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What is the difference between answering "I don't know." and "I can't recall." during a deposition?

Brooklyn, NY |
Filed under: Litigation

I am scheduled to be deposed on Tuesday, 9-25-12. I have not been prepped by my attorney at all. I have read to answer, yes, no, please rephrase the question and the aforementioned.

Attorney Answers 6


  1. Best answer

    Saying "I don't know" usually means you never knew the answer to the question.By saying "I don't recall," it can be inferred that you once knew the answer but now cannot remember it due to the passage of time or for some other reason. If the question is critical to your case and you answer opposing counsel's question by saying "I don't recall," your own lawyer has the opportunity to later question you and show you a document, photo or anything else to refresh your recollection. Your lawyer must then ask whether your recollection has been refreshed and whether you can now truthfully answer the question. If your recollection is refreshed, you can then change your previous "I don't recall" answer and give the correct answer based upon the fact that your recollection has now been refreshed. Quite often, the opposing attorney will ask you if you "SPECIFICALLY" recall an answer to a critical question, such as "do you SPECIFICALLY recall what Mr. Smith said?" Don't be trapped by simply saying "no" or "I don't recall" if you know what he said but cannot rember his exact words. Instead, you can answer, if true, that you recall generally what he said and that it was clear to you he meant XYZ. If you answer a question critical to your case during a deposition by saying "I don't recall" when it is very important at trial that you must recall the answer, and you do in fact testify at trial that you now know the answer, the opposing counsel can effectively impeach you at trial by using your deposition testimony that "I don't recall," in which case you can lose all credibility in the eyes of the jury unless you have a very good reason why you now recall the answer to the critical question asked during your deposition. The jury can easily infer that you were "coached" by your attorney before trial, which could be very detrimental to your case. That is why it is very importantt for your attorney to fully prepare you before your deposition, especially for those questions that are critical to your case. Remember, however, always tell the truth under oath, whether during a deposition or at trial.


  2. You don't know means currently you don't know. I can't recall implies that at some point in time you knew but no longer recall.

    The above is general legal and business analysis. It is not "legal advise" but analysis, and different lawyers may analyse this matter differently, especially if there are additional facts not reflected in the question. I am not your attorney until retained by a written retainer agreement signed by both of us. I am only licensed in California. See also avvo.com terms and conditions item 9, incorporated as if it was reprinted here.


  3. Have you spoken to your lawyer about prepping for the examination?

    I am a former federal and State prosecutor and now handle criminal defense and personal injury/civil rights cases. Feel free to check out my web site and contact me at (212) 385-8015 or via email at Eric@RothsteinLawNY.com. The above answer is for informational purposes only and not meant as legal advice.


  4. Saying I don't know implies you never possessed the information. Say I can't recall implies you had the information but can't remember it at this point in time. You must speak to your attorney about being prepped before you sit down to give testimony.

    Disclaimer- The information you obtain at our web-site or through postings on such sites as this is not, nor is it intended to be, legal advice. You should consult an attorney for specific advice regarding your individual situation. Any response given here is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response may change appropriately.


  5. For the attorney questioning you, it means that he's going to have to follow-up with several additional questions every time you say, "I don't recall." One of the primary purposes of a deposition is to discover the facts known by the other side, so as to avoid a surprise at trial. So, if the lawyers asks, What color was the color of the car you saw? And the response is; I don't know. The questioner doesn't have to worry about that at trial. But, if the answer is, I don't recall. At trial the person who didn't recall at the deposition, may have remembered at trial. If you "don't recall" anything at the depo, it might be difficult to truthfully say, you remembered everything just before trial. You should speak with your attorney before the deposition.


  6. In addition to what was mentioned earlier. The rules of evidence allow for a witness's memory to be refreshed through many different methods. If you say you don't recall, they may show you a document, picture, video or something else that may help you remember. If you say you don't know, that option would not be available.

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