Archive for category: Cross Examination

Cornering The Witness In A Deposition | Vince Colella Delivers A Killer Cross

imageWhile we criminal defense lawyers seem to have reason to conduct the most cross examinations, once in a while one of our brothers and sisters in the personal injury/civil litigation field conduct a meaningful cross examination that warrants mention.  I’ve seen my longtime peer Geoffrey Fieger do it.  Gerry Spence too.  Both have cross examined witnesses in civil cases where corporations and insurance companies were on trial.  Recently, one of my closest colleagues/friends/warriors, Vince Colella in Southfield, Michigan, conducted a cross examination in a deposition that caught my eye.  Vince is of counsel to our firm and we used to share space together (not to mention the multiple cases that we have worked on together) so it comes as so no surprise that Vince hit one of out of the park.

Here is the exchange that caught our eye:

Vince: [Mr. Adjuster} do you have a philosophy on adjusting claims?

Adjuster: Yes, to be fair.  And, error on the side of providing coverage.

V: So, you give the benefit of the doubt to the claimant?

A: Yes.

V: Do you like baseball?

A: Yes.  In fact, I have been an umpire for 5 years.

V: So, then you are familiar with the phrase “tie goes to the runner.”

A: Yes.

V: What does that mean to you?

A: That if the base runner touches the bag at the same time the fielder catches the ball while touching the bag, the runner is safe.

V: Great.  So, in this case, you were provided with a medical opinion from my client’s treating physician.  And, you obtained one from a doctor you hired and paid for, Correct?

A: Correct.

V: You had conflicting medical opinions. Right?

A: Right.

V: Yet, you chose to accept the opinion of the doctor you hired, and paid for, over my client’s doctor? Am I correct? Well, that’s not consistent with your claims handling philosophy is it sir?

A: Um, well, I guess not.  But, ……(blahblahblah)

In this exchange, Vince revisited a common, easily understood phrase to get the adjuster to admit that where there is a doubt, the insured, driver should win.  Then when the adjuster agreed, Vince pounced to point out how the adjuster wasn’t applying the very rule he adopted a few moments earlier.  A killer cross examination.

Cornering The Witness/Informant

img_2120.jpgWe just finished two (2) long trials.  Both involved difficult facts and difficult circumstances.  And both involved informants or cooperating witnesses testifying for the prosecution.  Cross examining a cooperator or informant is not for the feint of heart … it requires listening, persistence, patience, wit and a plan or attack.  Some lawyers just want to get up there and yell and scream.  Those lawyers rarely succeed during a cross examination of an informant/cooperator.

In our most recent trial, we were confronted with two (2) cooperating witnesses.  We’ll write more about the cross examinations of these witnesses in the coming days but suffice it to say that we had a plan of attack for each and we executed that plan.  Court observers claimed that they didn’t believe either witness.  But I digress …

In another recent trial, one that last several weeks, we were confronted with one of the most challenging witnesses around — the cooperating accomplice who is willing to admit every prior lie, misdeed, etc.  This witness is street smart and is willing to light himself on fire so long as he lights the accused on fire as well.  Think of a mob movie with a smart-alecky turncoat “snitch” on the stand who tells jokes, laughs at himself and others and is good with a comeback or two and you’ll start to understand the type of witness that we just dealt with in this trial.  But there is a way to effectively cross examine this witness — you have to corner him in ways that he doesn’t expect it, with a series of questions where the witness will likely lie to avoid looking bad.  You see, its easy for someone on the stand who is getting a deal to admit to having lied to the police or having committed crimes — they know that the prosecutor, judge and jury already know that about them.  They have embraced those facts and they are willing to admit them.

But if you can corner the witness into situations where he is forced to admit facts that make him look bad, that reveal the core of his character, i.e., things that he wasn’t prepared to have to admit to, he will naturally lie or have to admit being a con.  This is the gold of a killer cross examination.

