Many attorneys mistakenly believe that answers to interrogatories and requests for admission are automatically in evidence after they’re lodged with the court. Not so! First, you’ve got to formally introduce them into evidence.
Before answers to interrogatories and requests for admission can be read to the jury, argued during summation, or relied on as supporting evidence, they need to be formally introduced into evidence—here’s how you do it:
- Lodge them with the court. First you need to lodge the requests and responses with the court. Note that courts are increasingly requiring counsel to perform this task before the trial begins.
- Let court know you want to use them. Notify the court of your intent to read portions of the discovery requests and responses into the record.
- Designate the portions you’ll read. Designate the portions of the requests and responses that you will read into the record either by set, interrogatory/admission number, or page and lines. If reading multiple interrogatories or requests for admissions, you may be required by local rules, orders, or practice to prepare in advance cut-and-paste extracts of the pertinent portions for ease of reading. See, e.g., Los Angeles Ct R 3.158.
- Wait for review and objections. Pause to give the court and opposing counsel an opportunity to review designated portions for objections.
- Read transcript. Read the designated portions slowly and with emphasis by starting with the request and then reading the corresponding response.
- Consider jury instruction. Consider requesting a jury instruction on the nature and importance of interrogatory answers or admissions. See CACI 209 (interrogatories), 210 (admissions).
Interrogatories in particular need an additional level of foundation through questioning to emphasize that their content was sworn to by the witness. There’s a tendency for parties who are being impeached to feign ignorance or to use their lawyer as a reason for not examining the interrogatories, even though they signed them under penalty of perjury. Be prepared to emphasize the importance of the interrogatories in the same way you would when establishing the reliability of a deposition transcript before impeachment with a prior inconsistent statement.
Mention any inconsistencies in responses to requests for admissions and answers to interrogatories in your closing argument. Don’t miss this opportunity! If these inconsistencies are properly elucidated during the impeachment process, they can be even stronger evidence than deposition inconsistencies because the discovery responses were presumably prepared with the careful assistance of counsel.
For step-by-step guidance through the process of introducing all types of evidence, including discovery responses, turn to CEB’s Laying a Foundation to Introduce Evidence (Preparing and Using Evidence at Trial). And also check out CEB’s essential guide for all California litigators, Effective Introduction of Evidence in California.
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