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Can a lawyer refresh his client’s memory on the witness stand?

Dec 10, 2014 | Medical Malpractice

Is it possible for the plaintiff’s lawyer to refresh the memory of his client on the witness stand, from the testimony he has provided at deposition? For instance, the client is on the witness stand, and his lawyer wants him to explain to the jury, when he last saw the doctor. The client is not sure, and he says that maybe he saw the doctor in October or November.

This means, he does not remember when he last saw this particular doctor. The lawyer would have submitted the medical records into evidence, which means the court, could find out when his client last saw the doctor. However, can the lawyer use something to refresh his client’s memory, rather than referring to the medical records?

Refreshing the Client’s Memory

The answer is yes. The lawyer can use something to refresh his client’s memory. After the medical malpractice lawsuit is filed, both parties have to give pre-trial testimony at a question and answer session held under oath, which is called a deposition. All that happens at a deposition is recorded by a court stenographer and is preserved in a book form called a transcript.

In this deposition, the plaintiff would have answered the defense lawyer, when he asked him about what happened. In fact, the defense lawyer had asked him the exact same question, as to when he last saw his doctor. The plaintiff had no problem remembering because the deposition took place very soon after he had filed the lawsuit. However, by the time the case had come to trial, two years had passed, and it was obvious he had trouble remembering the exact date.

Hence, the lawyer can pull out the transcript and refresh the memory of his client at trial. The lawyer could even mention that the deposition had taken place at such and such date, and the defense lawyer had asked him the same question for which he had given the reply as to when he had visited his doctor last. The lawyer can quote from the transcript and mention his client’s reply, and then ask if that had refreshed his memory.

Not just the Transcript

The lawyer has simply refreshed his client’s memory based on the testimony he had given two years earlier at the deposition. This can be done for everything, provided there is earlier testimony to that effect. Similarly, other documents could also be used to refresh the witness’s memory, and it does not have to be only the transcript. However, such documents should already have been submitted as evidence earlier.

Even though the client is prepared for the trial by his lawyer, there will be instances when the client might forget certain things that happened, because the trial is taking place after many days. Usually, for a medical malpractice case it could take over a year for the case to be heard in the court, after the deposition. The lapse in time could be due to many reasons; however, the point is, the witness need not worry if he has forgotten something, since their lawyer can always refresh their memory.