September 01, 2018 Feature

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

Use “I don’t recall” to your client’s advantage.

Kevin A. Adams

Download a printable PDF of this article.

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.

Preparation is the key. Come armed with appropriate and strategic initial and follow-up questions. A good question or series of questions will cover the intended topic completely to nail down the answer. Poorly worded questions open the door for the witness to offer different or “refreshed” testimony later.

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