What Are Legal Malpractice Interrogatories?

Legal Malpractice Interrogatories are what they sound like, questions designed to elicit information about an attorney’s alleged negligence. They can cover a wide range of topics, from the facts of the case to be prosecuted by the attorney allegedly negligent, the interview of the potential client, to billing practices and activities in the negligence case. As a Motion for Summary Judgment is the most common way to resolve law suit complaints in Legal Malpractice cases, interrogatories are used to nail down answers to specific questions of ultimate fact, which come up again in the moving of the motion for summary judgment by disclosing the affirmative, negative or neutral answer as to specific information. For example, in the above mentioned hypothetical, the Complaint may allege that our attorney lost evidence of an accident. The Complaint may further allege that our attorney spoke to witnesses "X, Y and Z" on this issue . The Complaint may further allege that the defendant attorney was not able to produce witnesses "A, B and C" from the case. In responding to these allegations, there may be great ambivalence. The Motion for Summary Judgment is a good time to nail down who the clients are talking about. As soon as we know X, Y, and Z we can ask them. Did they see our client? Did he/she talk to you? Did they say anything to you? Were you interviewed for the case? These questions, and many more, can nail down the exact nature of the recollection. There is sometimes a yawning chasm of difference between what attorneys remember on the case and what clients have witnessed. These differences are resolved on depositions soon after the interrogatories are responded to. The earlier the better, in order to meet the deadlines imposed by the CPLR and also because the earlier the case is resolved, the lower cost it will entail for the litigants. That’s the goal.

How to Draft Interrogatories

Interrogatories are a popular choice in legal malpractice cases. In the hands of a defendant, it is a means to seek information from the plaintiff. Ideally, interrogatories should be drafted to narrow the issues and highlight specific areas where the plaintiff must meet their burden of proof.
Some patterns of questions tend to arise that highlight key elements of the case, in a digestible manner.
First, they sometimes focus on the overall context of the representation. What was the relationship between the parties, what were the specific services and for what amounts were they for. This is a valid area of inquiry and can highlight an issues such as a malpractice defense based upon whether the client was actually a client.
The success will hinge on being clear as to the specific attorney’s work, and the engagement letter and billing records. These will probably be obtained in discovery.
But some areas need to be addressed with precision. The what happens in the relationship. When was the relationship formed, when did the client realize that something may be amiss, and when did the client reasonably recognize that there was a problem. This is key because the SOL will likely come into play at some point. But it must be the precise point of discovery, not when the plaintiff was frustrated, in pain, unhappy or felt deprived of something.
These types of questions can be very valuable in focusing the plaintiff on facts to support their claims, and highlight any potential deviations or problems.

Common Interrogatory Questions in Legal Malpractice Cases

In most legal malpractice cases, the first discovery tool the plaintiff will encounter are interrogatories. Interrogatories can be thought of as a series of questions (usually in writing) that ask the plaintiff to provide information about the alleged malpractice, the damages, etc. It is a way of beginning the process of weeding out some of the issues.
Common types of questions in legal malpractice cases include:

• What was the contract of employment with the attorney- what did the fee agreement say about the work to be done? Were they ever changed?
• Did the attorney obtain malpractice insurance and in what amounts?
• What is the basis of your claim for damages, how much money do you think you lost, etc.
• Did the attorney make agreements in the underlying case (that was not good for the client) without telling the client about it? Did the client ever complain?
• When and if the attorney was intra-dealings with plaintiffs adversary instead of taking care of the client’s case, did they reveal this to the client? Did the client understand this, agree to it, etc.?
• If the attorney did not commence an action, or commence it over again, what was the reasoning for that, how was the decision reached? Again, did the client understand this, agree to this?

These are but a few of the questions generally asked in a legal malpractice case. More questions are asked to try to ascertain if the history of the relationship between Attorney and Client was "bad." Was there a pattern of ignoring client’s wishes? Trailer trash like conduct toward the client?

