Every personal injury lawyer I know has a pile of stories about the outrageous things that happen at depositions. This is the part of the pre-trial discovery process that is most subject to abuse. I think this is because it happens face to face, often in front of the client, and without a judge to play referee.
I was in a deposition in a car accident injury case this morning. The case is pending in the Circuit Court for Baltimore City. My client is a nice 25-year-old woman who was in a pretty serious accident with a gasoline tanker truck. Her right leg was more or less destroyed in the accident.
The female defense attorney for some reason found the following questions appropriate:
“You had an abortion 2 weeks before your accident?”
“Did that upset you?”
“How far along were you?”
“Who was the father?”
Needless to say, I instructed my sobbing client not to answer these questions. The ostensible reason these were proper questions was that if my client were upset from the abortion two weeks prior, perhaps that emotional upset caused her to run the red light. What a pile of garbage.
I am confident that there isn’t a judge in the state that would order my client to answer those questions.
I believe I was justified in instructing the client not to answer. In Maryland, the Discovery Guidelines of the State Bar are reprinted just before the section of the Maryland Rules pertaining to discovery. They are not part of the Maryland Rules but are generally given the force of law by trial court judges.
Guideline Eight addresses instructions not to answer at depositions. It states that an attorney should not question a deponent in a manner “he knows or should know would serve merely to harass or annoy the deponent.” Guideline Eight also says instructions not to answer are presumptively improper unless “the question is completely irrelevant or intended to embarrass the witness.” I think the line of questioning I described is exactly what I am supposed to prevent by instructing the witness not to answer.
I hope this results in the filing of a motion to compel. I want to see defense counsel try to justify this to a judge.