the right words to describe what you want, you won’t get what you need. The responding lawyer will justify a decision not to produce a record on the basis that it was not properly identified and therefore not properly requested. The converse problem is asking for more than you really need. In this age of digital records and e-mails, a simple request could generate tens of thousands of pages of records and totally inundate you and your lawyer. Lawyers sometimes gladly produce such large volumes of records just to harass the other side or to bury an important document hoping that it might not get found if it is tucked in the middle of thousands of other documents.

Step six in how to win a lawsuit: Depositions

A deposition is when all attorneys require an opposing party or a witness to answer questions under oath in the presence of a court reporter. It is a very formal proceeding, much like testimony in open court, except there is no judge or jury present. Attorneys use this process in order to require witnesses with critical information to commit themselves under oath before trial. This gives both sides an opportunity to plan their responses to the witnesses’ testimony and to avoid surprises at trial. This process is extremely effective in gathering evidence, but it is also very inefficient. In truth, a typical witness with relevant information that could be discovered in a 15-minute phone conversation may be subjected to 4 or 5 hours of intense questioning at a deposition. Because it is so inefficient, it is also extremely expensive. Clients must pay their lawyers to prepare for the deposition; then they must pay them to spend a day at the deposition; then they pay for the court reporter to attend the deposition and type up a lengthy transcript of the proceedings; and then they pay for the lawyers to read and analyze the transcript. It can cost anywhere from $2,000 to $10,000 for a single deposition. Really this is a hugely wasteful endeavor, but it is also an essential one under the rules of discovery in the United States.

Step three in how to win a lawsuit: Define what you mean by "win"

This is not a silly question. If you have nothing more than a very vague idea about what you should expect to happen with your case, you have no way to know whether you’ve won or lost, no way to make an intelligent decision about whether to settle and for how much, and no way to know whether it’s worth the gamble of taking your case to a trial in front of a jury. What is your case worth? What is the best way to bring the case to a satisfactory resolution as quickly as possible and with as few legal expenses as possible? It’s your case, not your lawyer’s case, and you need to take control of it, participate in all the important decisions about the case, participate in all decisions about the costs that will be incurred in presenting your case, and participate in all discussions about the strategy and tactics that will be used and why. The last thing to do is to trust that your lawyer will just take care of everything for you.

If you want to see what happens when clients leave everything to their lawyers and do not participate in decisions affecting their cases, try reading my novel, The Litigators, available through my publisher, Scarletta Press, or Amazon (both in paperback and digital copies). Suffice it to say that lawyers have a very different definition of what it means to win a case than clients do. If you ask a lawyer to define a “win” you are likely to hear about some grand courtroom victory. If you ask clients to define what they consider to be a “win” you will almost never hear anything about a courtroom. Lawyers are trained in the art of courtroom battles, all the rules, procedures, tactical maneuvering, and precedents they need to win their cases in court. Lawyers astonishingly have virtually no training in law school about the art of resolving disputes amicably and fairly.

Step one in how to win a lawsuit: Choose a lawyer

The one question I am constantly asked as a lawyer is: How do I win a lawsuit? So that all of you can benefit from this answer (and also with the hope that less people will be asking it!) I am dedicating the next ten blogs to this subject. This first blog offers my perspectives on how to select a lawyer to represent you.

Perhaps the first question is whether to use a lawyer at all, since court records today indicate that a much larger group of people are choosing to represent themselves. There is an old axiom that “lawyers who represent themselves have a fool for a client.” This axiom is based on the notion that a client is too close to his case, too emotional about his case, too involved in his case to appreciate the risks in the case and fairly and responsibly assess and respond to those risks. I might also ask whether you would feel comfortable diagnosing your own medical complaints, deciding which medications were most appropriate or performing surgery on yourself. Probably not if you care much about your personal health. In fact, there is an enormous difference in the quality of lawyers in the United States. So, the question is not whether to get a lawyer but how to find the best lawyer available.

Let’s start by saying what not to do. Do not, I repeat, do not hire a lawyer based on advertising you have seen. There is absolutely no relationship between lawyers who put out enticing television ads and the level of their legal expertise. Indeed, if there is any relationship at all, it is a negative one. Why is it, one might ask, that a lawyer needs to advertise to stay busy? The vast majority of lawyers do not advertise and instead rely on word of mouth from their current and former clients to refer new clients to their attention. If these lawyers advertised as well, they’d have too much to do.

Then does this mean that lawyers who put their pictures on TV, in newspaper ads and magazine ads don’t have enough clients? But why wouldn’t they have enough clients from referrals from all the clients they have represented in the past? Especially lawyers who advertise almost incessantly...why aren’t all the clients they get from previous ads sending new clients to them? There are only two explanations for this – either they do not have enough clients because they are not very good or they just want to get you into their office and then turn your case over to some other lawyer in their office, someone who does not have enough clients on his own. Trust me on this; I have been trying lawsuits for over 42 years, and far and away the best lawyers I go up against have never advertised once in their lives.