“Don’t apologize when you ask a witness about their sex life”, Mr. Peakwoody [1] told us in deposition training: “If someone brings a loss of consortium claim, the client has a right to ask.”

He was right. But of course I apologized the first time the subject came up in a deposition I handled. They were a nice older couple, old enough to be my parents. True, it was a deposition, but if I was asking intimate questions about their sex life, did it really hurt to be polite about it?

It was a personal injury claim. Auto accident. The plaintiffs had been injured. Fault wasn’t really disputed (a rear end collision, no sudden stop defense to speak of). Discovery mostly focused on damages. Plaintiff alleged, among other things, that my client’s negligence had caused an injury that reduced the frequency with which this couple could have sexual relations.

There are exceptions, but in most depositions only one witness is in the room at a time. In this case, both the husband and wife were plaintiffs. And each was present for the other’s deposition. You’ll see in a second why that matters.

I deposed the man first. We covered his background. The events leading up to the accident. The accident itself. And then his injuries. Then, we got to the delicate part.

Me (apologetic): “I’m going to have to ask you some rather personal questions, because you’ve made a loss of consortium claim. Is that alright?” (Of course it was, a certain partner would scowl at me when he read the deposition transcript).

Nice older gentleman, smiling reassuringly: “Of course, I understand. Ask anything you need to.”

Me, as polite as I could muster: “Before the accident, how often did you have intimate relations with your wife?”

Nice older gentleman, smiling reassuringly: “2 or 3 times a day.”

Me: “Every day?”

Nice older gentleman, smiling reassuringly: “Yes.”

Remember how I said that the wife was in the room for the deposition?

Before I had a chance to ask my next question, the woman shook her head in disagreement, almost imperceptibly. But her husband saw it. And so did I.


He spoke again: “Almost every day.”

Again, his wife shook her head in disagreement.

I looked at them. Their lawyer looked at them. The Court reporter looked at them. The room was silent.

He spoke again: “Several times a week.”

She shook her head again.

He tried again (clearly irritated): “We had very satisfactory relations. Very frequently. And now we don’t.”

I waited a beat or two. This time there was no disagreement. So I moved on. And I didn’t ask the wife the consortium questions. I figured she’d already answered, and her husband had too.

Peakwoody didn’t give me a hard time for not asking the question again. I thought he might. You don’t see a pause or a look in a deposition transcript. But the muddled answer was good enough to knock that part of the settlement demand down a notch or two.

I suppose I could claim that I’d used clever deposition strategy here — a calculated pause to ferret out the truth. Nope. I was surprised by the initial answer and had paused to take it in. The husband and wife filled my pause with their version of the truth. It may be the best deposition answer that I had nothing to do with.

— —

[1]. Not his actual name, and none of this verbatim. Tempis fugit and all.

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