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At Your Pretrial Deposition, Can the Opposing Attorney FORCE YOU to Answer His Questions?

The short answer is yes, he can.

He's not going to waterboard you into answering his questions.
He's not going to pull out your fingernails until you answer him.
He's not going to hook you up to 1000 volts of electricity either to get you to answer his questions.

I'm not talking about ANY form of physical torture here.

Here's what I mean...

Let's say you sued your doctor.
For medical malpractice.
You claim he was careless.

You claim his carelessness caused you harm.
You also claim his wrongdoing caused you permament injury.
Your doctor disputes all of your claims.

He says he did nothing wrong.
He says whatever he did, did NOT cause you harm.
He also says that your injuries are not that bad.

To add insult to injury, he says you contributed to your own injuries.

That means that your case will proceed forward.
In your lawsuit you claim you suffered horribly from the time of the medical negligence until the present day.
You claim that you lost much time from work.

Since you're married, you are also claiming that your physical injuries have affected your relationship with your spouse.

You claim that all of your injuries are expected to continue into the forseeable future.
A few months after starting your lawsuit, you will be expected to participate in a deposition.
That's really a question and answer session that takes place in your lawyers' office.

In his conference room to be precise.

The doctors' attorney will be there to ask you questions.
Lots of them.
Your lawyer will be there too.

Your job is to answer those questions.
Your answers are considered testimony.
It's really pretrial testimony.

The answers you give carry the same exact weight as if you are testifying at trial.
The only real difference is that there's no judge there and
There's no jury there.

BUT...

There is a court stenographer there to record all of the questions you're asked and all of the answers you give.
You should know that the defense lawyer will be asking you many questions.
It could easily take all day.

Questions about what happened.
Questions about your injuries.
Questions about your medical history.

Questions about what activities you're no longer able to participate in.
Uncomfortable questions about your sexual activities.
Uncomfortable questions about whether you filed your tax returns.

What happens if you decide you are not going to answer questions about your sexual relationship with your spouse?
Can the defense lawyer FORCE YOU to answer his questions?
The answer is yes, he can...

BUT...

There's a reason why and let me share that with you.
Let's say in your lawsuit that you have claimed that your injuries have affected your intimiate relationship with your spouse.
You claim your sexual relationship with your wife is limited.

Lawyers call this type of claim a 'loss of consortium' claim.
That's just a fancy way to say that your intimate relationship with your spouse has suffered.
It's now time for the defense lawyer to question you during your deposition.

During the questioning, the opposing lawyer tells you "I'm sorry if this is uncomfortable, but since you're claiming that your sexual relations were affected, I need to ask you some questions about that claim."

He then begins asking you about your sexual history.

"How many sexual partners have you had in the past year?"
"How often did you have sex with your wife in the past year?"
"Each month? Each week?"

I've seen attorneys even ask about which sexual positions they were able to perform prior to their injury.
Talk about making the client uncomfortable.
It's not easy talking about your sex life with a total stranger.

Let's say that this type of talk makes you EXTREMELY uncomfortable.
"Stop asking me questions about my sex life! I don't feel comfortable talking about it," you say to the lawyer questioning you.
The defense lawyer responds "Mr. Jones, you're the one claiming that your intimate relationship with your spouse was affected. I'm merely trying to find out how it was affected and how it's different now. I need you to answer these questions please..."

He's right.

You made the claim.
You allege, through your attorney, that your intimate relationship has been affected by your injuries.
Injuries caused by your careless doctor.

If he can't ask you questions about that claim, he won't have sufficient information to know whether it's true.
Nor will he be able to mount a defense if he can't get you to provide answers to his questions.
That's why you have to answer his questions.

If you CHOOSE NOT to answer his questions, you will likely have to withdraw that part of your claim from your lawsuit.
If you CHOOSE NOT to answer his questions or if you refuse to answer selected questions, the defense lawyer will ask the judge to force you or compel you to answer them. If you fail to answer those questions, assuming they are phrased in an appropriate way, then the judge will likely threaten to dismiss your entire lawsuit!

If you refuse to answer certain questions during your deposition, for whatever reason, your lawyer will likely pull you out of the room and tell you "Listen, if you want to continue with that part of your 'loss of sexual intimacy claim' you're going to have to answer those uncomfortable questions."

"Otherwise, you're going to have to withdraw that part of the claim," your lawyer says.
Ultimately, answers those questions that you really don't want to answer comes down to a choice.
Your choice.

If you answer those questions, your case moves forward.
If you CHOOSE NOT to answer selected questions, either you will voluntarily remove that part of the claim from your lawsuit or the opposing attorney will ask the judge to remove it. Alternatively, he'll also ask the judge to dismiss your case for failing to answer those appropriate questions.

To learn what 2 questions you should never be allowed to answer during your deposition, I invite you to watch the quick video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer