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Robbins: Refreshing a witness’s memory

Recently, I had a good moment in court.

A key fact at issue in the trial was how cold it had been on a particular night. Without going into too much detail, the plaintiff in the case claimed that she always slept with the windows open. Except on the night in question, the weather had turned bitter cold and so she closed the windows.

At her deposition which was conducted months before the trial, the plaintiff stated the foregoing and, when asked if she was sure, she answered: “You can ask the weatherman.”



Just so we’re all on the same page here, a deposition is testimony taken under oath outside of the courtroom weeks, or months, or even years before the trial and constitutes part of the process of discovery to prepare for trial. It is worth noting that, because a deposition is taken under oath, to lie or misrepresent oneself in a deposition amounts to perjury.

One other thing, depositions are always recorded. At the least, a court reporter makes a written transcript of every word that’s said and, increasingly, depositions are video recorded so there is also a visual record.

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I came into this particular case late. Although the attorney I succeeded was a competent and experienced attorney, the client’s “fit” with counsel simply did not feel right to her. By the time that I was asked to replace prior counsel, discovery was closed which meant that I had what I had and could not mine for more.

One thing that piqued my interest though was this thing about the weather turning cold. Had no one actually looked into that? Had no one “asked the weatherman?” The answer was apparently not, but I determined to do so.

As I was late coming to the party, by the time I had an opportunity to ask, the exhibits for the trial were set so whatever I got could not be introduced at trial as a trial exhibit.

At my request, my paralegal contacted NOAA, the National Oceanographic and Atmospheric Administration, and asked for a certified record of the weather for the area in which the claim took place for 15 days before and 15 days after the night in question — the night that the plaintiff claimed the temperature plunged.

What we got was a record that showed that not only was there not a cold plunge on the night in question but, in fact, the weather had gotten warmer that night. The night before the night in question was a degree colder, the night before that, the low temperature was the same, and two nights before the night in question, the low was 10 degrees colder. Brrrr. What was key, though, was that the night the plaintiff claimed the weather had plunged, the record showed that it did not.

So what I did was this.

When the plaintiff was on the stand, under oath, I weaved into my questioning whether she always slept with the windows open.

“Yes,” she said. “Except on the night in question.”

“You closed the window that night because the weather had turned suddenly cold?”

“Yes.”

“Much colder than the several nights before.”

“Yes,” she said again.

“Are you certain?”

“Very.”

“Do you remember in your deposition, you said to ask the weatherman?”

“Um hum.”

“Well we did.” And after reading the highs and lows for the several days before the night in question, I handed her the NOAA record. “Does this refresh your memory?” I asked.

She studied the record for a long moment and then she said, “Well, I felt cold that night!”

Of course, the jury heard all of this and what the plaintiff said impeached her.

In Colorado, as presumably in all states, there’s a rule for that. Specifically, in Colorado, the Rule is 612 of the Rules of Evidence which provides, in relevant part, that while testifying, a witness may inspect a writing to help refresh his or her memory. While the writing may or may not be admitted into evidence, it nonetheless can help to do the job of triggering a recollection or, as in example above, undermining a witness’s credibility.

The first lesson every attorney worth his or her salt tries to drill into his or her client is to tell the truth. If that is fudged, besides dishonoring the court, the consequences, as here, can spell disaster.


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