Trial Advocacy


Refreshing recollection occurs when a witness doesn't remember a fact or when a witness that you don't want to impeach gets a fact wrong.

You want to prepare your witness to know when you need to refresh his recollection and what will help.

  • "Are you sure it was X?" → "No, I'm not sure."
  • "Is there something that would help refresh your recollection?" → "My deposition would."
  • The witness has to say what will help refresh his recollection. If he just says something will, you have to ask "What?" Only if he then doesn't know can you suggest something.

You then show opposing counsel, ask to approach, hand it to the witness, say "I'm handing the witness his deposition", and ask the witness to read it silently. Then, you have to take the document back before asking if his recollection has been refreshed.

Don't script in a refreshing. Just be prepared if it happens.