Legal Question in Personal Injury in California
abuse of process - slander?
A deposition called by defendant claiming applicant's primary care doctor as a witness. applicants attorney miscalandered late. The defense attorney waited 5 min and proceeded to only ask about the doctors qualifications then made statements in reguards to applicants character (20 yrs ago). You couldn't tell who deposes who.the doctor and attorney go off record to veiw film not included as an exibit nor offered to applicants att. upon return on record clearly states no unusual activity noted. doctor begins to make unprofessional unsubstantiated statements reguarding possible behaviors due to applicants way of dressing/means sociopath? I cannot find any related reference except abuse of discovery process/ tort.
1 Answer from Attorneys
Re: abuse of process - slander?
Your question isn't very clear. I can't even tell who you want to sue -- your lawyer, opposing counsel or the doctor. You may have a case against your lawyer for missing the depo, but you can only win by proving that the case (not just the deposition) would have had a better result but for this mistake.
I see no basis for a claim against opposing counsel or the doctor based upon what happened in the deposition. Statements made by attorneys and witnesses in the course of litigation are privileged and cannot be the basis of a defamation judgment.
There is no such tort as "abuse of discovery process". "Abuse of process" involves starting or maintaining a lawsuit which has no merit, but since you are the plaintiff you are out of luck -- there is no such thing as abusively defending against a complaint.
If opposing counsel violated the rules of evidence at the depositon, your lawyer can still object and try to keep the improper conduct out of any future proceedings. That is probably the only available remedy for what happened during the depo.
Good luck.
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