During this cross examination of this witness, we cornered the informant/cooperator twice to such a degree that even the judge knew he was lying and the judge jumped in and actually pointed out that the witness was lying.  Here are two (2) excerpts —

In this excerpt, I confronted the witness with his looked the cops right in the eye, on the scene, and lied.  The witness didn’t want to admit that … he was prepared to say that he had lied at the police station but he wasn’t prepared to reveal that he had the ability and character to lie on the fly (so to speak) and to do so convincingly.  Even the judge knew he was a “deceitful guy” and called him out on it:

informant x- Judge Recognizing 1

You see the trap?  When the witness was cornered, he didn’t want to admit the truth but he didn’t know what to say.  When he paused and hesitated, the judge called him out, admonished him and even called him a deceitful guy.  It doesn’t get must better than that.  Or does it?

In this next excerpt, I cornered the witness again.  The judge saw the witness trying to lie and called him on it too.  The witness didn’t want to admit that he was going to get insurance proceeds that he wasn’t entitled to … he realized how that made him sound to the jury:  bad, devious, deceitful.  So, the witness tried to lie:

killer x - Judge Recognizing 2

He was cornered with having to reveal his true character, his true self and he didn’t want to.  Instead, he answered “I can’t answer that.”  This was a copout of course.  But the judge wouldn’t have any of it … the judge called him on it again.  Again, it doesn’t get much better than the judge calling the witness a liar during a cross examination.

When confronting a witness, make sure to corner him with having to admit that he is a liar/or scoundrel or watch him try to squirm out of it.  If you have a judge like we had, the judge will recognize it too and even help you prove your point.  Either way, the jury will see and understand what’s happening.

Neil Rockind
Rockind Law

 

Listening And Watching – Use All Your Senses

I’ve often watched lawyers in trial frantically writing down whatever the witness is testifying to on direct examination.  The lawyer writes the witnesses answers on one side of a piece of paper and then writes comments on the other side.  Head down, face buried in his/her pad, pen frantically writing, the lawyer thinks that he’s doing his job.  He’s not.

In the middle of trial is no time to become a stenographer or scrivener.  Sure, you want to note some things that the witness is saying to remember them or have them available for cross examination or closing argument but not everything.  If you’re doing that, you’re depriving your client and you of one some of your most important senses — the ability to see and listen.

In the middle of our white collar criminal trial, this part of a killer cross examination, i.e., listening and watching during direct, proved itself invaluable.  As the witness was testifying, he seemed like he’d be difficult to break or neutralize.  But the more I listened to his tone and watched his demeanor, I could sense that he was hiding something:  his axe to grind with our client.   He had asked for a raise and hadn’t gotten one.  He tried 3x and was denied.  Then he decided to change his “tone” he testified.  It dawned on me, by watching and listening to him that his demeanor was likely what had resulted in him not getting promoted but instead of blaming himself, he blamed our client.  Because my head wasn’t in my legal pad, I could use my senses to pick up on it and I did.

On cross examination, his tone and demeanor was revealed:

Q:  You’re not acting differently in court than you do elsewhere are you?

A: No.

Q: So this is how act at work too, right?

A: Yes.

Q: You raise your voice and get loud then right?

A: I’m passionate.

Q: You don’t think your employer is allowed to consider your demeanor and tone when deciding whether to promote you?

A: I should be treated the same.

Q: So you’d deny your employer the right to consider your demeanor and tone?

A: I should be treated equal.

Q: So you feel that you weren’t?

A: Yes.

Q: And you blame (our client) for that, right?

A: He’s the one that didn’t give me a raise.

Q: And you blame him?

A: Yes.

By listening and watching, I could pick up on his animus towards our client.  No one would seriously think he was well suited for a job – his demeanor was horrible.  By watching and listening, we were able to pick up and develop the basis for this witnesses bias and even highlight to the jury how his behavior in court likely resembled his behavior at work.

A killer cross examination requires listening and watching and taking your face out of your notepad so that you can use all of your senses.

