When a witness just can’t seem to remember, try one of these techniques:
- Request a “guesstimate.” Press the witness for probabilities, or even educated guesses (estimates that have some factual basis, however slight). This is your right as the examiner under the standards of discovery. See CCP §2017.010.
- Ask how this will go at trial. Ask how the witness expects to restore his or her memory for trial. If the witness testifies that he or she won’t be able to remember a fact at trial, then you have a basis for impeachment if the witness finds a sudden restoration of memory at trial.
- Try to refresh the witness’s recollection. Use documents and other testimony to refresh recollection. Make the witness’s obtuseness embarrassing. Fear of seeming stupid may overcome sham loss of memory.
Sometimes a witness will take a claimed lack of memory a step further by answering in a way that wanders from your question, perhaps in the hopes that you’ll forget about it too. When faced with a witness who’s meandering or being purposely vague, try out some of these phrases to bring them back to your question:
- “In an effort to refresh your recollection, let me suggest…”
- “I have reason to believe XYZ. Is it true?”
- “I would like to clear up one point in your testimony. Is it true that…?”
- “I suggest that XYZ is true. I would like to give you an opportunity to correct your prior testimony. Do you wish to do so?”
- “I represent that XYZ is true.” [Then ask related question.]
- “Let me know if I correctly summarize your testimony.” [Summarize.] “Is that a fair summary?”
- [Provide detailed fact statement.] “Is that correct?” [This is especially useful in recreating complex events or opinions.] If answer is no, ask: “What have I said that is wrong?”
At trial, great cross-examination depends on preparation, and in civil cases the deposition is the key to preparation. In chapter 9 of CEB’s Effective Direct and Cross-Examination you’ll learn how to get the most out of a deposition if you’re taking one, and how to give the least at a deposition if you’re defending one. And you’ll find everything you need to know about taking and defending depositions in CEB’s California Civil Discovery Practice, chap 6.
Other CEBblog™ posts you may find useful:
- Develop a Routine: Stock Questions to Ask in Every Deposition
- 5 Ways to Defeat Deposition Abuse
- Tips for Dealing with a Difficult Deponent
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