Few things can derail a case faster than a client or witness who suddenly can’t remember key facts. Sometimes the forgetfulness is real—details fade with time, and stress can cloud recollection. But other times, it’s selective, where only the inconvenient details seem to disappear. Whether genuine or manufactured, forgetfulness carries one major risk: it undermines credibility. And once credibility erodes, it’s difficult to rebuild—especially in front of a judge or jury.
Lawyers cannot control human memory, but we can control how it is managed. The starting point is communication. Always show clients drafts of filings, affidavits, or declarations before they are submitted. Make sure they have read, understood, and approved the contents, and keep a transmittal email or cover note confirming that review. Those simple steps preserve the record and help prevent later claims of surprise or misunderstanding.
Before depositions or testimony, take time to review prior statements, discovery responses, pleadings and anything your client has signed, sworn to or authorized you so serve or file on behalf of the client reflecting the client’s position on a claim or defense. Encourage a careful reading so their testimony stays consistent.
It is also essential to remind clients about who you represent, who represents the opposing side, and the scope of your engagement—clarity here prevents many avoidable problems that tend to surface in high‑stakes litigation.
If a witness requests to review their deposition transcript before trial, give them that opportunity in accordance with the procedural rules that apply in your jurisdiction. Failing to do so can open the door to unnecessary challenges later, including claims that their words were taken out of context or misquoted, and may limit the purposes for which prior testimony may be offered.
Ultimately, managing memory is about protecting credibility. Genuine forgetfulness is forgivable; selective forgetfulness is not. By fostering good communication, ensuring document review, and reinforcing consistency, lawyers can keep clients aligned with the truth—and safeguard the integrity of their case.
At Moritt Hock & Hamroff LLP, our litigation team represents businesses and financial institutions in complex commercial disputes, drawing on deep experience in commercial litigation, creditors’ rights, and related business matters to protect our clients’ interests in and out of the courtroom.
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