Verifying interrogatory answers

I prosecuted a motion to compel recently against an experienced attorney.  One of the things I wanted his client compelled to do was verify the answers to my client’s interrogatories.  At the hearing the opposing attorney reported that, until he received my motion to compel, he was unaware of the requirement that interrogatory answers be verified.  He further indicated that some of the attorneys he asked about this were unaware of this requirement.  This was surprising but not shocking: many family court attorneys fail to have their clients verify interrogatory answers.  However, the rules of civil procedure require it and I uniformly demand it.

South Carolina Rule of Civil Procedure 33(a) requires that, “unless it is objected to,” “[e]ach interrogatory shall be answered separately and fully in writing under oath…” (emphasis added). Typically at trial I will cross examine the opposing party regarding interrogatory answers I can show are false or I believe are ridiculous to show that party to be not credible or not reasonable.  The under oath requirement of interrogatory responses gives such false or ridiculous answers added weight.  Before I became aware of the under oath requirement for interrogatory answers–and therefore typically received and accepted answers that were not under oath–a response to such cross examination questions regarding interrogatory answers would be met with “those are my attorney’s answers, not mine,” or even “those are my attorney’s answers; I never saw them,” the inference being that the opposing party had no responsibility for these answers.

By requiring these answers be provided “under oath” one prevents the witness from shifting blame to the attorney, as the witness has verified these answers’ accuracy.  For a while, I would cross examine opposing parties by showing them their verified answers with the goal of preventing them from shifting blame to their attorneys.  Now however, recalling how most litigants love to blame their attorneys for false or ridiculous interrogatory answers, I hold back at first on my cross examination and only show the witness the interrogatory answers.  That way if the witness attempts to shift blame to his or her attorney, I can pull out the verification and show that the witness is being even more evasive by attempting the shift blame to the attorney for answers that witness verified under oath.

I can also spend some time cross examining that witness on his or her understanding of what verification requires and on the concept of perjury (by answering interrogatories “under oath” the witness becomes subject to perjury if the answers are both material and knowingly false).  Often, what develops in cross examination is that the witness has little concept that verifying interrogatory answers was a serious undertaking–and that lack of understanding can be used to both undermine that witness’ credibility and undermine the attorney’s fee claim (I believe it is relevant to a party’s fee claim if that party’s attorney had the party executing documents the party does not understand).

The requirement of verification of interrogatory answers is designed to insure that the answers are complete and accurate and to provide useful cross examination fodder at trial if the answers aren’t.  One should always require the opposing party’s interrogatory answers be verified and always make sure one’s clients understand the ramifications of verifying interrogatory answers.


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