Litigation looks backwards. It involves piecing together moments of the past. All in the hopes of constructing an accurate and persuasive narrative. Usually at the heart of this process is memory. And parties often replay the moment at the centre of the lawsuit repeatedly.

In Presence by Amy Cuddy, she writes that the more anxious and self-focused someone is during an interaction, the more likely someone is to replay the interaction after the fact. But the moment that someone is ruminating over isn’t even real – “it’s a seriously flawed memory of an interaction”, especially if someone was anxious during it. Memories become warped and full of holes. This leads people to take mangled memories and mangle it even further. We should be concerned about this phenomenon.  Often times the moment in dispute in the lawsuit is one experienced under stress and anxiety.

The best way to counteract the flawed memory is to  look for independent evidence of the event. Memory is second best to independent proof. Memory is simply an imperfect reconstruction of events.