Witnesses and Memory

Greg Boles
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Partner at The Boles Firm | Experience Matters

    While we generally think our memories are excellent, we tend to re-construct the past in a way that is consistent with our interests and emotional needs and are easily fooled into remembering things that did not occur.  There is a large amount of literature on just how fallible we are at remembering things.  

    Attorneys often deal with witnesses who are far too confident of their recollections.  Some people simply cannot be convinced that their memories may be wrong no matter how strong the evidence.

    Years ago, a young associate I supervised was concerned that a particular witness in a workers' compensation case did not wish to acknowledge that her memory of the events that led to her injury were incorrect.  

    The theory in the case was simple.  She was a woman in her 50s who for many years hoisted reams and boxes of paper onto her right shoulder to carry them from one location in the store to the other.  Over the course of time, her right rotator cuff deteriorated and finally tore.  Because virtually all the burden of doing this was on her right shoulder and arm, her left rotator cuff was fine. The woman, however, was convinced she suffered a specific incident in which she hurt her shoulder.  

    While it is probable that at some point she started feeling some pain in her shoulder when she lifted boxes, the problem was that she wrote two separate statements about how she injured her shoulder and made no mention of any specific incident.  In both statements, she said that she developed the symptoms over time, which is a perfectly reasonable explanation for her condition and which, if accepted by the judge, would have resulted in a determination in her favor.  To make matters worse, the medical records of five separate medical providers, including a physical therapist, made no mention of a specific incident resulting in an injury. She insisted, however, that she told "all of them" about the time she lifted a box of paper on her shoulder and hurt herself.  

    I explained to my associate that she needed to discuss with the woman the problems associated with contradicting your own medical records and statements and talk to her about the fallibility of memory and the tendency for people to remember things that occurred in the past in a way that is consistent with their emotional makeup, needs, and interests.  

    I joined the associate in a conference room while she spoke with the claimant.  She began by discussing the issue of memory, and the client acknowledged that she understood that memory is fallible.  She discussed the problems associated with contradicting your own statements when testifying before a judge.  She explained the problem of trying to say that six separate medical providers had somehow recorded her history incorrectly.  In the end, she agreed her memory of the incident was wrong, and that there could not have been a specific injury that resulted in her rotator cuff tear.     

    When she appeared before a judge in Easton, Pennsylvania, she testified consistently with her statements and the history that she provided to her medical providers, stating that the symptoms had occurred over the course of time and seemed to worsen during work hours.  Her testimony was perfectly fine.

    On cross-examination, the attorney asked the claimant if there was a specific incident that resulted in her injury.  So strong was her memory of a specific incident, she fell into the trap.  She claimed there was a specific incident, and then was subjected to 25 minutes of cross-examination during which she was confronted with both of her witness statements and the medical records from six different medical providers in which no history of a specific incident was recorded.

    My associate was able to get the case settled, but the value of the case had gone down considerably.  

    I genuinely believe this woman was testifying truthfully in the sense that she honestly believed that her shoulder injury had resulted from a single incident in which she had lifted a box of paper onto her shoulders.  I also believe, however, that this memory was completely false and that her shoulder problem resulted from repetitively lifting such boxes onto her shoulder over the course of time.  When the pressure was on, however, she could not resist insisting on the accuracy of her memory.  

    When a witness testifies to a story that is contradicted by multiple documents containing descriptions of statements made by the witness, it is nearly impossible to convince a finder of fact that the witness is testifying truthfully.  It would be best for all of us if we were more humble in assessing our ability to recall past events.  

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