Responding to a Legal Malpractice Interrogatory

In a legal malpractice suit, like any other civil litigation, there are discovery needs and obligations. After the initial pleadings are filed and served a case is made up of discovery. There are requests for documents, interrogatories and depositions (which can be notice of depositions, and where necessary court ordered depositions).
Interrogatories are an extension of the pleadings, and as such demand that the attorney carefully and fully examine the complaint when preparing responses .
Clients must be aware that the time for responses to a legal malpractice complaint are shorter than in an ordinary case. Responses must be prepared in a timely fashion as advisable counsel.
The client must pay attention to the interrogatories. They are painstakingly detailed and can strike at the very foundation of the past relationship with attorneys. The danger is, while trying to answer the interrogatories, inadvertently revealing some element of the privileged conversation which the client sought in the first place.

Difficulties/Objections to Interrogatories

One of the most common defenses to inappropriate Interrogatories is that the questions are beyond the scope of the information needed. In other words, they are nothing more than an improper fishing expedition. The best strategy is to respond truthfully to the question, without adding augmenting commentary to the answers which you provide, so as to not further implicate yourself.
Objections may be made to questions which intrude on the attorney-client privilege, but only if you do not believe that the question can be answered in a way which would not invade the privilege. A common objection is to document requests for all correspondence, documents, emails and writings relating to the case. Such a request is overly broad and should give rise to an objection. If the request is in fact overly broad, the objector should ask the inquiry to be narrowed. Many litigators routinely object to questions asking for email correspondence, because it is one of the most popular ways for a party to shield harmful evidence from the other side. Unless there were clearly incriminating emails, this objection is usually overbroad and should be limited to specific types of emails (for instance, communications between the party and a client in question, or emails relating to a particular time period). Too often, people and companies use email as an opportunity to vent, not with the intention that everyone be able to see it years later in the context of a lawsuit. This does not mean that the Respondent is shielded from turning them over under all circumstances, however. Hence, depending on the question and the Respondent’s level of confidence in their case, they may choose to release the emails or not. We also suggest that, in some instances, there are reasons for not providing them (i.e., when there are confidential client issues), and in those situations, the Respondent may simply be required to provide a redacted version (where the parts relevant to the issues raised are blacked out).

Interrogatories as a Core Feature of a Malpractice Case

In strategy, it is often said that the end goal must be considered at the beginning. In legal malpractice, how does one get from the first pleading through to settlement or trial? Especially when, for example, one is defending against a motion to dismiss?
Interrogatories are an excellent vehicle for laying the groundwork to move toward or away from settlement. They can be used to strictly define the case to a few salient facts or to completely expose what the defendant attorney’s view of the case is, allowing the plaintiff to decide if there is anything reasonable under the circumstances which would allow a jury to absolve the defendant from liability. In this way, a plaintiff may preclude completely futile motion practice. Dispositive motions are a legal malpractice defendant’s remedy to recover damages from a former client who refuses to accept a reasoned sum to resolve the case. But if the client has acted with due diligence and in accordance with the advice of counsel, no insurer will agree to settle well below policy limits or decline to defend. Careful planning is necessary to close the door to dismissal and to prevent an unwanted verdict.
If interrogatories show that the plaintiff did not listen to defendant’s advice, or worse yet, allowed a statute of limitations to run, and evidence of such is coupled with other evidence establishing a good faith policy defense, dismissal may be obvious and inevitable in the absence of a drastic change in circumstances . (See, e.g., Solomon v. Roefaro, 50 AD3d 710 [2008], afl’d 12 NY3d 142 [2009], a bad faith insurance case, where dismissal was granted before the motion was even fully submitted.) In that case, the standard was "good faith" which required the defendant to "understand the full scope of the claim he undertook to handle on behalf of his client, and to accept responsibility as an advocate for the client." There, there were various forms of communications between the plaintiff and the defendant including emails and letters providing evidence of representations made by the defendant to plaintiff about why certain action was appropriate. Those communications alone, to the complete exclusion of any other evidence, were sufficient to warrant dismissal. In the many legal malpractice cases, where the plaintiff must prove not only that the attorney was negligent in failing to timely file the action, but that the same result would have been reached with a timely filing, similar communications will certainly be dispositive.
Ultimately, it is through interrogatories that a legal malpractice plaintiff can streamline the proofs and reduce the expense of a case. Using interrogatories to build the case may lead to an appropriate or the only viable resolution.