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Complaining that lawyers increasingly are abusing people during depositions, a Miami-Dade judge has accused a defense attorney of “harassing” an auto negligence plaintiff and has blocked the attorney from forcing the plaintiff to return from the Bahamas for further questioning. Two years ago, Inez Symonette shattered her wrist when the rental car driven by her daughter and in which she was a passenger rear-ended a car stopped at a traffic light in Miami. Symonette, now 62, and her husband, the Rev. Elkins Symonette, 64, sued Dollar Rent A Car Systems in Miami-Dade Circuit Court for negligence and loss of consortium. The couple claimed the auto rental company was liable for their daughter’s driving error and for the condition of its car. The lawyers defending Dollar called the couple in for depositions and for a medical exam of Mrs. Symonette. The Symonettes traveled from their home in the Bahamas to Miami on Aug. 27. But instead of a deposition, according to Circuit Judge Philip Bloom, the Rev. Symonette got a grilling, packed with irrelevant questions designed to harass and embarrass. When the questioning ran unexpectedly late and the couple and their attorney said they were leaving, defense attorney Vivian Persand informed them that they’d have to return another day to finish up, at their expense. “Defense counsel questioned the Rev. Symonette on his [loss of] consortium claim for over an hour,” Bloom said in granting a protective order Oct. 17 prohibiting Persand, an associate at the Miami firm of Acosta & Associates, from continuing the deposition. “During this time, defense counsel interrogated Rev. Symonette on the following topics: his complete employment history for the past 36 years; his personal life insurance policy; his complete educational history, including an honorary doctorate degree in theology; the number of plaintiffs’ grandchildren and their ages; whether Mrs. Symonette had prenatal care or morning sickness with her pregnancies (the last of which was nearly 30 years ago); and the Rev. Symonette’s personal medical history, including whether he has “ever seen a doctor for any medical reason.” In an interview, Judge Bloom, 72, who in December will step down after 17 years on the bench, criticized what he described as a trend of abusive questioning by attorneys during depositions. He said he hoped his order in the Symonette case would serve to instruct the legal community that when lawyers take depositions, “they should take meaningful depositions and not use them for purposes of harassment.” Julio C. Acosta, who heads the law firm where Persand works, defended his associate’s conduct. “I support my associate’s thoroughness and determination to provide our client with a vigorous defense,” he told the Miami Daily Business Review. Persand did not return calls seeking comment. According to court filings, Mrs. Symonette suffered a shattered wrist in the December 1999 accident, had to undergo a major operation and anticipates a second procedure. Last February, after failing to reach a settlement with Dollar and its insurer, York STB Inc., of Winter Park, Fla., the Symonettes filed an auto negligence suit against Dollar and their daughter Patricia. Besides alleging that Dollar is liable for their daughter’s negligent driving, the plaintiffs also are exploring whether the rental car’s brakes were faulty, says the Symonettes’ attorney Deborah J. Gander, a partner at Colson Hicks Eidson in Coral Gables, Fla. On Aug. 27, the plaintiffs traveled to Miami for Inez to undergo an exam by a physician chosen by the defense, and for her and her husband to be deposed. The medical exam was scheduled for 8:45 a.m., followed by the depositions, set for 10 a.m. and 11 a.m. The depositions were delayed because the exam wasn’t completed until noon. The depositions started at 2 p.m. According to Gander, Acosta said he anticipated finishing both depositions within 1 1/2 hours. Gander told him at the outset that she had to leave at 5 p.m. Acosta completed the deposition of Mrs. Symonette shortly before 4 p.m., then left associate Persand to depose the Rev. Symonette. Gander allowed the deposition to continue until 5:20, then left with her clients, despite protests by Persand that the defense would have to depose Rev. Symonette again at the plaintiffs’ expense. Gander subsequently filed a motion for a protective order, asking Judge Bloom to prohibit further deposition, or at least to require that Symonette be deposed by phone, at the defendants’ expense. According to Gander, Persand’s deposition consisted of “absolute badgering and abuse of the witness.” Was it just a case of an inexperienced associate being overly thorough? Persand was admitted to the Florida Bar in October 2001, according to the Bar’s Web site. That might have been part of the problem, but it went deeper than that, Gander says. “Her tone and demeanor was, ‘I’m the attorney, I have you here and I’m going to do whatever I want while I have you here.’” Judge Bloom agreed. “Rev. Symonette’s deposition is 53 pages long,” the judge noted in his order. “The first time in the deposition that defense counsel asked about the marital relation — which is the complete crux of a consortium claim — was on page 47, after plaintiff’s counsel had advised that she would be leaving shortly as the deposition had run beyond regular business hours. … The court finds defense counsel’s conduct to be harassing and to have a chilling effect on plaintiffs’ constitutional right to seek legal redress for their injuries.” Depositions concerning consortium claims should rarely extend beyond an hour, Bloom wrote. “The issue is simple: What is the difference in the marital relation before and after the incident sued upon? … Defense counsel,” he wrote, “is not entitled to delve into the plaintiffs’ history from cradle to the grave, or even from kindergarten through the present. It is oppressing, unnecessary and not to be tolerated. “Having chosen to use her time on irrelevant questions, defense counsel bears the burden of doing without whatever information went unasked.”

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