January 15, 2020

Podcast - Rule 6: If You Don't Remember, Say So

Powerful Witness Prep Podcast Series

In the latest episode of his "Powerful Witness Preparation" podcast series, "If You Don't Remember, Say So," litigation attorney Dan Small continues his in-depth, 10-part series on the rules for witness preparation. He explains that one of the most obvious rules for witnesses is also one of the most difficult — witnesses can only testify to what they clearly remember. Although it sounds simple, this rule contrasts the patterns of a normal conversation, where people rarely say, "I don't recall," and stop talking. Nevertheless, memory is a key component of being a witness, and Mr. Small outlines several points to keep in mind. He explains why a witness' memory may differ from a questioner's expectations and emphasizes the importance of distinguishing among "No," "I don't know" and "I don't recall." Above all, he says, witnesses should focus on what they do remember and not worry about what they don't.

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Dan Small: One of the most obvious rules for witnesses is also the most difficult for many people. Rule number six: If you don't remember, say so. A witness can only testify to what he or she clearly remembers. This is not what we're used to. In our normal conversations, we rarely say just, "I don't recall" and then stop. We try hard to keep the conversation moving. But the reality is that we often try too hard. We guess and we assume to help keep it going and maybe to make ourselves look smart. Don't do it in testimony. If you do not have a clear and precise memory, just say, "I don't recall," and stop. A deposition is intended in part for discovery, to explore and push the boundaries of the witness' knowledge, in a question and answer environment that requires asking questions until the witness no longer recalls or knows the answers — and then to keep going just to be sure. Memory becomes a key factor and a key point of interest. The mind is an amazing instrument, and even today, experts don't fully understand — and some areas are fiercely debating — how our memory works. However, without getting caught up in those debates, there are a few things that science, common sense and experience tell us that are critically important for witness prep.

Importance Changes Over Time

First, what's important for one is not important for all. Most investigations, litigation or disputes in which people are questioned are very narrow. They often focus on a single incident, transaction, practice person or entity. The problem is that what the questioner is narrowly and intently focused on may not have been particularly interesting, unusual or significant to the witness at the time. Whether or not it has become important for the questioner now does not change the fact that it was not important then. However much the questioner might wish it, his or her focus does not change the witness' memory.

"Important" Does Not Necessarily Mean "Memorable"

Next, the tougher the issue, the tougher the memory. For better or worse, sometimes both, the flip side of the last principle is not necessarily true. "Important" does not always mean "memorable." This is particularly so when it comes to remembering things that were either physically or psychologically difficult. The easiest examples relate to physical pain and trauma. A woman who has successfully given birth to a baby may, particularly over time, block out much of the memory of the pain of even a very difficult labor. An accident victim may block out the moments before, during or after the crash. A questioner may push you by emphasizing how dramatic or memorable he or she thinks a matter must have been. But whether or not the questioner is right does not mean you must remember the details when you don't.

Memories Fade Quickly

Next, memory fades quickly. The pace of investigations and litigation today is slow. It means that questioning often does not happen until months or even years after the events at issue. This is not the witness' fault. You can only testify to what you precisely remember, and memory fades quickly. Your own experience tells you that after just a few weeks, sometimes less, our memory falls off dramatically. Don't try too hard.

Memories Fade Unevenly

Next, faded memory. Faded memory becomes random and anecdotal. It would be easier for a witness if our memory loss over time was absolute. We remembered everything back to a certain date and nothing beyond it. But that's not how memory works. As our memory fades, we forget things unevenly. We may forget recent events but remember long past ones. I may be able to tell you what I had for lunch on a particular Thursday back in first grade but not what I had for lunch last Thursday. One is fixed in my mind for whatever reason, while the other is not. We may also remember or forget bits and pieces, leaving us with partial or anecdotal memory. Far too often, witnesses get into trouble because they remember only one piece of an incident or issue, but when pushed by the questioner, they try too hard to remember more.

No matter what a questioner may say or imply about what you should or you must remember, it's perfectly normal to remember some bits and pieces, but not others. Talk about what you do clearly remember, and don't worry about what you don't remember.

Avoid Reconstructed Memory

Next, anecdotal memory becomes reconstructed memory. The real danger of not being comfortable with an imperfect and partial memory is that you will venture into the dangerous waters of reconstructed memory. Reconstructed memory is not based on what you actually recall, but what you're pushed to infer, to guess, to conclude, from everything else. It's speculation — could have, would have, should have, must have — but expressed as fact.

Think about reconstructing the five classic fact questions. Who? What? When? Why? Where? When questioned about a meeting: Who? "Well, Bob would have been there. He usually came to those staff meetings." What? "Well, we could've, we could only have talked about Bob's budget if he was there." When? "The meeting must have been in November, because I remember it was cold outside." Why? "There must have been a problem with Bob's budget for it to come up at a meeting like that." Where? "A meeting that size should have been in the conference room."

None of us likes to come across as uncertain. So, too often these inferences come out as statements of fact. "Last November, Bob attended a meeting we had in the conference room to go over problems with his budget." But suppose it turns out, or someone else testifies, "Though on an unseasonably cold day in September on one of Bob's rare sick days, the staff meeting was held in the cafeteria and Bob's budget was used as a good example for others." What's happened? Inferences have been stated as facts, and the facts are wrong, or at least they have created unnecessary conflicts with others. Now, instead of a simple, "I don't recall," the entire process has been made more difficult and more dangerous for all concerned. Anything can refresh your memory. A document, name, description or almost anything can help us to legitimately remember something we had previously forgotten. If your lawyer asks you if you have exhausted your memory and you say yes, this will give him a clear opportunity to show you something that might help you refresh your memory. However, nothing and no one should recreate your memory. If looking at documents or being asked questions does not refresh your real memory of what happened, don't assume anything just because it's there in a document or a question. This difference is terribly important. In one case, you have truly remembered something, in the other you have made something up. Don't do it.

"No" vs. "I Don't Know" vs. "I Don't Recall"

Next, "I don't know" versus "I don't recall." In a normal conversation there is often very little difference between "No," "I don't know" and "I don't recall." But for a witness it can matter a great deal in a couple respects.

  • Every day we see or hear so many details and then they're gone. Don't try too hard. When asked about details, be careful about just saying "No." The next thing you know, they may pull out a document or a picture or something that references it, if at all, on the side of caution. "I don't recall" is often the most truthful answer if you're not sure. Then if the document shows up, it may refresh your memory, but it doesn't contradict your sworn testimony.
  • On the other hand, if something is fundamental and wrong, you would never have done or said that. Don't hide the truth behind memory. If you are clear that something even long ago never happened, just say "No," not "I don't recall." Deny what needs to be denied. "I don't recall" opens the door for someone else to say that it happened, however falsely, without fear of contradiction.

A witness' memory lapse creates difficulties not encountered in daily conversation. In a normal conversation, saying "I don't remember" is usually a conversation stopper or at least a subject matter changer. The other person may try to help you remember but will fairly quickly move on. Lack of memory is rarely interesting. In this artificial world of being a witness, the opposite is often the case. "I don't recall" may be only the beginning of a long parade of questions on the subject. They may be aimed at refreshing your memory, pulling a fuller answer out of you or just wearing you down. Don't give up. No matter how many times or how many ways a question is asked, the answer remains the same. Telling nothing but the truth often means spending as much time making clear what you do not remember as telling what you do recall. That's perfectly appropriate. When "I don't recall" is the clearest and most truthful answer, you should never feel uncomfortable about giving it, and giving it as many times as necessary.

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