Go to navigation Go to content

When you claim an inability to have sex following an accident, here's a series of questions the defense attorney will ask you during your pretrial testimony

If you are married and suffered injury as a result of someone else's carelessness, whether through a car accident or medical malpractice and then bring a lawsuit, your attorney will almost always include claim for loss of consortium.

What exactly does loss of consortium mean?

It means that as a result of your injuries, your spouse was required to pick up the slack and do those things that you ordinarily used to do.

Contained within that claim is an element that the two of you have become less intimate. Your intimate relationship is often affected by the injuries you suffered.

When you bring a claim or lawsuit seeking compensation for the harms and losses you have suffered, the defense attorney will have an opportunity to question you during your lawsuit. This question and answer session is commonly known as a deposition. It is also referred to as an examination before trial.

It is literally sworn testimony given in your attorney's office.

There is a court stenographer present to record all the questions and all the answers that are given. All that information then gets put into a booklet known as a transcript. That pretrial testimony can also be used at trial.

This claim is often about sex

Many young inexperienced defense lawyers have difficulty approaching the topic of sex during a deposition. They will usually apologize for having to ask a series of questions focusing on your intimate lifestyle.

The fact remains that any activity you claim you have difficulty doing now or are unable to do now, the defense attorney is entitled to ask you questions about it.

A defense lawyer will typically preface his questions this way...

“Mrs. Jones, I have to ask you a series of questions about the loss of consortium claim. I'm going to probe some very personal details and I apologize for doing it but am required to ask you these questions...”

“You are claiming that you are no longer able to have sex the way you used to be able to have sex. Can you tell me what is different today?

How many times a week did you have sex before your accident?

Are there certain positions that you are able to have sex?

Are there certain positions in which you cannot have sex?

What is physically preventing you from engaging in sexual activity with your spouse?

If you reverse positions, and you are now on top does that alleviate the pain?

Currently, how often do you have sex?

When was the first time after your accident that you were able to resume sexual activity?

Has any doctor restricted your ability to have sex?”

What I find to be most remarkable about the series of questions is that the the answers to these questions are often painfully obvious.

For example, someone who suffered massive trauma as a result of a car accident and needed surgery and casts on their legs and arms, is physically going to be incapable of having any sexual activity for many many months.

It's obvious for the jury to recognize.

Yet the defense will still ask these questions simply because we have made a claim that this injured victim has not been able to be intimate with their spouse.

Is it really necessary to get into exquisite detail about how many times they used to have sex compared to how many times they are able to have sex now?

I find this line of questioning fascinating especially since the defense has no way to confirm whether it is true. Think about it. There is no possible way for the defense attorney to confirm whether this aspect of the claim is true.

How does the defense attorney know that the injured victim had sex five times a week before the accident? They don't. How can they possibly confirm that fact? They can't.

And now when they ask how often they have sex, if the injured victim replies only once or twice a week, how can the defense attorney confirm this fact?

Are they going to put surveillance cameras in your bedroom? The answer is, of course not.

So if they cannot actually confirm this testimony, what is the purpose then asking it?

Now you sense the irony of having a defense lawyer ask these questions even though the injured victim is claiming that their lovemaking, their intimacy and their sexual relations have diminished as a result of this traumatic car accident.

Even though a defense attorney is unable to confirm the validity and the truth of an injured victim's sexual activity both before and after an accident, it's still important for him to ask questions about it. However, I find that the best and most experienced defense lawyers handling accident cases and medical malpractice cases tend to be a little more subtle and less explicit in the questions they are asking.

Instead of asking how many times you used to have sex before the accident compared to how many times you have sex now, an experienced defense attorney may instead ask “Has your intimacy with your spouse been affected as a result of your injuries?”

This allows the injured victim the ability to reply in words that they choose while allowing them to maintain some sense of dignity.

The unfortunate reality is that injured victims often are unable to do many things following the trauma of an accident or improper medical care. The loss of intimacy and sexual relations with her spouse is a valid part of any claim for damages in a lawsuit that seeks compensation for all the harms and losses they have suffered.

To learn about a case I handled where the defense attorney started yelling at me during a medical malpractice deposition, I invite you to watch the video below...