Interested in training for your team? Click here to learn more

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

Recording of a 90-minute CLE video webinar with Q&A

This program is included with the Strafford CLE Pass. Click for more information.
This program is included with the Strafford All-Access Pass. Click for more information.

Conducted on Tuesday, October 12, 2021

Recorded event now available

or call 1-800-926-7926

This CLE course will review how to take or defend one of the most important depositions in a personal injury lawsuit: the plaintiff's spouse. The panel will discuss the unique issues concerning privilege, dual representation of plaintiff and spouse, effective cross-examination of a sympathetic witness, preventing the jury from viewing the spouse negatively, and claims of loss of consortium.


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.



  1. Reasons to depose the spouse
  2. Special considerations for dealing with a potentially appealing witness
  3. Marital privileges
  4. Ethical considerations when representing both plaintiff and spouse
  5. Loss of consortium claims


The panel will review these and other crucial questions:

  • What type of spousal testimony can be compelled?
  • What topics are covered by the marital privileges, and who can assert them?
  • How can the spouse sabotage the case?
  • What is the scope of relevant questioning if "loss of consortium" is not asserted?
  • How can defense counsel thoroughly cross-examine the spouse without alienating the jury?


Hamby, Geoff
Geoff Hamby

Trial Attorney/Catastrophic Injury Division
Bailey & Oliver Law Firm

Mr. Hamby's primary roles are depositions, scene inspections, witness interviews, & trial presentation.

 |  Read More
Modak-Truran, Anita
Anita Modak-Truran

Butler Snow

Ms. Modak-Truran focuses her practice on representing pharmaceutical and medical device manufacturers in mass tort and...  |  Read More

Access Anytime, Anywhere

Strafford will process CLE credit for one person on each recording. All formats include course handouts.

To find out which recorded format will provide the best CLE option, select your state:

CLE On-Demand Video