Brian Williams, Memory and the Law

The Brian Williams controversy has ignited a debate over whether the NBC Nightly News anchor of more than ten years should be fired or given another chance. Most have said that since he sits in a position of power and trust with this lapse in his credibility, that trust no longer remains and he should be let go. Others question whether critics have also embellished at times in their lives, and say that “he who is without sin may cast the first stone.”

In order to determine the proportion of his punishment, we need to find out the degree of guilt. It is clear that his story has changed over time. But did he intentionally change it out of a need to make himself look better, or did he actually “misremember”? Could he actually have forgotten whether the helicopter he was riding in was shot with a rocket propelled grenade? Wouldn’t that stick in his mind?

A recent New York Times piece suggests that it is possible:

Numerous scientific studies show that memories can fade, shift and distort over time. Not only can our real memories become unwittingly altered and embellished, but entirely new false memories can be incorporated into our memory bank, embedded so deeply that we become convinced they are real and actually happened.

 This is because, the article continues, memories don’t

live as single, complete events in one spot in the brain. Instead they exist as fragments of information, stored in different parts of our mind. Over time, as the memories are retrieved, or we see news footage about the event or have conversations with others, the story can change as the mind recombines these bits of information and mistakenly stores them as memories. This process essentially creates a new version of the event that, to the storyteller, feels like the truth.

 One study the article cites found that “researchers could influence how an eyewitness remembered a car crash depending on what verb they used— smashed, collided, bumped, hit or contacted— to ask about it. Participants who were asked the speed of the cars when they ‘smashed’ thought the cars were going faster than those who were asked the speed of the cars when they ‘hit.’”

This brings up some relevant experiences for us in the legal profession. Many times we are dealing with events that occurred years before. Witnesses have to remember in precise detail how the crash took place or what position they were in when they slipped at the restaurant. Not only that, in interrogatories and depositions, plaintiffs have to recall events and injuries that may have occurred ten years or more. If they misremember something then the other side will often use that against them at trial to attack their credibility. Even worse, the other side may even bring forth a motion to dismiss their case on the grounds that they have committed “fraud on the court.”

It is easy to pass judgment on those who make mistakes in recalling events. However, when we look back on our own lives we may also be guilty of the same thing. I often wonder how many of my childhood or young adult memories are exactly the way I remember them. Have they changed over time?

When dealing with these issues for our own clients, it is imperative to really think these things through before the time of answering the interrogatories or the taking of the deposition. We must study the medical records and make sure that what the client thinks happened, did in fact happen the way they remember it. Because for a plaintiff in a personal injury case, like an anchor for a national news program, your credibility is really all you have. If you lose that, then like Mr. Williams, you may lose everything you are trying for.

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