A while back I took the plaintiff’s deposition in a sex discrimination and harassment case where the plaintiff’s primary answer to any question that called for facts that might undermine her claim was "I don’t know" or "I don’t recall."  The deposition looked a lot like this one.

At a break, my client representative expressed a great deal of frustration because she believed the the Plaintiff was not answering the questions truthfully.  My client didn’t think the deposition was going very well because the Plaintiff wasn’t providing good answers on the questions that would undermine her claim.  Despite my client’s uneasiness for the former employee’s, I knew the deposition was going fine. 

You see, the Plaintiff was unable to remember the specifics of any particular action or conversation she had with my client’s key representatives.  I knew that my witnesses, on the other hand, had very clear and specific recollections about what was said and done with respect to the plaintiff and her employment.  Once the plaintiff has repeatedly claimed, under oath, that she doesn’t know or doesn’t recall things that were said or done, there will be no other witness to dispute my witness’ version of events.  And, if the plaintiff is able to miraculously remember all of the key dates and details of the things she denied knowledge of in her deposition, her credibility at trial will surely be damaged.  Rarely do our memories get better with time.  Credibility wins trials.

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