This article is authored by Darcy Covert, Affiliate Instructor at the University of Washington School of Law and Associate at Stritmatter Law.
Early in my legal career, a supervisor told me something I haven’t forgotten: If you asked a question, you need an answer. In that case, we were discussing whether it was worthwhile to refresh a police officer at a suppression hearing about a minor detail. But following this principle in other areas of litigation practice has served me well.
The logic is twofold. First, good lawyers think carefully before asking a party or witness a question. If a question is important enough that you asked it, it’s important enough to your case that you need it to be answered. But second, and maybe more importantly, this lets everyone else know you’re steering the litigation. Opposing counsel and witnesses tend to give over what you’re looking for more easily if you’ve already established that you’re going to get it one way or another.
Not enough lawyers take this tack. Discovery isn’t a box checking exercise, it’s the mechanism for learning what the other side knows and wants to hide or will use against you later. The discovery rules establish what you’re entitled to and tell you how to get it even if the other side doesn’t want to give it up. Here’s how to make sure your questions aren’t left hanging in each major phase of litigation.
Written Discovery: Set the Tone Early
It’s common for lawyers to answer written discovery with walls of boilerplate objections. How many times have you read the objection that the evidence you’re asking for isn’t admissible, even though CR 26(b)(1) establishes that evidence is discoverable as long as it’s relevant, non-privileged, and reasonably calculated to lead to the discovery of admissible evidence? When did you last see discovery responses that didn’t have a laundry list of objections without explanation, including privilege objections without a privilege log or any explanation of the basis for the invocation (both contrary to CR 26(g))? Did you roll your eyes at the numerous complaints that it would be burdensome for opposing counsel’s client to have to answer an interrogatory or produce documents? All discovery is burdensome—CR 26(g)(3) allows a party to object to a request if responding would be unreasonably or unduly burdensome.
My personal favorite is the inapposite objection followed by a response “notwithstanding” the objection. Evasive or incomplete answers are the same as no answer under CR 37(a)(3). If you can’t tell whether the answering party is withholding anything pursuant to the objection or if instead their response is complete, you don’t actually have your answer.
Your move? Flag these problems right away. Send opposing counsel a letter highlighting the ways in which their responses are deficient, setting a deadline for them to supplement, and scheduling a CR 26(i) conference. Remind them that they may later be paying your fees under CR 37(a)(4) if you have to get an order compelling them to follow the rules. If they’re going to supplement their responses, agree on a deadline. After the conference, send an email or letter with the responses they gave in the conference to your concerns and direct them to respond if they disagree with your understanding.
Still don’t have your answers? Consider filing a motion to compel under CR 37(a). If opposing counsel would rather spend time defending their evasiveness in front of the judge than give you valid answers, I’m happy to give them that opportunity.
Depositions: Don’t Let Objections or Evasion Derail You
There are two common roadblocks to getting answers in depositions. We’ve all seen counsel who, instead of objecting concisely as CR 30(h)(2) commands, perform a little monologue so the witness knows to please, please not say what they’re probably about to say. Then there are the “clarifying” questions from the lawyer to you as if they are the witness. CR 30(h)(2) requires that objections be concise and not suggest or coach answers. It also prohibits argumentative interruptions by any counsel. A simple, direct call-out usually reins this behavior in.
Sometimes a witness refuses to give you a straight answer or any answer at all. Unless counsel is claiming the answer is privileged or stopping the deposition for bad faith conduct, the witness has to answer the question. What’s more, their lawyer has an obligation to instruct them to answer directly and without evasion to the extent of their knowledge under CR 30(h)(3).
Being persistent in getting an answer usually does the trick. Some witnesses aren’t being malicious, and then they will probably be responsive to some mild insistence, like: “Thank you for explaining. My question may have been unclear, what I’m asking is…” Directness is likely to be more productive with witnesses who are intentionally being difficult. I’m partial to: “I understand you may not like my question. But this is a deposition, so you have to answer it.”
If the other side is being obstructionist, a mid-deposition call to the judge might be in order per CR 30(c). Judges are more likely to tell a witness or opposing counsel that they’re out of line if it won’t require an additional deposition to correct the behavior.
Requests for Admission: Extract the “Yes” or “No”
Requests for admission exist so parties can establish facts early in the case. But responses often establish very little except that the other side is playing games. It’s common to plead lack of information or knowledge, even though that’s only a permissible reason for failing to admit or deny if the answering party has made a genuine effort to find the answer but has come up short. Counsel also likes to object to requests as asking for concessions on pure issues of law when what you’re actually asking for are applications of law to fact—which are allowed under CR 36(a). Short of a valid objection or lack of information after reasonable inquiry, a party’s options are to admit the request (in part or full) or deny the request (in part or full). Note that those options don’t include answering a different question or admitting something that is substantively what you asked but with slightly different wording.
Quickly review the answers and then send a letter outlining the deficiencies, providing a deadline for amending answers, and setting a CR 26(i) conference. Remind the other side that failure to admit a fact or issue you later prove may mean they will be paying your fees and costs under CR 37(d). Keep track of your time and costs in case you end up having to prove what they should have admitted.
Testimony: Using Your Answers to Control the Courtroom
By trial, you should have the information you need because you extracted it during discovery. Now you can follow the most important rule of cross-examination—never ask a question you don’t know the answer to. That allows you to control witnesses and show the jury—and the judge—that you know the facts better than the other side does.
Every time a witness gives you a non-answer or inconsistencies crop up, refresh or impeach them. You’re asking the question for a reason, and insisting on an answer shows the witness that they can’t push you around.
Asking the right questions is pointless if you let the answers hang in the balance. And the better your questions, the less likely the other side is to want to respond. If you asked, make sure you get your answer by knowing and leveraging the rules.