This is a Power Litigation™ article or Bucklin Trial Notebook™ article authored by Leonard Bucklin, a Fellow of the International Academy of Trial Lawyers. Fellowship is by invitation only, and is limited to 500 trial lawyers in the United States. Trial lawyers are invited to become Fellows only after a vetting process that includes inquiries of both judges and trial lawyers of high standing.

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Checklist: When the Witness Says “I Don’t Remember”

In some depositions, there comes a time when the adverse witness says “I don’t know” or “I don’t remember.” Beware of simply taking the answer and moving to a different question. “I don’t know” or “I don’t remember” allow the witness to appear at trial with a refreshed memory and a new answer that surprises you at the trial.

Moreover, some insurers and attorneys have been known to engage in the shady practice of educating a witness to say “I don’t know” to any questions of present location or occurrences. For example, the drill once taught to one insurer’s employees in preparation for their being deposed on issues of bad faith went like this.

“Mary, don’t you understand that even if you parked your car in the parking lot when you came in here, your car may have been stolen. Therefore the correct answer is ‘I don’t know’ if the plaintiff’s attorney asks you where your car is. Now let’s talk about your answer to “Where are the company files on refused claims…..”)

In short, don’t let any witness fool you about what they really do know. Moreover, even if this witness really does not know the information, she may know how to get the information you want.

Therefore – every time a witness says, “I don’t know” or “I don’t remember,” there is a series of questions you should ask the witness. You ask these questions to find more information from the uncooperative witness. You ask these questions lessen changes of an adverse witness mouse-trapping you with a miraculous attack of memory recovery a day before trial.

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