Written Questions Instead of a Deposition

Two written instruments do much of what a deposition does, for far less money. Interrogatories are questions served on another party, answered in writing and under oath. A deposition by written questions reaches somebody who is not a party, without anyone traveling to a conference room.

Both trade something away. Neither can follow up. A witness who gives a narrow answer to a written question simply gets to keep it, whereas a live examiner would ask the next question immediately. That single limitation decides most choices between the two approaches.

Questions to the other side

Interrogatories go only to parties. Federal Rule of Civil Procedure 33 caps them at twenty-five, including all discrete subparts, unless the court orders otherwise or the parties agree. Answers are due within thirty days after service, and each answer must be signed under oath by the party rather than by their lawyer.

State practice varies more than most people expect. Some states use a lower cap. Several publish approved form interrogatories for common case types, which a self-represented party can serve by checking boxes, and those forms often do not count against the limit at all. Checking whether the local court publishes them is the single highest-value step available here.

Drafting is where the limit bites. Twenty-five questions disappear quickly if each one carries three subparts. Aim each numbered item at one event, one document or one person, and ask for identification rather than argument. A question that asks a party to explain why they were negligent produces a paragraph of denial; a question that asks who was present and what each person did produces facts.

Questions to someone outside the case

A deposition by written questions is the tool for a non-party. Under Federal Rule of Civil Procedure 31 the direct questions are served on every other party along with a notice naming the deponent. Cross questions follow within fourteen days, redirect within seven days after that, and recross within a further seven.

The complete set then goes to an officer, who puts the questions to the witness, records the answers, certifies the transcript and sends it to the party who noticed it. The witness still has to be compelled to attend, which for a non-party means a subpoena served the ordinary way.

The format suits a narrow job: authenticating records, confirming a custodian's practice, establishing that a document is what it appears to be. It is poor at anything requiring judgment or explanation, because the officer cannot deviate from the script.

It is also slower than it looks. Between the direct questions and the recross there is a fixed sequence of periods that has to run before the officer can begin, and only then does scheduling with the witness start. A written deposition begun close to a discovery cutoff frequently does not finish inside it, so the calendar has to be worked backward from the deadline.

Requests for admission are worth knowing about alongside these two. They ask a party to admit or deny a specific statement, and an admission removes the point from the case entirely rather than producing evidence about it. In many systems a statement that is neither admitted nor properly denied within the response period is treated as admitted, which makes them the cheapest instrument available and the most dangerous to receive.

Which instrument for which job

When the answers are useless

Evasive or incomplete answers are treated as a failure to answer in most systems. The remedy is a motion to compel, but courts expect an attempt to resolve it first. Write to the other side, list the numbered answers said to be deficient, say in one line what is wrong with each, and give a date for a corrected response.

That letter does double duty. It often produces better answers without a motion, and where it does not, it becomes the exhibit showing the court that the motion was a last resort. Judges are noticeably more willing to shift the cost of a motion onto a party that ignored a reasonable letter.

Be selective about what goes into the motion. A challenge to twenty-two answers reads as a dispute about the process; a challenge to four reads as a dispute about facts the court can rule on in ten minutes. Pick the answers that actually matter to the claim and let the rest go, because a narrow motion is granted far more often than a broad one.

Where the answers reveal that a live examination is unavoidable after all, the written record narrows it usefully. A deposition aimed at four contested points is shorter and cheaper than one that starts from nothing, and the mechanics are set out in taking testimony before trial.

Using the answers later

A signed interrogatory answer is sworn testimony and can be read into evidence against the party who gave it. It is particularly effective where a witness at trial says something different, because the earlier answer was written at leisure and cannot be blamed on the pressure of the moment.

The written deposition transcript is used the same way a spoken one is, subject to the same rules about availability of the witness. One practical caution applies to both: quote the question as well as the answer when reading a passage aloud, because an answer detached from its question is easy for the other side to recast. Copies are bought from the officer at the applicable rate, and the wider transcript pricing question is covered in getting a transcript and what it costs.

A recipient who thinks a written demand goes too far has the same protections that apply to any discovery request. Where the demand arrives as a subpoena rather than as interrogatories, the response routes are set out in objecting to a subpoena aimed at you, and compelling a reluctant witness to attend at all is covered in making a witness or a document appear.