Florida notice could give ‘White Boy’ Rick Wershe first taste of freedom in 30 years (Press – WDIV)

Florida notice could give ‘White Boy’ Rick Wershe first taste of freedom in 30 years

Wershe faces prison time in Florida for role in car theft ring from behind bars

DETROIT – The Local 4 Defenders are following two new developments in the “White Boy” Rick Wershe case, one in Michigan and one in Florida.

An extradition hearing has been set pending Wershe’s upcoming release from Michigan prison after nearly 30 years.

The process is starting to move quickly in Wershe’s case. First up is an extradition hearing in Michigan. If he has to go to Florida at all, he can be released in Michigan and then go to Florida to turn himself in.

Wershe is a man in limbo with courts ready to take action in Florida and Michigan. During the extradition hearing in Michigan, Florida must prove it has the right to transport Wershe from the Michigan prison to a Florida prison for his role in a car theft ring while behind bars.

Local 4 legal expert Neil Rockind said because Wershe is expected to waive his right to extradition and willingly go to Florida, it will be a quick hearing with little drama.

“The hearing itself will take place in front of a judge,” Rockind said. “It will be extremely brief. The judge will get presented some documents that show that Florida wants him, and that Michigan and Florida are both part of this compact, and that Rick Wershe is who they say he is.”

On Monday in Martin County, Florida, attorney Wayne Richter announced that he will represent Wershe on a request for a furlough hearing, which would ask Florida to save the time and cost of coming to Michigan to pick up Wershe and allow him to turn himself in. It would give Wershe a small amount of time to visit with his family before being admitted into the Florida Department of Corrections.

“They’re going to try to make a plea that Florida does not have to, it is not obligated to spend the money and go get him,” Rockind said.

Wershe is hoping to convince Florida to forgive his entire sentence, arguing his 29 years behind bars for a juvenile drug offense is more than enough time for both his offenses. But that fight will only come after the extradition hearing in Michigan.

“I just want to get down there and get it over with,” Wershe said. “If I have to go, I have to go. I’m not going to avoid it. I just want to get started.”

There’s no set date or location for the extradition hearing. It could take place up north, where Wershe is in prison, or in Detroit, where he committed his drug offense. It will happen soon, because right now, Michigan is paying to house Wershe.

After the hearing, Florida taxpayers will pick up the bill.

If Wershe is allowed to turn himself in, that would be his first taste of freedom in almost three decades.

Copyright 2017 by WDIV ClickOnDetroit – All rights reserved.
Via WDIV

“When the witness is digging himself a hole, keep the shovel in his hands”

Killer Cross Examination Snippet from P v Morrow

“When the witness is digging himself a hole, keep the shovel in his hands”

Killer-Cross-Examination

The informant took the stand to attempt to finish his “work” for the Straits Area Narcotics Enforcement (SANE) drug team. He thought he’d be cagey and try to argue with me as I cross examined him. Ask those in the attendance whether his caginess or attempt to “talk back to me” worked. I suggest that most in attendance realized that he was only digging himself a deeper a hole.  I kept the shovel in his hands.  

Here is a summary of just one portion of the killer cross examination of this informant-witness:

 Q:        You would lie to get yourself out of trouble?

 A:         No.

 Q:        You’ve admitted as much under oath in the past, right?

A:         No.

Q:        You testified in oath in {this other case}?

 A:         Yes.

Q:        Weren’t you asked this question, “You would like to get yourself out of trouble?” and your answer was, “Yes.”

A:         Yes.

Q:        So you lied earlier today?

A:         No.

Q:        You denied that you’d lie to help yourself get out of trouble and you denied that you said that under oath earlier.   Those were lies, right?

A:         Yes, I guess.

Q:        There’s not much to guesswork in that is there?

A:         I don’t know what you mean.

