Memories – Another Obstacle to Understanding

In The Empowered Paralegal: Effective, Efficient, and Professional we discuss extensively barriers to communications and understanding that can affect our ability to work optimally with our clients: cultural, generational, educational, and similar barriers. We also discuss ways to remove those barriers and manage communication to maximize understanding. I later apply those same concepts to the elder client in The Empowered Paralegal: Working with the Elder Client specifically dealing with some of the problems caused by the natural changes in memory that come with aging. Now a post in ABAJournal.com indicates that, regardless of age, memories can change with each recall according to a study by Donna Bridge, a postdoctoral fellow at Northwestern University Feinberg School of Medicine.

While I had not previously given this much thought, now that it is pointed out I do recall observing this phenomenon many times during the course of my legal career. The ABAJournal.compost quotes Bridge as saying in a press release, “A memory is not simply an image produced by time traveling back to the original event—it can be an image that is somewhat distorted because of the prior times you remembered it. Your memory of an event can grow less precise even to the point of being totally false with each retrieval…Maybe a witness remembers something fairly accurately the first time because his memories aren’t that distorted. After that it keeps going downhill.”

In a more general sense this can obviously be a trial in any legal action, civil or criminal, and when providing other services to clients. It is another barrier to communication and understanding. So it is incumbent upon us as legal professionals to work on ways to manage the effects of this phenomenon. As with other barriers we start be recognizing it as a problem. This will lead to more practical actions. Minimizing the times a client has to tell her story (first to the paralegal, then to the junior attorney, then to the senior attorney, then to the expert, then at the deposition, then in trial testimony…) We all already attempt to get the client or witness as soon as possible after an incident to record their statements before those statements are given to a police officer, an insurance adjuster, etc. This adds to the importance of both getting that first statement and recording it for the benefit of review by the client/witness before they need to re-count the incident again. Perhaps it would be best to write out our notes from a client interview, have the client verify that we got it right, and have that account available in full both to inform others of the incident without the client having to tell the incident again and to refresh his memory before the next rendition. (Although I can see some downsides to this.)

Any thoughts on this?

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