Deposing the Forgetful Witness

From How to Prepare for, Take & Use a Deposition by Daniel P. Dain

From time to time you will encounter a witness who claims not to remember anything about important events, details of conversations, or other matters at issue in the lawsuit. In some cases, the witness has a genuine lack of memory, or is sufficiently nervous about the prospect of testifying that he has drawn a blank about matters which normally would be remembered. In others, unfortunately, the witness simply chooses not to remember or has been improperly coached to give this response.

A common reaction to the forgetful witness is to become upset or to truncate your examination because it appears to be futile. Do not give in to these urges. In most cases, the forgetful witness presents an opportunity rather than a liability. If the witness is nervous, you may or may not want to take steps to calm him and to help him recover his memory. If he is dishonest, you will want to be sure that his lack of memory is clearly established on the record. In either case, your tactics for dealing with a forgetful witness will vary greatly depending upon a combination of factors, including your estimation of the integrity of the witness, your need for the witness to give testimony on the subject, and your desire to prohibit the witness from later giving testimony on the subject based upon an ­alleged recovery of memory.

If the witness who professes a lack of memory appears to be nervous with respect to the deposition process, you may want to try to help him relax. If your goal is to help the witness recover his memory, which is not always the case, start by trying to make the witness comfortable. Explain how the deposition process works and assure the witness that you are only interested in learning the truth. Emphasize that depositions are not like tests and that he must only tell what he knows and remembers. Begin with easy questions about the witness’s background or employment until he becomes accustomed to answering questions. Use a friendly tone and avoid adversarial questions until he is relaxed, comfortable, and responding to questions. Once the witness feels he is in control of the situation or at least can respond to your questions, his nervousness may diminish.

If nervousness does not appear to be the problem, and you believe the witness has simply forgotten about past events, consider refreshing his memory by showing him relevant documents. In the alternative, ask him whether he knows of any documents or records which might help him recall. He may mention a document which you have not yet seen or possibly one which you have and can place before him. You will sometimes learn of important evidence through this type of question. It might also provide a basis for seeking discovery of written statements given to his attorney or fact summaries prepared by his attorney. Ask specific questions, as they are more likely to jog his memory, or at least will commit him to a no knowledge position.

Another option is to ask the witness to tell you who might know the answer if he doesn’t. If a name is given, follow up and find out why the witness believes that this individual might know. If the witness acknowledges that your client or another friendly witness was in a position to know, establish that this witness could not presently contradict your client’s testimony, or that of another, whatever it might be. For example, where attendance at a meeting is in issue:

Q.   If my client were to testify that you were present at the meeting on Sunday, July 23, 20__, could you dispute that testimony based upon your present recollection?

A.   No.

If the witness equivocates, follow up:

A.   I don’t really remember. Maybe I could.

Q.   I’m asking for your best recollection at this moment. As we sit here today, can you recall whether you were present at that meeting?

A.   No.

Q.   Then based on your present memory you could not contradict my client if he were to testify that you were there, could you?

A.   No.

One purpose of this line of questioning is to neutralize the witness and eliminate him, as much as possible, from being a factor at trial. If it prompts him to suddenly remember, at least you have an opportunity to hear his testimony in deposition rather than at trial.

If you believe that the witness is being dishonest, or is deliberately minimizing his memory, your only option may be to neutralize him as a witness by showing that he had no recollection on any of the relevant points at the time his deposition was taken. If you have a broad range of topics to cover, you will have to call upon all of the patience and perseverance you can muster. Even though the witness repeatedly answers, “I don’t remember,” continue asking your questions until you have covered every aspect of the subject area. If you have asked a specific question on the issue in deposition, it will be difficult for the witness to credibly regain his memory at trial. At the least, you will have good material for impeachment.

When dealing with a forgetful witness, you may have to employ all of the techniques at your disposal, whether your purpose is to jog the witness’s memory or pin him down for trial. The reason is that your impeachment at trial may be more effective if you can show the jury that you made every effort to help the witness remember during his deposition. For example, consider a scenario where the witness admits being at a meeting but claims he doesn’t recall what was said:

Q.   (After establishing that the meeting took place and that the witness recalls that Ms. Davidson and Mr. Reilly also attended.) Did Mr. Reilly say anything about pricing schedules at the meeting you attended on July 23, 20__?

A.   I don’t remember.

Q.   Do you remember Mr. Reilly saying anything about pricing schedules at the meeting?

A.   No.

Q.   Do you recall that the subject was discussed by anyone?

A.   No, I don’t recall.

Q.   I would like you to take a minute and think. Can you recall anything that was discussed at that meeting? And I mean the meeting of July 23, 20__.

A.   No, not really.

Q.   Are there any documents which you could look at to help refresh your memory?

A.   Not that I can think of.

Q.   Did you or anyone else, to your knowledge, take any notes during or after the meeting?

A.   Not that I know of.

Q.   If we were to stop for a minute, do you think you might be able to remember better?

A.   No, not really.

Q.   So you can’t say one way or the other whether pricing schedules were discussed at the meeting.

A.   No.

Q.   If Ms. Davidson were to testify that pricing schedules were discussed, could you dispute her testimony?

A.   No.

Q.   And if Mr. Reilly were to testify that pricing schedules were discussed, could you dispute his testimony?

A.   No.

Q.   Isn’t it true that the three of you compared prices for your paper products and discussed setting prices for the coming year?

A.   I don’t recall doing that.

Q.   Based on your present recollection, can you deny that such a discussion occurred?

This type of questioning can go on as long as it takes you to pin down the witness’s lack of recall. If the “I don’t recall” response is highly favorable to your case, you should consider whether further inquiry might jog the witness’s memory and result in unfavorable testimony. If “I don’t recall” is exactly the answer you want, consider leaving it alone.

Daniel P. Dain, author of How to Prepare for, Take & Use a Deposition is a founder and the Managing Partner of Brennan, Dain, Le Ray, Wiest, Torpy & Garner in Boston, Massachusetts. Mr. Dain is a trial lawyer focusing his practice on representing real estate developers and property owners in litigation and administrative matters. He also maintains a commercial litigation practice and has represented clients in insurance coverage disputes. Mr. Dain was formerly Senior Counsel for Real Estate and Land Use Litigation at Goodwin Procter, LLP. Mr. Dain is also a former Special Assistant District Attorney in Middlesex County, Massachusetts.


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