One of the phrases that I hear at trial and at depositions that makes me cringe is: “That was so long ago.” Everyone says it: Plaintiffs, Defendants, witnesses,
everyone. It doesn’t matter what the person’s role in the case is, or whether they have been properly prepared by their attorney, whether they have
no attorney, or even if they have been “coached.” Eventually they say it: “That was so long ago.” But what does that mean?
Essentially when a person tells you that an event happened “so long ago,” they are apologizing or at least trying to explain a perceived defect in their
memory. If you can imagine the questioning of Ms. Smith, a victim of a rear end collision by a Defense attorney:
Attorney: On the date of the accident, January 2, 2010, where were you going and where were you coming from?
Ms. Smith: I left my home in Gaithersburg and I was traveling to work in Rockville.
Attorney: At the time of the collision, what road were you traveling on?
Ms. Smith: I was traveling on Rockville Pike.
Attorney: What was the nearest cross street?
Ms. Smith: Wooton Parkway, that is where the collision occurred.
Attorney: Was your vehicle moving at the time of impact?
Ms. Smith: I was standing still, stopped in traffic at a traffic light, when I was rear ended.
Attorney: How many vehicles were in front of you when you were stopped at the traffic light?
Ms. Smith: Oh, that was so long ago, I don’t remember.
Ms. Smith was doing just fine in describing the collision until she uttered that phrase. Most people, unless they are the first or second vehicle at a
traffic light, generally do not take note of, or if they do, do not recall the number of vehicles in front of them at any time. Think about the last
traffic light you stopped at, how many cars were in front of you? What was the make and model? What color? You can’t remember. Most people, if not
the first or second vehicle, don’t forget how many cars were in front of them, they never actually counted and therefore never knew. You cannot forget
that which you never knew. The question asked of Ms. Smith is a very common one, and a very common type of question asked by defense attorneys. It
requests information that almost no one can recall. That way, the Defense attorney can later go back and point out to the judge or jury how poor the
Plaintiff’s memory is and argue that her credibility is suspect. Instead of simply stating, “I don’t remember,” which would have been an appropriate
response and likely only reflected on a single fact, she tainted her entire testimony.
By stating that the collision was a long time ago, Ms. Smith has called into question her memory of the entire event if not the next year of treatment
and related pain and suffering. If it was so long ago that she cannot recall, then perhaps her testimony regarding her injuries and experiences are
incorrect. Perhaps her testimony regarding her hourly wage or the time she missed from work is suspect. Perhaps a judge or jury should discount her
testimony in general. Perhaps, if she can’t remember this allegedly large event in her life, it wasn’t really that bad, and you should not award monetary
damages to her. It is a terrible sentence to utter.
A decent Plaintiff’s attorney can rehabilitate a witness by asking details of relevant events related to a client’s injury, but it may not erase the full
damage. This issue then begs a few questions. Why did it take so long to get Ms. Smith in front of a judge, jury, or to a deposition? What could she
have done prior to her testimony to refresh her recollection?
The reality is that the legal process can take a long time. In a simple case, a person is rear ended and goes to a doctor. She treats with the doctor for
four months and is released. Her attorney collects her records and waits a short while to make sure she is okay and that she will not have to go back
to the doctor. After that short cooling off period the attorney sends a demand package to the insurer. The insurance company takes two months to evaluate
the claim and then makes a low offer that is not acceptable. The attorney files a lawsuit and is give a trial date in the District Court four months
after filing. A year has passed. If this case were more complex, the client may have treated for a year or longer. Instead of filing in the District
Court, she filed in the Circuit Court and received a court date 18 months from the filing date. It is not unusual for a Circuit Court case to go to
trial three years after the actual injury. “That was a long time ago.”
How do you keep the information fresh? After a collision, immediately after, the client should record what happened. This does not mean giving the insurance
company a recorded statement. Instead, write a letter to your attorney explaining everything that happened, or sit down with your attorney and let
your attorney take notes as you describe everything in detail. You do not want to produce a document that will have to be turned over the Defense attorney
later, instead, make all written recordings in a format that is for your attorney only. It will be protected by attorney client privilege. Also, make
sure you tell your medical providers EVERTHING that is wrong. Tell them if you cannot sleep, tell them if you have pain trying to put on your socks.
If you don’t tell the doctor, then it is like it didn’t happen. This way, you can go back later and review your letters to your attorney, you can read
your medical records, and it will refresh your memory. If you have experienced a severe injury or have prolonged pain, keep a diary. Remember, however,
that this diary may find its way into the Defense attorney’s hands. You should consult with your attorney before doing that. An alternative is to essentially
keep a diary of your pain and suffering, but instead of a notebook, send the entries to your attorney as emails. These are communications protected
by attorney client privilege and do not have to be turned over to the Defense attorney.
The key to remembering important facts for depositions or trials is to not forget in the first place, or to give yourself the tools required to refresh
your memory later. If you can’t remember, just say so, but don’t apologize for forgetting and don’t feel the need to explain yourself. We already know,
“That was so ago.”
By Craig I. Meyers, Esq.