Though South Carolina family law attorneys are limited to fifty supplemental interrogatories, the boilerplate supplemental interrogatories I encounter are often ill designed to capture useful information. However I have begun issuing two supplemental interrogatories that routinely provide responses that greatly impact trial preparation. Those supplemental interrogatories are:
Is there anything in the affidavit that the opposing party filed at the temporary hearing that you contend is inaccurate? If so, please list each inaccuracy, why you believe that information is inaccurate, and what evidence you contend exists to support your claim of inaccuracy.
Is there anything in the financial declaration that the opposing party filed at the temporary hearing [or executed/filed on ___ date] that you contend is inaccurate? If so, please list each inaccuracy, why you believe that item is inaccurate, and what evidence you contend exists to support your claim of inaccuracy.
The reason these interrogatories are so useful is that often the most effective cross examination strategy at trial is to demonstrate inaccuracies in the opposing party’s financial declaration and affidavit. Since these documents were submitted to the court under oath and in an attempt to influence the court’s temporary resolution of contested issues while the parties prepare for trial, demonstrating substantial inaccuracies in these documents effectively shows the court that this person will lie under oath to obtain beneficial results. Convince the court of this and that party is unlikely to obtain beneficial results at trial.
Thus going to trial unprepared to know what factual assertions one’s client made at the temporary hearing that the other party disputes allows one’s client to get ambushed at trial and does not allow the client or his or her attorney to prepare an effective rehabilitation.
The information these interrogatories glean prevents such ambush. If one knows beforehand that the only figures disputed in one’s client’s financial declaration are the amounts listed for monthly overtime, incidental expenses, and the amount in a particular bank account, one can come to trial prepared to document the accuracy of these figures (or have the client prepared to explain on direct examination why those figures were inaccurate). Similarly, one can prepare to corroborate disputed facts in the affidavit one’s client submitted at the temporary hearing or have the client ready to testify as to why his or her affidavit was partially inaccurate. If the opposing attorney attempts to demonstrate inaccuracies outside of the interrogatory responses, one has the basis of an objection at trial and for a post-trial motion based upon surprise.
Often these interrogatories will be met with a response that the opposing party lacks sufficient information to answer until discovery is completed. This isn’t an illegitimate response. However, South Carolina Rule of Civil Procedure 26(e) imposes a duty of supplementation of interrogatory answers that:
shall be deemed to continue from the time of service until the time of trial of the action so that information sought, which comes to the knowledge of a party, or his representative or attorney, after original answers have been submitted, shall be promptly transmitted to the other party.
Thus an initial interrogatory answer that the opposing party cannot determine what is inaccurate until discovery is complete requires supplementation when discovery is complete. While it is helpful to remind an opposing party to supplement this response, it is the opposing party’s duty to supplement a “lack of knowledge” response promptly and failure to do so may preclude the opposing party from attacking the accuracy of one’s client’s financial declaration and affidavit at trial.
The interrogatories above elicit vital information in presenting one’s client’s testimony and documentary evidence at trial and preventing a surprise attack on a client’s credibility. Unlike much of the boilerplate supplemental interrogatories I encounter, these interrogatories are actually useful.
As always, you are brilliant.
Greg –
Good advice. I actually use the second interrogatory as standard practice now, ever since you and I had a case together and you included it in your interrogatories to my client. I’ll probably start using the first one now, too.