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

• Author: Daniel Small
• Profession: Is a partner in the Boston and Miami of ces of Holland & Knight LLP
• Pages: 107-112

One of the most obvious rules is also the most deceptively difcult for many

people: If you don’t remember, say so. A witness can testify only to what he

or she precisely remembers. This is not what we’re used to; in our normal

conversations, we rarely just say, “I don’t recall,” and stop. We try hard to

keep the conversation moving, but the reality is that we often try too hard.

We guess and assume to help keep the conversation 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.

The problem arises from the essential structure of the witness environ-

ment, particularly a deposition. The purpose of a conversation is to have

an interesting, easy-owing exchange between two people. Anything one

person doesn’t know or remember is an obstacle to that ow, to be avoided

or worked around.

A deposition, by contrast, is intended, in part, for discovery. To dis-

cover what the witness knows. To explore—and push—the boundaries

of that knowledge in a question-and-answer environment 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 conict.

107

Chapter 19

Rule 6: If You Don’t

Remember, Say So

Small_PrepWitness_20140403_13-27 Second Pass.indd 1078/12/14 10:20 AM