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Witness can't remember key fact at medical malpractice trial. Can I use his pretrial testimony to refresh his memory?

It happens in many trials involving accident cases, medical malpractice cases and even wrongful death cases here in New York.

You have a witness testifying and he simply forgets a key piece of information.

It's something he remembered a years ago.

It's something he knew.

In fact, two years earlier when he was asked the same question by the defense attorney during pretrial questioning, he knew this answer exactly.

Can I use his pretrial testimony to refresh his memory about a specific event that he is currently having difficulty remembering?

The answer is yes, I can.

In fact, I can use not only pretrial testimony to refresh his memory but any document that might help him remember what it was that he knew at the time that the event happened.

How do we actually do this?

Let me give you an example...

Let's say it is a medical practice trial and my client is on the witness stand explaining what the doctor did during each of his visits. I now ask him to explain when his next visit to the doctor was.

He's having difficulty remembering whether it was in December, January or February. In fact, he's having difficulty remembering exactly what he said to the doctor on that particular visit.

He's struggling.

He sincerely doesn't remember.

Even though he reviewed his pretrial testimony in anticipation of coming in to testify today, he simply does not remember.

Even though a witness or a litigant has given pretrial testimony, the transcript of that question and answer session is simply not admitted into evidence. The jury does not know what questions and what answers were given two years earlier when the defense attorney was in our office questioning my client about what happened.

I can always pull out a copy of the medical records which will have been admitted into evidence to tell my witness what is recorded in the medical record. However, in many cases I would prefer to have my client explain, in his own words, exactly what happened and when.

That does not mean that he needs to memorize exact dates and times in order to be successful.

This is not a memory test.

Instead, if the witness is unable to remember events that occurred years ago, I can now use different documents and even pretrial testimony to try and refresh his memory.

So here is how we do it...

“Mr. Jones, two years ago you were in my office with the defense attorney asking you questions and you giving answers, correct?”

“Yes, I remember that. You called that a deposition.”

“That's correct. Now, I'm going to read to you from the transcript of the questions that you were asked and some of the answers that you gave. Let's look at page 17, line 9...

Question: When did you next see Dr. Gonzalez?

Answer: I saw him December 15.

Question: what complaints did you make to Dr. Gonzalez at that time?

Answer: I told him I was having difficulty breathing. I told him I had difficulty going up the stairs. I told him I was coughing up blood.

Mr. Jones, were you asked those questions and did you give those answers at that time?”

“Yes I did.”

“When you gave those answers to those questions, were they accurate at that time?”

“Yes they were.”

“Did those questions and those answers refresh your memory about when you last saw Dr. Jones in his office?”

“Yes they do. I now remember that I did see him on December 15.”

“Did those questions and those answers refresh your memory about what specific complaints you made him on that last visit?”

“Yes they do. I told him I was having difficulty breathing. I told him I had difficulty going up the stairs. I also told him I was coughing up blood.”

What happens after I refresh his memory?

I can continue asking my client questions which simply gets him over this little hurdle about something that he did not remember while he was on the witness stand testifying.

Some people might think this is helping the witness to testify. Actually, it's not.

You see, during his pretrial testimony, there was a court reporter there to take down all the questions and all the answers that were provided. My client was then sent a copy of the transcript to read over and confirm that the questions and answers were valid and accurate. Once my client verfies the accuracy of the transcript, he is asked to make typographical corrections, if there are any.

My client is then asked to sign the correction sheet & the transcript and return it back to me.

Then I will make a copy of the correction sheet and a copy of the signature page. I will then send the original signed transcript to the defense lawyer for his file. The court reporter will already have sent me an extra copy of the transcript for my file as well.

Does my client review his pretrial testimony before he goes to trial?

Absolutely.

Before trial, we will always give my client a copy of his testimony in order to review it prior to trial. We do that to allow him to refresh his memory about the questions that he was asked as well as the answers that he gave. Remember, testifying is not like taking a test where if you don't remember a specific answer, it means you fail.

Testifying is explaining to the jury what you remember happening and what problems you have as a result of someone else's carelessness.

Everyone recognizes that memories can be faulty.

When a witness has difficulty remembering something that they knew earlier, and that information was recorded in some fashion, now we are permitted to use that prior recorded information to help a witness remember the events that occurred years earlier.

To learn even more about refreshing a witness's memory, I invite you to watch the video below...

 


Gerry Oginski
NY Medical Malpractice & Personal Injury Trial Lawyer