A killer cross examination can expose the witness’s willingness to lie but also by addressing each aspect of the lie, e.g., in the past, in the present, etc., reveals the witnesses willingness to continually lie even in court.  When a witness is digging himself a hole, make sure that you keep the shovel in his hands and get him to keep digging. 

(This is a summary of an excerpt of one portion of the cross examination of the informant.   It is not meant to state that this is an identical transcript or verbatim copy of the transcript.)

Stay tuned from more revelations from the cross examination of the informant in the Morrow case as well as cross examinations of the officer in charge – those too proved to be quite revealing.

 

Twisting Them Up

Once in a while, if the cross examine is persistent enough, a witness just loses his cool.  The witness, pressed for information by a dogged cross examiner, becomes impatient and reveals that he is just not believable by answering a question defiantly and nonsensically.   A killer cross examination can reveal a witness to be unhinged and unreliable.

In this case, a police officer was trying to fence and parry with me as I cross examined him.  He was cagey, as thought he was trying to think too much about what the answers meant rather than just answer the questions.  After hearing him testify that he called a uniformed officer to the scene for a “police presence”, I pressed him on the true meaning of that concept.  I was trying to establish that my client was not free to leave and the police presence rendered him detained.   Read along and watch for the officer losing it, i.e, becoming unhinged and offering up testimony that was defiant, blubber and nonsense.

Cop - Twisted Police Authority 1

Cross- Police Authority Twisted 2

Cross Police Authority Twisted 3

Cross Police Authority Twisted 5

The killer cross examination trapped the officer into the image of a “police presence” and after it was too late, he tried to argue, obfuscate and talk his way out of it.  His answer to the strong police presence question was argumentative, meandering, rubbish, blubbering and nonsensical.  It reads like he was babbling and it was only worse in person.  He should have conceded the point but didn’t want to give us something valuable and helpful to our case.

This is an effective part of a cross examination — force the witness into a compromising position and force him to either concede the point with helpful testimony or testify as this officer did — nonsensically.   This officer chose to argue further undermining his credibility.

Stay tuned for more killer cross examination segments as we have a whole new batch of transcripts to discuss and talk about.

 

Memory

Sometimes, you catch a witness testifying so vaguely on details and so similarly to their statement or police report that it seems like the witness has no independent recollection of the events.  A killer cross examination can expose this witness’ attempt to testify without an adequate memory or recollection.

In a recent drug case, I caught a police officer doing just that — repeating what was in his report and failing to offer any significant details other than those referenced in his police report.  I sensed that he had no recollection of the even and instead was just testifying from his report.  Here is how I exposed his lack of memory:

Q: officer, are you testifying from memory or from your report?
A: memory.
Q: you sure that you have an independent memory of the incident?
A: yes.
Q: what was the type of door?
A: i don’t know.
Q: what color was it?
A: I don’t know
Q: were there windows on it?
A: i don’t know recall
Q: what was the floor material?
A: I don’t recall
Q: what were the walls made of?
A: I don’t recall
Q: what was the layout?
A: I don’t recall
Q: how many jars were there?
A: I don’t recall. many.
Q: what is many … help us out please?
A: I don’t know. maybe 20
Q: where was my client when he was ordered to the ground?
A: he was ordered to ground.
Q: you saw it?
A: yes.
Q: where?
A: I don’t recall.

By probing and not being afraid of his answers, I exposed that he had no independent memory of the event.  During this cross examination, I exposed this officer and his colleagues in other ways too.  All were crippling to their credibility.  Stay tuned for more stories from this cross examination.

You’re Holding My Pen: Proving A Point During A Cross Examination

The Phone

It was quite a sight.  The seasoned police detective had been on the witness stand for awhile.  He had testified on direct examination and been cross examined for a while by several lawyers.  The “the pen” happened.   “The pen” is one of those moments that makes the courtroom stand still and it did here as well.  Want to know what happened?  I bet … read on.

