January 22, 2019 Substantive Law

“I Don’t Recall”: Overcoming a Witness with Selective Memory

Kevin A. Adams

Reprinted with permission from Litigation, Fall 2018 (45:1), at 38-41. ©2018 by the American Bar Association. All rights reserved. This information or any or portion thereof may not be copied or disseminated in any form or by any means or stored in an electronic database or retrieval system without the express written consent of the American Bar Association.

No one remembers everything. Still, some deposition witnesses, often it seems with the guidance of counsel, appear troubled to recall even the most obvious facts.

“I don’t recall” and “I can’t remember” become the go-to answers to any potentially challenging question. Incredibly, showing the witness emails, contracts, and other exhibits does nothing to refresh the missing recollection. This gamesmanship can frustrate even the most seasoned of trial attorneys.

Don’t fret. Properly armed, you too can help overcome a deposition witness’s selective recall.

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