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
insurerís 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 letís talk about your answer to "Where are the company files on
In short, donít 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......" Read the entire form, and
download it in PDF format for your own use, without charge.
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Copyright, Leonard H. Bucklin,
1994 to 12/28/2012.