Litigation

Deposition Tip: Don't Give the Witness a Chance to "Dis-Remember" an Event

By Evan Schaeffer

Here is a simple tip for framing questions.

Once a lawyer has established that a witness was present at an event, many will ask a poor follow-up question along these lines: "Do you remember what happened?" 

Other versions of the wrong way to follow-up--

"Do you recall ... " 
"Are you able to remember ..."
"Can you recall ..." 

Questions like these too easily give the witness an opportunity to evade by answering, "No, I don't remember."

There's no need to give the witness a choice not to remember. Instead, get to the point: "Tell us what happened at the meeting on May 6" or, simpler yet, "What happened at the meeting on May 6?"

Some witnesses may not remember what happened. If not, they'll let you know. In the meantime, there's no reason to invite the witness to "dis-remember" in the way you ask the question.

Source: Ashley Lipson, Guerrilla Discovery §10.52 (James Publishing)

Full post as published by The Illinois Trial Practice Blog on May 14, 2009 (boomark / email).