Form Interrogatories in California Personal Injury Litigation: What are they good for?

By Michael Reiter, Attorney at Law

Form interrogatories are questions that can be used in civil discovery to find out information about other parties, including information like a party’s name, information about their case, and other information, such as contentions.  The plus is they are cheap to serve.  The minus is they often are not particulary useful.

Form interrogatories are a good tool, but like any tool, they need to be used for their intended purpose.  They are not the end-all, be-all of discovery.  They are designed to do some things, but not others.

California has form interrogatories created by the Judicial Council.   There are general civil law interrogatories applicable to an unlimited civil case (though be warned, there are times that it does not make sense to use them, like in eminent domain proceedings, where they are far too general and rarely relevant to the proceedings).

The general civil form interrogatories, Judicial Council Form DISC-001, have instructions on the front, an opportunity to define the term “INCIDENT” and various interrogatories.  There are also form interrogatories for limited civil cases, unlawful detainer actions, and employment law cases.

Form interrogatories are easy to use, because they involve checking boxes.  The advantage to form interrogatories is that they do not count  (in unlimited civil cases ONLY) towards the rule of 35 for specially prepared interrogatories.  California Code of Civil Procedure section 2033.740(a).  Form interrogatories do count against the grab bag rule of 35 in limited civil cases, so they should be use very judiciously.

Typically, I will use form interrogatories in every personal injury case.  When I was doing personal injury defense, I would serve them as soon as possible after being served, or no later than when the answer.  I also use them judiciously.  Some of them do not apply in every case.   Sometimes, subsequent sets are needed, particularly for the use of Form Interrogatory No. 17.1, in conjunction with the service of Requests for Admission.

Form Interrogatories should not be served on a personal injury defendant without leave of court before the first of ten days after service of summons, or the defendant’s appearance. California Code of Civil Procedure section 2030.020(a).

The problems with responses to  interrogatories is that they are often bloated and written by attorneys, chock full of objections.  Responses are painfully slow, with a minimum of thirty days after personal service.  Often the information sought in form interrogatories is better obtained in a deposition.  Interrogatories are also available only to parties.  California Code of Civil Procedure section 2030.010(a).

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 1255 W. Colton Ave. Suite 104, Redlands, CA 92374
T: (909) 708-6055
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Always Check the Pocket Part: Doing Your Due Diligence In Law

By Michael Reiter, Attorney at Law

The first week of law school, if not the first day, my Legal Research and Writing instructor at Santa Clara University School of Law JoLi Schunk, taught me to always check the pocket part. Bound legal publications, such as the United States Code Annotated consist of a bound book with a pocket in the back. The pocket contains the pocket part. The pocket part is a soft bound packet, varying in thickness, that has updates from the bound version. “Always check the pocket part” means, for example, that if you found a statute that supports your case, make sure that it is today’s black letter law, and it was not repealed by later legislation seen in the pocket part.

Today, most physical law libraries are getting smaller, so much research is done using online sources that are constantly updated. “Always check the pocket part” means that you cannot rely on others in quoting the law. For example, do not rely on a secondary source, or a case squib to tell you about a case. Go directly to the case. Go to a primary source.

This truism was illustrated in the San Bernardino City Attorney’s race. Challenger David McKenna erroneously accused the accuser of accepting money related to an ongoing corruption scandal in San Bernardino County, when in fact, the money was used to oppose the City Attorney James Penman  in the 2007 City Attorney’s race. According to the news reports, David McKenna based this false accusation upon a newspaper report in the Press-Enterprise that was in error. The original campaign filing showed the correct information (that the money from the PAC was used to support City Attorney Penman’s opponent, Marianne Milligan ).

According to the online edition of the San Bernardino Sun posted today:

McKenna said he did his due diligence, discovered the error and called Penman to apologize and let him know that he would send another email saying the previous message was wrong.

Read more: http://www.sbsun.com/news/ci_18604446#ixzz1U0Lw4bdH

“Always check the pocket part” means doing the due diligence before you quote an outdated statute in a pleading, or cite checking a citation before filing your opposition to a Motion for Summary Judgment, or in the case of the challenger to the City Attorney’s office, looking at an original document instead of quoting a secondary source like an out-of-town, out-of-county newspaper.

It’s also a matter of taking care of little details. An attorney I worked for repeated this proverb, a copy of which I found online:

For want of a nail the shoe was lost.
For want of a shoe the horse was lost.
For want of a horse the rider was lost.
For want of a rider the battle was lost.
For want of a battle the kingdom was lost.
And all for the want of a horseshoe nail.

