A Million Questions

by Will Newman

One thing that happens when I start working with a client is that I ask them a million questions. The process may start with one email, where I ask a lot of questions. And after the client answers, she may feel like her work is over. But then I write back with a lot of follow-up questions and then a bunch of new questions. This may feel annoying, but I find it to be a necessary part of representing a client in litigation.

Why should you continue to read this post about questions for the client?

  • You refuse to answer that question because I have asked you so many other questions.

  • You want to know one of the many reasons people don’t like lawyers.

  • You want to know what lawyers do with the pages and pages of answers you sent them.

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Drafting or Answering the Complaint

At the very beginning of a lawsuit, lawyers often ask a lot of questions so they know how to draft or answer a complaint. It is not enough for them to hear the client explain their issue or defense; the lawyer needs to know specific facts that are relevant to specific legal theories or defenses. For example, if the case is a breach of contract case, the lawyer may need to know whether the client performed her side of the contract or whether the contract was written down, even if the client doesn’t think that’s relevant.

Often, at the start of a lawsuit, it is difficult for a client to transmit a clear understanding of the situation to the lawyer. Either the client will simplify a complicated situation because it is hard to fully explain the complicated situation, or the client will tell a very complicated story that includes a ton of irrelevant facts. As a result, a lawyer often has to ask a lot of follow-up questions to the client to ensure that the simplified story she received does not change or overlook any material facts. Or she may have to ask a lot of follow-up questions to decide which of the facts are relevant and which are not.

Then, as the lawyer drafts the complaint or the answer, she may discover that some facts don’t sound right as she writes them down or that some necessary fact is missing. This will often prompt more questions. It is important that she gets them right because court rules, like Federal Rule of Procedure 11(b)(3), require lawyers to have a good faith belief that the things they write in pleadings are true.

Responding to Discovery Requests

After the initial pleadings are filed, the questions aren’t over; they usually multiply dramatically. This is because an adversary in discovery will often ask a lot of questions, including a lot of irrelevant ones. And it is because each side is required to perform a thorough search for documents, and lawyers usually have a better idea of what constitutes a thorough search than clients do.

The American discovery process lets parties seek information on a wide variety of subjects. And while litigants may object to irrelevant requests, a lawyer may conclude that it is easier to answer irrelevant questions than have a fight over whether they need to respond, especially since the court may err on the side of permitting the requests. And so once a lawyer receives the other side’s document requests and interrogatories, they may go through each individually with the client and ask if there are easy answers to each. And, even if there are not, they may need to carefully consider how to respond to each if a clear objection is not available.

As for gathering documents, many clients are surprised by their obligation to search for and produce documents. In American lawsuits, litigants usually have to search all of their email accounts and all of the physical spaces over which they exercise control. That’s a lot! It could include homes, offices, computers, external hard drives, USB hard drives, cloud email accounts, cell phones, storage spaces, and more. And for corporate litigants, it could apply not just to one clearly relevant employee, but to a whole list of possibly relevant employees.

As a result, lawyers have to ask detailed questions of the client to determine who the relevant people are to be searched (often called “custodians”). And they have to ask a lot of questions to make sure the client thought of everywhere they could search for responsive information and really did perform good searches. This is because, should the adversary discover the searches were incomplete, the court could impose discovery sanctions.

Making Completely Sure That The Facts Are Accurate

As a case progresses, the lawyer’s understanding of the facts becomes deeper. Whereas the lawyer may rely entirely on the client at first for the facts, the lawyer may know the facts much better than the client after a few months or years. And as the lawyer learns more, she may discover that some of the client’s representations aren’t true.

Differences between the true facts and a client’s initial presentation can come about in several ways. A client can be mistaken about the facts because they themselves were not fully informed. Or they could misremember. Or it could be that the client told the lawyer a better version of the facts and hoped the lawyer wouldn’t need to deal with a messy truth that may never come to light.

In any event, the lawyer often asks a series of questions as they learn more facts to better understand those facts and incorporate them into their understanding of the case. Ultimately, when they present the case to a judge or jury, they need to be sure that the story they are telling can be supported by the evidence and is true. And when presented with incomplete or conflicting facts, they often need to ask questions to help resolve those issues.

Litigation law