A demand for a bill of particulars is a procedure outside the Discovery Act, but it serves a discovery purpose: It enables defendants who have been sued generally on an account (certain actions in contract or quasi-contract) to force plaintiff to itemize the account on which the complaint is based.
This procedure dates back to early common law. When plaintiff sued on a common count, the pleadings gave no specifics as to the nature of the claim—i.e., whether contract, quasi-contract, etc. Therefore, courts allowed a "demand for bill of particulars" to enable defendant to discover what was being claimed and to prepare for trial. Although interrogatories and depositions can now be used for the same purpose, the bill of particulars remains an alternative procedure and it has certain advantages, as well.
Advantages:
The bill of particulars has some distinct advantages over Discovery Act procedures:
Inexpensive:
It is far easier and less costly to send out a simple demand for bill of particulars than it is to draft interrogatories or to prepare for and take depositions.
Conclusive:
Answers to interrogatories or deposition questions can be used as evidence against the answering party at trial; but they are not conclusive (contradictory evidence is also admissible). On the other hand, a bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars .
Does not count against "Rule of 35":
Since it is not an interrogatory, the demand does not count against the numerical limits on specially prepared interrogatories under the Discovery Act. Thus it is particularly useful in limited civil litigation where parties are strictly limited to 35 discovery requests pursuant to Code of Civil Procedure § 94.
Disadvantages:
The big disadvantage is that a bill of particulars is only available in actions on "an account". Therefore, it is not an alternative to depositions and interrogatories in most cases.
Many attorneys simply fail to recognize that, in the appropriate action, a demand for a bill of particulars can be very useful in forcing plaintiff to provide all of the documentation supporting their claim This is particularly true when plaintiff is an assignee of a finance or credit card company and thus may not have all of the documentation. I have personally seen at least two instances where creditors dismissed cases when they could not respond to the bill of particulars. And with the rise of securitization of credit card debts and consolidation of credit card issuers this means that it is now more likely than ever that plaintiff may have filed suit while having little, if any, documentation to support their claim.
And as previously mentioned the response of plaintiff to the bill of particulars is conclusive as to the items and amounts claimed; i.e., no other evidence is admissible at trial, unless the court grants leave to amend the bill of particulars.
Attorneys or parties in the State of California who wish to download a sample demand for a bill of particulars can click below.
http://www.scribd.com/doc/25560416/Sample-Demand-for-Bill-of-Particulars-for-California
The author of this blog post, Stan Burman, is an entrepreneur and freelance paralegal that has worked in California and Federal litigation since 1995 and has created over 300 sample legal documents for California and Federal litigation.
If you are in need of assistance with any California or Federal litigation matters, Mr. Burman is available on a freelance basis. Mr. Burman may be contacted by e-mail at DivParalgl@yahoo.com for more information. He accepts payments through PayPal which means that you can pay using most credit or debit cards.
Visit his website at http://www.legaldocspro.net
No comments:
Post a Comment