Everyone makes mistakes, sometimes in the practice of law, there is not as much time as we would like. However, if you, as the self-represented, as an attorney, or anyone for whom words are important, do your due diligence and always check the pocket part, you’ll be much better off.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

A: 300 E. State St. Suite 517

Redlands CA 92373-5235
T: (909) 708-6055

Waiver of California Civil Code section 1542 and Unknown Claims in Personal Injury Litigation

By Michael Reiter, Attorney at Law

In California, a release is often the end of a dispute or lawsuit.  Commonly, you will see language waving California Civil Code section 1542.  California Civil Code section 1542 reads:

A general release does not extend to claims which the creditor does not know or suspect to exist in his or her favor at the time of executing the release, which if known by him or her must have materially affected his or her settlement with the debtor.

Waiving rights under California Civil Code section 1542 is so routine, many attorneys mistakenly use the pre-2005 version of the section (which added “or her” in three places).  Releases are among the most copied documents amongst lawyers.  The problem is that some copy verbiage that does not necessarily apply in every situation (for example the Insurance Code verbiage where there is no insurance carrier is involved).

In a case where there was no express California Civil Code section 1542 waiver, the court still found that the release waived all claims:

Plaintiff testified he understood he was releasing claims arising under all statutes the agreement referred to, even those he did not understand. This knowledge is sufficient to withstand the provisions of Civil Code section 1542. Nothing in that statute requires that it be designated in the release or that a party specifically waive its provisions. While it might have been more comprehensive to have a reference to Civil Code section 1542 in the release, “ ‘To be effective, a release need not achieve perfection….’ [Citation.]” (Skrbina v. Fleming Companies, supra, 45 Cal.App.4th at p. 1368, 53 Cal.Rptr.2d 481.) Thus, as to defamation and the overtime claim, the release is enforceable.  Perez v. Uline, Inc. (2007) 157 Cal. App. 4th 953, 959,
Even when the release recites a waiver of California Civil Code section 1542, that may not be enough to actually waive the rights and release the tortfeasor:
Furthermore, mere recital, as in the release signed by plaintiffs, that the protection of Civil Code, section 1542 is waived, or that the release covers unknown claims or unknown parties is not controlling. Whether the releaser intended to discharge such claims or parties is ultimately a question of fact. Leaf v. City of San Mateo (1980) 104 Cal. App. 3d 398, 411, 163 Cal. Rptr.
That does not mean that the obligations are not discharged at the time of signing.  Some cases find that mistake or fraud require the release’s rescission.  Some cases find that the waiver is valid, based on the facts of the situation:
Review of the circumstances confirms our interpretation that the release was designed to extinguish all claims extant among the parties. First, Winet was represented by counsel and was aware at the time he entered into the release of possible malpractice claims against Price relating to certain services Price had rendered to him.  With this knowledge and the advice of counsel concerning the language of (and the import of waiving) section 1542, Winet expressly assumed the risk of unknown claims. Second, it is significant that the parties were able to, and did, fashion language memorializing their agreement to preserve identified claims from the operation of the release when such was their intention, specifically, the Canoga Storage Partners, Ltd. malpractice claim exclusion. Finally, Winet was represented by his own counsel, who explained to Winet the import of the release in general and of the waiver of section 1542 in particular. Under these circumstances we may not give credence to a claim that a party did not intend clear and direct language to be effective. (Bodle v. Bodle (1978) 76 Cal.App.3d 758, 764, 143 Cal.Rptr. 115 [“Where a formal contract has been prepared by persons learned in the law, the words should be given their ordinary legal import.”].)  Winet v. Price (1992) 4 Cal.App.4th 1159, 1168.
The moral of the story is that claimants and their attorneys should very carefully review any release before signing.  If specific causes of action or claims need to be preserved (for example, insurance bad faith), they should be expressly removed from the release.   The release should not be boilerplate that does not apply to the situation, and should be narrowly tailored to the facts of the situation.  The  should be satisfied with the deal before signing the release, because there may be no opportunity to undo the deal after the release is signed.

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

Michael Reiter, Attorney at Law

Welcome to my blog.  I hope to use this blog to comment on the law, including personal injury law, municipal law, real property law, and small business law.

http://michaelreiterlaw.com

 

The information you obtain at this blog is not, nor is it intended to be, legal advice. No attorney-client relationship is established by reading or commenting on this blog. You should consult an attorney for advice regarding your individual situation.

 

A: 300 E. State St., Suite 517
Redlands, CA 92373-5235
T: (909) 296-6708