A personal injury lawyer can spot the forgetful witness by the number of times he or she answers “I don’t remember” to the lawyer’s questions. If true, this is an appropriate response. But when the witness does remember, it’s not; then the witness is telling a lie.
Based on the witness’s answers to the lawyer’s other questions, the lawyer will be able to sense whether the witness is telling the truth about his or her inability to remember. If the lawyer thinks the witness is credible, he or she can try to refresh the witness’s recollection with documents or by telling the witness how other witnesses have testified.
A personal injury attorney can try this approach: “Mr. Witness, I’ll represent to you that Mr. Clearly testified under oath that you were present at the meeting, sitting just to his right, and that you stopped the meeting during the discussion, stood up, and said you disagreed with the board’s resolution. Does that refresh your recollection as to whether you were at the meeting?”
Another way an attorney can refresh a witness’s recollection is by moving on to other questions concerning the same issue, then circling back to the topics that the witness was having trouble remembering. The attorney can also ask the witness directly if there is anything the attorney could show him or her that would refresh his or her recollection about the event.
What if the witness is lying? While an attorney cannot force a witness to give the answer that the attorney wants, the attorney can use the witness’s claims of forgetfulness to call the witness’s credibility into question—not only on the questions that he or she does not remember, but on the rest of the testimony as well.
To challenge the witness’s credibility, a personal injury attorney can try the following approaches:
- Demonstrate that even though the witness claims he or she cannot remember details about the event that are important to issues in the case, the witness can recall insignificant details about the same event.
- Demonstrate that even though the witness claims he or she cannot remember details about the event at issue, the witness has a clear recollection of other events that happened long before.
- Establish a pattern of “I don’t remember” answers clustered only around the event that is most critical to the issues in the case.
If the witness claims he or she cannot remember, the lawyer can use this answer to take the witness out completely as a witness in the case on the particular issue. If done properly, the witness’s “forgetfulness” will allow the attorney to present his or her own uncontradicted testimony on the issue. In order to do this, however, the attorney has to pin down the forgetful witness by asking questions that would make it difficult for the witness to claim later that he or she suddenly remembered the answer.
For example, to preclude the possibility that the witness will claim later that he or she remembered the answer after reviewing documents about the issue, the attorney should ask the witness during the deposition whether there are any documents the attorney can show him or her that would refresh his or her recollection. When the witness answers no, this will close the door on this route to a newly-refreshed recollection.