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Showing a Document to Jog the Witness’s Memory

May 3, 2015 | Medical Malpractice

A lawyer shows the witness a document to refresh his memory about something that the witness claims he cannot remember. This type of technique is used when a witness, especially a doctor does not remember something about an event or about a conversation that may have occurred previously. Information may be contained in a document or in a medical record that might refresh the doctor’s memory.

How does a Lawyer Use this Technique?

First, the lawyer will lock the doctor or the witness into his or her own answers. For instance, the cross-examination might go something like this:

Lawyer: Doctor, do you recollect speaking to my client?

Doctor: No, I do not.

Lawyer: Do you remember that these following people were there present during this conversation?

Doctor: No, I do not.

Lawyer: Do you remember that during this conversation the following things were said?

Doctor: No, I do not.

Therefore, from this exchange it is quite clear that the doctor may not remember all of these events. However, the plaintiff and his family member’s have testified about the conversation they had with the doctor. After questioning the doctor, the lawyer then pulls out a medical record that contains notes of the doctor, which reveal some of the things that were contained in the conversation. The lawyer will then show the doctor his own record and ask him:

Lawyer: Based upon your own notes doctor, do you see that you have made entries in your own charts.

Doctor: Yes

Lawyer: So you made these entries, shortly after the conversation took place. Is that correct?

Doctor: Yes, now I remember.

Lawyer: At the time you made these entries, there was no issue of a possible lawsuit. Is that correct?

Doctor: Yes

Lawyer: Being the physician of my client, your goal is to note down important information in the records so that you can remember them later on, and refer back to it. Is that correct?

Doctor: Yes

The lawyer will then make the doctor read the record, and he will then ask him if the document refreshes his memory about the events that occurred. In all likelihood, the doctor cannot refute this, and he will say that it does refresh his memory and he is able to remember the conversation, and the substance of what was discussed.

What if the Witness still does not Remember?

This is how a lawyer will use a particular document to refresh the witness’s memory. Therefore, it is often helpful when something has been recorded, and the lawyer will show it to the witness, ask him to read it, and then ask the witness questions about it.

There might be instances where witness may still not remember, and the document may not refresh his memory about the events that occurred. In such instances, the lawyer will carefully go through the document and ask the witness specific things from the document that might jog his memory. Secondly, the lawyer will also establish that the entries made in the document are accurate and true, and made by a person who has no interest in the outcome of this particular case.