Part of being a good lawyer is being a good psychologist, and a good psychologist understands the power, fragility and pitfalls of memory.

How often do you find yourself questioning your client’s narrative? Watch them struggle to relate details of their experiences, or heard them change the story? As we interview clients, we should pay special attention to their memories and our methods of extracting them. We already overestimate our own memories, but have you considered that your client has lost their memories, don’t know how to access them, is unconsciously changing the details of their memories, or remembering things that didn’t happen? You should, because that is exactly what is happening.

What Is Memory?

Memory is the process in which information is encoded, stored and retrieved. To create a memory, an experience is first encoded. Encoding allows the perceived experience to be converted to a pulse of electrical energy that travels along neural pathways to working, or short-term, memory. Working memory is the “conscious, active processing of incoming, auditory and visual-spatial information, and of information retrieved from long-term memory.” It’s responsible for holding small amounts of information for a few seconds or minutes while we do things like think, read, reason, or listen. Our working memory can only hold between 4-7 bits of distinct information, and for only a few seconds or minutes, as it must constantly discard what isn’t needed in the moment in order to make space for newer information. So, after after a few minutes, our memories begin to decay unless they are transferred to long-term memory, where we store information over long periods of time.

Memory Is Powerful and Fragile

Your memory works against you

Our memories are exaggerated projections of our worldview that are not consistent with reality. Successfully using our working memories to interpret our experiences, then committing them to long-term memory is pretty complicated, and almost anything can (and does) go wrong while we encode memories. Even as we’re retrieving them, we patch memories up and distort them all the time without realizing we’re doing it.

Take your working memory. At any given time, your working memory is working it’s ass off; storing present experiences and information, retrieving information from long term memory, and processes and manipulates it all for your immediate needs. It never stops, it doesn’t turn off. “If you turn it off,” says psychology professor Peter Doolittle, “that’s called a coma.” Your working memory allows you investigate the world around you, creatively manipulate ideas, imagine new possibilities, and make sense of your present experiences.

Despite the incredible abilities of our working memories, there are limitations. The capacity is quite small, only able to hold 4-7 items at any time, for about 10-15 seconds and it takes a lot of mental effort to hold that information. The more information we try to maintain in our working memory, the slower our processes become, we’re more prone to retrieval errors and memory inaccuracies. When you’re interviewing a client, you’re asking them to use a tremendous amount of their working memory, and they become suspect to cognitive overwhelm.

Test Your Working Memory!

Long-Term Memory

Long-term memory can preservefairly detailed records of our experiences, and with the help of working memory, allows us to recall the past fairly accurately. However, over time, the details began to fade, and other brain processes interfere, blurring our ability to recollect the truth. Test yourself; can you remember the address to an old home? Your first phone number? Teachers from grade school? It’s not just the details – entire memories can change or vanish over time, even core memories.

For instance, take the story of my grandfather’s memorial services, which my great-aunt Lorrell still vividly recalls. My grandfather Cyrus, Lorrell’s brother, passed away peacefully, and following the funeral, Lorrell and her two brothers, John and Matt, hired a small plane to fly them over Lake Powell to spread his ashes. When the time came, John opened a window, held out the opened urn, and started pouring. Immediately, the wind whipped the ashes right back through the window and covered the three of them in Cyrus’s remains. The two brothers tried frantically to close the urn and shut the window, but by the time the pilot landed, the ashes were everywhere. They spent the next few hours vacuuming their brother out of the plane and washing him out of their clothes. Lorrell now laughs telling the story, but at the time, it was upsetting.

Seems like an important memory, right? Get this; as of a few years ago, none of the siblings can agree on what happened. It’s not even about the details, but they each recall an entirely different situation. Lorell swears to the story about Lake Powell, John says they buried the urn in a cemetery, and Matt promises they spread Cyrus’s ashes while on a hike in the mountains.

Retrieving Memories

Retrieving memories is a tricky business as it is, but there are dozens of ways in which the process is vulnerable and made more complicated.

First, look at source monitoring. When your brain goes to pull a memory, it doesn’t necessarily collect the right memory, but might access a wide range of memory sources and details; your biased experience, your understanding of how events typically happen, what others have told you, what you’ve seen on TV, how you’ve imagined an event, your experience in similar situations, etc. Source monitoring errors can alter the details of a memory, introduce new elements, or change the memory entirely. It’s incredibly difficult for us to make distinctions between these sources, and it happens to everyone, especially with repeated experiences. Think about leaving your home this morning; did you turn off the coffee pot? Did you lock your door? Where did you put your briefcase when you got in the car? You certainly have memories of doing these things, but which one was today? Yesterday? Last week? Are you sure you turned off the coffee pot this morning, and the memory you’re thinking of isn’t from last month?

Source monitoring means that people’s memories are difficult to confirm, but also suggestible. Cognitive psychologist and memory expert Elizabeth Loftus has done extensive research on the suggestibility and malleability of human memory, including a study in which participants watched a film about a car accident. When they were questioned one week later, participants were asked about the speed of a car when it passed a barn. There was, in fact, no barn in the video, but 17% of participants stated they saw a barn.

Navigating Your Client’s Memory

With all of these obstacles, how can you ensure you are working with your client to get accurate, detailed accounts of their memories?

  • Consider the relationship and order of questions
    • The list of questions to ask your client is probably ordered in the way the questions came to you or in the way they make sense to you. Either way, it works out for you, but limits your client’s responses. Questions should actually be ordered according to your client’s conception of experience, which gives them the opportunity to tell their stories in a way that makes sense to them. It may take longer, and some questions might have to wait, but you’ll get more accurate and detailed information.
  • Wait to introduce documents
    • Sure, documents can be helpful in nudging memories, but they aren’t always accurate and might force clients to accept a documented reality that isn’t the truth. Interviewees might also skip over valuable information they assume is in the documents, but isn’t. Interview your clients fully, retrace your steps and introduce relevant documents.
  • Use open-ended questions
  • Focus on the facts
    • Encourage interviewees to focus on facts and steer them away from potentially distracting emotions. Concentrating on facts produces less memory errors and less unnecessary commentary.
  • Recreate the situation
    • Manystudieshaveproven that using cues or hints can help recover lost or hazy memories. Walk your client through recreating the psychological, cognitive, and environmental circumstances of their experience.
  • Multiple interviews