Spousal Depositions in Personal Injury Cases: Privileges, Dual Representation, Consortium Claims

Description

Deposing the spouse or partner of the plaintiff is not like deposing any other fact witness. Whether or not a party, the spouse likely has a vested interest in the outcome of the case, which can work for or against the plaintiff. Two privileges arise from the marital relationship. The adverse testimony privilege (spousal immunity) refers to the right of a spouse not to testify against the other spouse and belongs to the spouse called upon to testify. The marital communications privilege belongs to either spouse and bars specified communications between spouses. These privileges are narrowly construed. Federal and state courts have similar but different takes on when and how the privileges apply and the numerous exceptions.

Spouses can have claims of their own and be actual parties to the case, but not always. When the spouse is not a party but is also represented at the deposition by the plaintiff's counsel, additional ethical considerations arise concerning limited representation, possible conflicts of interest, and joint representation arrangements.

Nearly every personal injury to a married plaintiff gives rise to a potential loss-of-consortium claim held by the spouse. Some states recognize this as an independent cause of action, but others see it only as a damages component. Spouses asserting the claim must be prepared for brutal, embarrassing, and even humiliating discovery and "hardball" tactics designed to discourage such claims. Such tactics can backfire before a jury, however.

Listen as this experienced panel of personal injury attorneys reviews best strategies for deposing or defending the examination of a potentially powerful witness.