Associates in the Trenches
When Testimony Turns to Sex, Defuse Tension With a Direct, Respectful Line of Questioning
Posted Mar 21, 2006 3:54 AM CDT
By Geri l. Dreiling
As a young associate, Alex lee was initially thrilled when he was told he’d get to take a deposition. But when he found out the claim was for loss of consortium and that he’d have to delve into a woman’s sex life, his first reaction was, “What?”
Sex may sell, but when it comes to deposition and trial examinations, the topic leaves most lawyers squeamish.
Lee, a St. Louis associate, is no exception. But when the partner at his previous law firm told him about the deposition, she also sat down with him to help him prepare. Her advice, Lee recalls, was to be very respectful, to “set it up so you’re not ambushing them with the question, ‘Oh, by the way, how often do you have sex?’ ”
It turned out to be good advice. It helped him get through the first deposition, and he’s been using it ever since.
Not all new lawyers do as well, says Susan Ann Koenig, an Omaha, Neb., attorney who focuses her practice on family law, as well as gay and lesbian civil rights. She has observed that many lawyers shy away from asking tough questions about sexual activity, especially about gay and lesbian relationships.
Koenig, who has been practicing since 1981, has seen lawyers so uncomfortable about sexual topics that they neglect to ask the necessary questions. And those who are courageous enough to forge ahead with the proper questions can still hurt their cases if they display the wrong demeanor. “Discomfort can sometimes be construed as a lack of credibility,” she notes.
Her advice is to think about the questions well in advance of the deposition or trial. Then practice them, paying close attention to the wording. “Remembering that you’re an advocate, you want to choose your words depending on context,” she says. Jeff Dunn of St. Louis points out that the answers to awkward questions can be used as a tactical advantage, especially when it comes to loss of consortium claims.
“No man wants to claim on the permanent record that his sex life isn’t what it was,” Dunn says. He prefers to interview the husband first. “Men will always underplay the effect of the injury on their sex life.” Wives, he says, often report a much more severe impact to their sex lives.
Above all, Dunn advises, go for the direct approach. “The most important lesson I’ve learned is that those questions are awkward only if you make them awkward,” he says. He agrees with Koenig that it’s best to prepare the line of questioning and practice it before it comes time to examine the witness.
Brevity May Be Best
It’s also helpful to consider how much of the awkward information is truly necessary, says Hartford, Conn., lawyer N. Kane Bennett.
In a recent wrongful death case, for example, Bennett needed to establish that the female witness and male decedent had some sort of relationship. “They were not boyfriend and girlfriend but were involved, I guess you would say, casually,” he says. “She was present the night he died and had made some relevant observations.”
The witness was a favorable one, but he knew his line of questioning would be awkward because the parents of the deceased man were in the room.
Bennett tried asking vague questions about whether the two had been romantically involved, but got only evasive answers. Bennett finally asked, “‘were you ever in the room without other people present?’ The magic answer,” Bennett recalls, was, “‘yes, we were together in a room by ourselves, without other people present, four times.’ ”
While he could have pressed the line of questioning, Bennett let it go. “I’m not deposing Bill Clinton here,” he says. “I don’t need a certain definition to be met.”