Interrogatories

Read the following interrogatories (I know, you’ve had to read too many of them lately — but bear with me, there will be a point to this):

4. Are you aware of a contract between Mr. Jones and the Complainant that was performed
by the Complainant?

5. State what sum of money Mister Jones agreed to pay the Complainant, whether it was a
lump sum or by the day; if the sum was by the day, state the amount of the daily wage.

6. Are you aware that Mister Jones was indebted to the Complainant under this agreement
at the time of his death? If so, state the amount of the debt.

These are a bit odd, perhaps, but nothing out of the ordinary. Now look at these:

4. Item whether doe you knowe or haue harde of any contract or agreement made by the
sayd Earle wth the Complt, for the woorking and finishinge of Certayne Ioyneres Woorke where
did the sayd Complt or his servant soe worke the same declare yor knowleadg therein and as
you haue crediably hard

5. Item doe you knowe or haue hard what some or somes of money the said Earle agred to
paye to the said Complt him and his servant and whether did the sayd Complt woorke by the
greate or by the day yf by the day what wages did the sayd Earle alowe the said Complt and his
sarvant declare yor knowleadg herein as you haue hard

6. Item doe you knowe or haue hard that the sayd Earle of Oxford befor his death was
indebted to the Complt & did he not die indebted to the Complt in what some or somes was he
so indebted for what was he soe indebted to the Complt declare yor knowledg herein & as you
haue credibly hard.

As you will have realized if you really did read them, the two sets are the same. For the first I modernized the language and spelling, and expanded the contractions. I also changed the Earl of Oxford's name to "Mister Jones" so as not to tip off the historically-minded. (For various reasons we have many records about Edward de Vere, the seventh Earl of Oxford, who was notoriously litigious; we even have — as demonstrated here — records of lawsuits concerning his posthumous debts.)

These are from a set of interrogatories used in Edward Johnson, joiner, vs. Countess of Oxford, a 1610 lawsuit in the Court of Requests (a species of local court, brand new in 1610, created to handle debt cases). Edward, a joiner (i.e., a furniture maker), did some work for Oxford and, like many of his other creditors, was unpaid when Oxford died. (For those of you who think that the law moves more slowly nowadays, Oxford had died in 1604.) These are fairly typical examples of interrogatories from the late 16th and early 17th centuries, examples of average legal work in an average case. They are not quite “uniform” interrogatories but, typical of run-of-the-mill cases like this one, the nature of the questions and their order are fairly standardized.

Note that they are in English. Fifty years earlier they could have been in Latin. But they are written as if they were still in Latin. The words “item” and “said” (“sayd”), for example, are literal translations of words used in medieval Latin, which had become stilted and formulaic. Rather than leave them out because they are meaningless in English, the drafter left them in — because that’s how interrogatories were written, because that’s how they had been written in Latin. The lawyer in 1610 knew that “said” didn’t really mean anything but he had some idea of why he was using it anyway, which puts him at least two points ahead of us. (“Item” has since died out, but not all that long ago.)

The other interesting thing about these interrogatories is how they were used. We have the answers to them — four different sets of answers, from four different witnesses. They were not directed to a party. They were prepared for what we would call a deposition upon written questions (Rule 31, which until thirty years ago still called them depositions upon written “interrogatories”). This was the standard procedure at the time. The Plaintiff’s position was set forth in a long-winded Complaint, the Defendant’s in an equally long-winded Answer; the interrogatories were for the witnesses.

With the development of notice pleading, a 19th-century invention adopted widely in the early 20th, it became useful and necessary to ask written questions of the opposing party. Because that party was already subject to the rules of court, a subpoena to a deposition was not needed to require him to answer them. Interrogatories could thus become what we know them as today.

Meanwhile, the development of Pittman — and, later, stenographic — shorthand, which were much faster than earlier shorthand methods (which date back at least to the Romans), made the deposition on written interrogatories obsolete. Why, then, does a Rule of Civil Procedure still provide for one? Mainly for the same reasons you thought of when you first learned about it in law school: you don't know what its for and nobody else seems to, either, but there must be a way that knowledgeable people did use it, or have used it, or would use it if the right situations came up, and you don't want to admit that you don't know what those are, so we might as well keep it in there just to be safe. That is typical of the way lawyers think and it is why we do things like have a rule for a procedure we haven't needed for well over a century.