One of the state’s arguments was that text messages on a phone found in my client’s pocket were sent and received by him.  Mind you that none of the texts mentioned his name, initials, nickname nor bore any identifying information that they were sent by him.   There was no identifying information that the phone even belonged to my client other than the fact that it was in his pocket.  The state didn’t know if he had picked it up with plans to use it, picked it up and put it in his pocket or if it was his and he had lent to another.  It had no evidence that the phone belonged to him and that the texts were sent by and received by him.

Nevertheless, the state and detective fought to tie those texts to my client.  It’s principle argument was that the phone was in my client’s possession and thus … it must be his and … thus the texts must be his.  “The pen” did a lot to disprove

The Pen

blue-bic-biro-pen

As I was cross examining the detective, he was fiddling with a pen.  I smiled and asked him about the pen.  It went something like this …

Q:  you’re holding a pen?

A:  yes.

Q:  where did you get it?

A:  it was up here on the stand.

Q:  you just picked it up?

A:  yes, I guess so.

Q:  are you aware that is my pen?

A:  no.

Q: So the fact that you’re holding it, tells us nothing about whose pen it is?

A:  I guess not.

Holding my pen, “the pen”, the detective had proven our point about the phone.  The fact that someone holds or possesses an object tells you very little about who owns it and who was using it previously.  The fact that a phone was found on my client at one moment in time tells us little about whose phone it is and who used it to text.

How did this develop?  Active listening and paying attention in the moment.  I have long advocated that lawyers should while cross examining should avoid being overly wed to a notepad or a list of questions.  Being fixed to a set of questions prevents the lawyer from watching, listening and reacting to what is actually happening with the witness.   As I was cross examining the detective, I observed him holding my pen.  At that moment, in real time, I realized what opportunities were available if I put the right questions to him.  And so … I did.

The pen.  The real time cross examination.  The points made.  A killer cross examination.

The Power Of Good Cross – Judge And Cop Had Private Conversation Before Affidavit Sworn

Bad cross examination wastes time and typically sinks the client further into the abyss. Good cross examination however is revealing… It reveals facts, motives, biases and errors that would otherwise be covered up or overlooked.  Today, a good cross examination exposed the blurred lines between the judiciary and the police, a frequently occurring phenomenon as judges act more and more like members of law enforcement and not independent referees or ministers of justice.

Today, I cross examined a police officer on his conduct.  It was extremely productive but one subject it was eye opening:

He admitted that prior to being sworn in or submitting an affidavit to the judge, he had a telephone call with the judge where he gave her details and she even asked questions.  The off-record conversation was not recorded, was not on the record and it was usworn.

My jaw hit the table. The office reluctantly admitted as much and only after he realized what he admitted did he try and back away from it but … there it was.

I’m Not Going To Be Cross Examined By “That” Lawyer

So the worst kept secret in Michigan is out:  it is not fun to be cross examined by me.  Not fun at all.  I wouldn’t compare it to getting one’s teeth pulled.  However, I would compare it to trying to out punch your shadow.  Trying to fend me off is tiring and usually pointless.  It is a fight that can’t be won.  But, you don’t have to take my word for it … take the word of others that have watched it first hand or experience it.

One person watched the officer’s eyes as I walked into the courtroom, and he swore that they showed fear in their eyes.

There are other stories too:

The retired police officer that reminds me on social media what it was like to be cross examined by me.  Every time we post a transcript or a video, he comments and chuckles and reminds me of an encounter we had.  He dreaded the experience.

Or, there are the thousands of people that watched our YouTube.com videos of my cross examinations of a Michigan State Trooper in a circuit court trial.   Read the comments … you’ll see what they think.

But one stands out to me.  I cross examined several witnesses in a personal protection order hearing and some of the potential witnesses watched me do it. They were going to be witnesses for the opposing party.  One look and they changed their minds.  They said:

I’m not going to be cross examined by that guy.

snody-rockind-crosssnody-rockind-cross

Pretty high praise for my style of cross examination.  Killer Cross Examination.

 

Neil Rockind