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Drafting Interrogatories

Interrogatories are part of the pre-trial discovery process. Fed. R. Civ. P. 33 authorizes a party to serve written interrogatories on another party and requires that the interrogatories be answered separately and fully under oath. Written interrogatories offer a simple and inexpensive approach to assist in the determination of the opposing party’s evidence concerning pertinent aspects of a claim or defense. Interrogatories can cover any matter, not privileged, that relates to a claim or defense in the action. The evidence sought through interrogatories does not have to be admissible, but the interrogatories must be reasonably calculated to lead to the discovery of admissible evidence. Interrogatories are used to obtain factual information and opinions relating to facts.
Admissions and statements made by adverse parties, the identity of witnesses, the existence and custody of exhibits and photographs, and the ownership, custody or control of instrumentalities causing injury can be discovered. Answers to interrogatories may also produce technical data concerning details of a product’s manufacture, design, inspection, and testing, as well as prior and subsequent incidents involving the product. The making and delivery of a contract, the validity of a signature, or any other fact vital to the proof of or the defense against a cause of action can be ascertained through this inexpensive discovery procedure.

Interrogatories are useful in other respects in that the information they disclose may help counsel in the preparation for depositions, in client interviews, and in the preparation for and conduct of direct and cross examination.

Form books are often very helpful in the drafting of interrogatories, although they should serve only as a guide and should not be slavishly followed. By carefully selecting questions and groups of questions in forms of interrogatories, counsel may create a set of interrogatories to meet almost any conceivable situation. One example of a form book is Bender's Forms of Discovery Interrogatories (Volumes 1 to 10A), which provides a selection of sample interrogatories under more than 200 title categories from Accounting to Zoning. Bender's Forms of Discovery is unique in that it can assist lawyers in both state and federal practice. Because the 1993 Amendments to the Federal Rules of Civil Procedure have imposed limitations on the number and timing of interrogatories, practitioners should consult their local jurisdictions to determine whether the limitations apply to their cases. In jurisdictions that have adopted limitations on interrogatories, practitioners should select from the interrogatories those questions that will best elicit important information for their cases.

Each interrogatory should embrace a single, concise, simple and definite question, which is in keeping with the form of question prescribed by the courts so that there may be no doubt as to what the interrogated party is called upon to answer. This is a safeguard against the possibility of evasiveness in the answer.