What happens next could impact your entire case.
Let me explain from the beginning.

Let's say you sued your doctor.
For medical malpractice.
For being careless and causing you harm.

Your doctor denies all of your allegations.
That means your case will likely go the distance and proceed to the 'discovery' phase.
That's the part where each side must exchange documents.

That's the part where each side gets to 'discover' what the claims are and what proof there is to support your allegations.

Likewise, it's the part where the defense attorney gets to question you.
To ask you questions about what happened to you.
To find out from you, in your own words, what happened and what injuries you have because of your doctors' wrongdoing.

The defense will also want to know how your injuries have affected you on a daily basis.
This question and answer session is known as a 'deposition' or an 'examination before trial'.
It takes place in your attorney's office.

There's no judge there.
There's no jury there.
But there is a court stenographer there to record all of the questions and all of your answers.

Your answers represent your sworn pre-trial testimony.
It carries the same exact weight as if you are testifying at trial.
Since you are claiming you suffered permanent harm and injury as a result of your doctors' actions or inaction, the defense is allowed to ask you questions about your claims and allegations.

Let's get to the title of today's article.

What happens if the defense attorney asks you a question that you don't like?
Do you have to answer it?
In almost every instance, the answer is yes, you do.

There are only a few instances where you can get away with not answering a question.
The first is where the defense lawyer asks you what you and your attorney talked about.
That's a big no-no.

Any conversation between you and your lawyer is private and confidential.
There's no chance the defense attorney will get that information.
Moving right along...

Another question where it would be permissible for you NOT to answer would be if the defense lawyer asked you a totally wacky, off-the-wall question.
Like what?
"Mrs. Jones, how many times each night do you beat your husband upside his head with that frying pan?"

"Yes, you heard me correctly. How often do you beat your husband?" the attorney asks with all seriousness.
You turn to your attorney and ask "Do I have to answer that ridiculous question?"

Unless the claims your making involve the fact that you can no longer beat your husband with a frying pan, your attorney will likely voice an objection and say "That question is palpably improper. Do not answer it."

You should know this and it's important...

In New York, the defense is allowed to ask you questions that appear to have no rational basis to your case or to your allegations against your doctor. According to the rules that govern these pre-trial question and answer sessions, you are actually required to answer them. Even if you feel they're unrelated to the claims you've made.

Just because an attorney asks you a question or asks about a certain topic during your deposition, doesn't mean they will be able to get that information in front of the jury if your case goes to trial. Remember, this is the 'discovery' phase of your lawsuit. If the defense can articulate that the question and likely answer relates to your allegations or their defenses, then it's permissible.

Let's get back to the question I raised at the beginning.
What if you're asked a question, and you refuse to answer?
I tell you that you must answer the question.

You again say "No, I"m not answering that question."

That's a problem.
If it's isolated to just one question, we might be able to overcome that problem.
If it's repeated multiple times?

That's a bigger problem.
If it's just one question, the defense lawyer will likely 'mark the question and your refusal to answer' for a ruling.
If you refuse to answer multiple questions, you can expect the defense attorney to say "Mark that for a ruling," repeatedly.

Depending on how important the topic is, the defense attorney may make a formal request to the judge to intervene.

This is known as 'making a motion'.
That requires us to respond.
In the defense's request to the court demanding an answer from you, they will likely ask the judge to impose a penalty on you for refusing to answer a proper question.

The penalty could be something minor or in extreme circumstances, your case could be dismissed!
The defense could argue that they are now deprived of an opportunity to explore everything about your lawsuit and now they are prejudiced.
If true, the judge could impose sanctions or even dismiss your case.

In other cases, he could order you to appear for questioning again and direct you to answer the question and any related questions.

Remember, the 'discovery' phase is an opportunity for each side to learn about the other sides' claims. If you obstruct the attorney's attempt to learn information that might lead them to relevant evidence you're going to have a tough time explaining why to the judge. That will likely work against you.

To learn more about pre-trial depositions, I invite you to watch the quick video below...

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer