“Actions Speak Louder Than Words” – A Recent Killer Cross Examination – “The Cross of Gray”

A theme can make all the difference between a rayood cross examination and a killer cross examination.  Our them was “actions speak louder than words.”  This is the story of the cross examination of a seasoned officer based on a theme of “actions speak louder than words.”

The hearing in the racketeering case began on a Tuesday.  The prosecutor, a seasoned veteran of the Michigan Attorney General’s Office, was going to hang his proverbial hat on the testimony of a single witness:  a veteran police officer who was the Drug Task Force Director of a neighboring county.   For days, five lawyers, Matt Newburg, Michael Komorn, Paul Tylenda, Noel Erinjeri and I sat in court each questioning witnesses and our own clients attempting to show the unfairness of our client’s arrest and prosecution.  One by one, our client’s took the stand and each told their story as best they could.  Each time one finished, the prosecution would cross examine the client’s aggressively.  In the end, we all knew that the case would boil down to one (1) witness, a retired officer.  It was obvious that the case would boil down to a credibility contest between our client and the officer.

Before the officer testified, I questioned the officer in charge.  By the time I finished questioning the trooper, we had laid the groundwork to show the officer’s testimony was likely to be untruthful and that the state was too quickly and without appropriate caution embracing the officer’s claims.  The officer was denying, wholeheartedly, that he had sanctioned and advised our clients that their business was legal and in compliance with the law.  Prior to the officer testifying, one prosecutor assisting the prosecution was so concerned about the officer’s testimony that he spent time prepping the officer, e.g., showing him photographs, emails and other items that had been admitted in the days proceeding.  By the time the officer appeared for testify, the prosecution was advising each other that “he’ll be golden”, “[the officer’s] going to kill it”, etc.

After the prosecution finished its direct examination, I stood to cross examine the officer.   I decided to separate his current statements in court and those made to the police from his actions at the relevant period of time.   I would compare his words now and his actions then.   Soon, the officer admitted that actions speak louder than words and we examined his actions.   His actions and inaction would prove his downfall.  I ended my cross examination by pointing out that the way he described the relationship between my client, the reputed racketeer and drug dealer, and himself: professional, courteous and decent.  The way the officer described it, it remind me of a scene from Looney Tunes:

Sam_and_Ralph_clock

Stay tuned as we go deeper into the “actions speak louder than words” cross examination of this retired officer.

Listen. React. Cross Examination

Look up.  Listen.  Hear.  Think. React. 

“Killer cross examination” requires that the cross examiner do each of these things while questioning the witness.  

  • Look up: take your eyes off your notepad. Look at the witness. What is he doing? How is he acting? 
  • Listen: as you watch the witness, listen to his answers. Not just the parts where he answers your questions but joe about what he’s not saying or stopped himself from saying? 
  • Hear: feel what he is trying to say or implying?
  • Think: actually process what is happening in the moment. In real time. 
  • React: don’t be afraid to use the information that you’ve gathered in real time to challenge the witness.  You’re likely right…try it. 

As an example, this exchange just happened in a cross examination that I conducted: 

Q: his speech wasn’t slurred?

A:  it was hard for me to tell because it was obvious that he was … I couldn’t … 

Here was some active listening and hearing…the witness was about to say something and then stopped himself…I caught it and wanted to follow up.  I had an idea he was going to step into something huge. 

Q: hold on… You were about to say something. You were about to say obvious that he was and then stopped yourself? 

A: yes. 

Q:  finish your thought…it was obvious that he was what? 

A: an Arab. 

Boom.  He didn’t want to say this but now because I was listening and hearing and thinking, he had.  He was done. 

Q: you could tell he was an Arab just by looking at him?

A: yes. Can’t you? 

Q: I don’t judge people in thay way. What about him? 

A: you know, just the way he looks. 

Q: no, I don’t. His hair? Eyes? Skin? What? 

A: all of it. 

At about this point, the prosecutor objected but it was too late. His prejudice had been exposed.  How? I looked up, listened, heard, thought and reacted. 

Killer Cross Examination Is Effective

While we normally don’t put quotes or testimonials on this website and instead reserve it for cross examination pieces and excerpts, I thought it appropriate here.  We just finished an OWI/DUI – 3rd Offense trial in which our client was acquitted.  Every one of the state’s witnesses testified “for the defense.”  How is that possible?  Killer Cross Examination.  

The client, publicly, shared her observations of the effectiveness of the style in a recent post on www.Avvo.com :

“He strategically cross examines the witnesses against you in a way that I think they even start to believe that they’re wrong for even being against you.”

Stay tuned for more cross examination tips from Neil Rockind, author of killer cross examination.

If A Cop Could Tap Out During Cross Examination – This Was That Time

Ronda Rousey is famous for her ability to quickly force a victory by submission in professional mixed martial arts fighting.

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Getting opponents to tap out, i.e., submit and quit, is quite an accomplishment and Rousey has it down to both a science and an art form.  The tap out, i.e., sign of submission, is just that — a literal “tapping” of the fingers or hand.

Some police officers, during a killer cross examination by yours truly, have clearly wanted to tap out or submit.  At some point in the cross examination, I can sense when a witness wants to tap out, if only there was some way to do so.

We recently tried (to jury) a drunk driving case in which the police officer, undoubtedly, wanted to tap out.  Some cross examinations produce one, two, maybe three good exchanges between the examiner and the witness but this cross examination was relentless — the officer at one point looking like he wanted to tap out.  Take a peak at how in each series we setup the so-called submission move, i.e, the powerful moments where the witness is admitting that his prior testimony was incorrect, he erred, he was lazy/made assumptions or is undermining his case.  Imagine him sitting there, not knowing when it will end and wishing for a way to make it stop, i.e., to tap out.

The Driver

At the scene of the stop, our client claimed that another man was driving the car and had left prior to the officer arriving.  The officer attempted to suggest that he searched for records of the other individual.  That didn’t go well:

Q:  how’d you spell the last name that you looked up?
A:  multiple ways.
Q:  tell me.
A:  (cop does one)
Q:  others.
A:  (cop does one more)
Q:  wouldn’t a way to see if the accused has a friend or connection named that be to check Facebook for a Facebook friend?
A:  I suppose.
Q:  if he has a friend with a name like that, wouldn’t a way to see whether or not you got the name correct to check Facebook?
A:  yes.
Q:  you didn’t check.
A:  no.
Q:  when you ran [that name] through CLEMIS or LIEN and claimed that nothing showed up, you’re purpose was to suggest to the jury that this person doesn’t exist?
A:  attempting to suggest that there’s been no driver, nobody came forward.
Q:  that’s not the defense’s responsibility, to prove a defense, is it?
A: no.

As bad as that sounds, it only gets worse:

Q:  The quality of the search of the name is only as good as the names you type in?
A:  Correct.
Q:  you’ve heard of garbage in, garbage out?
A:  we’ve seen one in another in court on this case before right?
Q:  you never once asked me how the name of the driver was spelled, did you?
A: no.
Q:  you made an assumption about the name?
A: I used what I heard and what I —
Q:  What you heard?
A:  what I heard on the video?
Q:  so if you heard it wrong that means that the name you looked up is wrong?
A: correct.
Q:  so your search doesn’t tell us very much does it?
A: correct.

At this point, I recall the officer looking around as though he wanted to be anywhere else.  However, this exchange was within the first 6 pages of my cross examination of the officer.  In other words, this was the beginning.

The House Was Dark

The officer also tried to testify that when he pulled up, all of the lights were off in my client’s house and thus, he concluded, that our client had not come from his house to his car to get something but instead had just returned from driving.  Like the subject of the name of the driver, this cross examination section was devastating to the officer’s credibility.  While “Gotcha” moments rarely happen in court, we produced one here.

In order to pull off what you’re about to read, you must thoroughly prepare to cross examine the police officer.  I don’t mean “read the police reports” but rather, you have to think about each strand of the officer’s claims and examine them from different angles and different perspectives asking:

  • is this true?
  • could be this an an exaggeration?
  • how could this wrong?
  • is this an assumption?
  • etc.

When the officer claimed that there were no lights on in the house, I was curious if that was true.  I imagined a moment in which I could show lights on in the house … I thought how devastating this would be the state’s case:  a true “gotcha” moment.  I planned.

First, I watched the video carefully and at a painstakingly slow speed.  After multiple frame by frame segments, I saw it … the house and a light on inside.  Second, I noted the time.  Third, I took multiple still photos from the video program itself, from my computer still photograph program and with other devices.  Fourth, I identified every possible landmark I could and pointed to them with an indicator.  Last, I took daytime photos to show the same angles and landmarks.   My plan, unfurl this examination piece by piece so that the officer was trapped and forced to reveal that he was wrong and had made a devastating and prejudicial assumption.  To the person watching, it would have seemed like I was just up there talking to the cop about this stuff but this was the product of a plan and the execution of the plan:

IMG_0001

When I question the officer about which house was the accused’s, you’ll notice him fight and obfuscate a bit.  I don’t mind at all … to me, he is walking right into the cross examination trap that we’ve laid out for him.

IMG_0003

 

 

Because he tried to suggest that “he didn’t know” which house it was, we start identify landmarks for him to “assist” him and to show the jury that he is not being forthright.IMG_0004

At this point, using our exhibits, I attempt to identify several landmarks for the officer:IMG_0005 IMG_0006

As you observed, I continued to use our exhibits to identify the house for the officer and jury.  We identified two ceramic, distinctive and unique lawn ornaments and zeroed in on those and the house between them and as you’ll see, the cross comes together at this point.  The evidence is undeniable and devastating:  the house between the lawn ornaments (the balls) is the accused’s house and …. there is a light on in the house.  Which leads to the final questions:  there was a light on in the accused’s house and that he was wrong about the absence of a light.IMG_0007

That’s a light on in the house you’ve identified as [the accused’s] house, isn’t it? Here is the answer —

IMG_0008

The cross examination continued past this point but the killer cross examination approach had already won the case.   The witness made assertions and those assertions turned out to be wrong and, worse, were proven wrong before the jury.  Just as Rousey does in her matches, she goes for a submission early on and is typically successful.  This is no accident.  My killer cross examination did the same … if the officer could have tapped out then, he would have.  Several hours later, when the proofs were in, the jury did it for him and found our client not guilty.

Looping – Pat Down

We are taught to ask short questions on cross examination. In fact, some proponents of certain styles of cross examination proclaim that you can cross with one word, eg, “green”. 

Q: the car was a foreign make? 

A: yes. 

Q: with 4 doors? 

A: yes. 

Q: not white? 

A: correct. 

Q: not black? 

A: correct. 

Q: green?

A: yes. 

But sometimes longer questions are necessary or preferable.  This is particularly true where you are “looping”.  Looping is the repetition of a favorable fact in successive questions.  It reinforces the fact and even ties it to new facts.  Looping makes questions longer, but ties the positive fact to a new fact.  Here is an example of my looping favorable testimony in a case where I’m challenging a pat down:  

  
“Not knowing what [he] had is not a sufficient basis to conduct a pat down.”  By looping this fact into successive questions, I reinforced the unlawful basis for the pat down. 

“32” Questions To Get To A False Statement

After the hearing, the prosecutor attempted to pay me a compliment: “I leaned in to tell the OIC that if I were in trouble, I’d hire you.”  I accepted the compliment.  I had just finished cross examining an experienced police officer, on the force for over 15 years and an experienced witness. He was battled tested.  He wouldn’t go down easy.  But down he went. 

Trapped by my killer cross examination, he was stuck: he wrote his report without referring to an odor of marihuana in the storage shed but was now caught.  I was pushing him on the lack of an reference to an odor and he was struggling.  He knew he was caught.  He was investigating a marihuana case and entered into a storage unit with allegedly 25+ poinds in packages and he didn’t put in the report that there any odor of marihuana in the unit.   Despite admitting he put all relevant information into his reports, he hadn’t done it here.  He was now trying to find a way out.  For about 32 questions, he danced, shucked, jived, moved, ducked and dodged. Kind of like 

  
I was relentless. 

Q:  you don’t remember an odor? 
A: I’m not saying that. 
Q: you didn’t put it in your report? 
A: I wouldn’t in a marijuana case because it is obvious that there’d be a smell?
Q: that sounds like an assumption?
A: what is your question?
Q: when you say in a marihuana case it’s obvious that there’d be a smell, you’re assuming? You’re assuming that there was an odor of marihuana? 
A: I’m assuming. Correct. 
Q: you think it’s ok to assume? 
A: no. 
Q: don’t assume please… Back to the issue… you don’t recall when walking into that room that you smelled an odor of marijuana? 

A: you’re trying to trap me into a yes or a no. 
Q: officer, I’m just trying to get an answer to a question…
A: I would never put it in my report, that’s why we have the canine sniff. 
Q: but dogs can detect odors that humans cannot, correct? 

A: yes. the canine sniffed it so I wouldn’t put it down it in my report. 
Q: it’s relevant informantion, right? 
A: well, the canine sniffed it. 
Q: it’s relevant information given your earlier acknowledgment that where there is no odor, a person in the area might not know that marijuana is nearby?

A: I wouldn’t say that I didn’t smell it. 
Q: you’ve had other cases? 
A: before and after. 
Q: there was no odor, that’s why it’s not in your report? 
A: that’s a different question. 

And so it went until the very end of my cross where he decided to jump in with both feet:  he claimed to smell an odor of marihuana in the room.  32 questions later! 

My last question summed it up: 

Q:  were you sitting in the gallery, you wouldn’t think a witness testifying similarly was credible, right? 

Of course the prosecution objected but we all knew the answer.  It was not credible.  

Unsettling A Complainant With The First Question

In 2011, I undertook the defense of a son whose father accused him of embezzlement, thefts and other financial crimes.  We anticipated a dogfight with the complainant, my client’s father. Why? He was a too proud man who was upset at the financial devastation that visited his veterinary practice and personal life.  He was too proud to take personal responsibility and so when he needed to open up his veterinary practice again, he used his son to do so. How? He had his son lease the space for the business and entered into a management contract with him to manage the business. However as soon as he got what he wanted, he tried to terminate his son’s contract and then claimed that his son stole hundreds of thousands of equipment and then accused the son formally causing a criminal charge.  

I defended the case and steeled myself for a difficult cross examination: a father accusing his son knows that his relationship is over and so will stop at nothing to make the charges stick.  The dad went “all in” and I figured his resistance to cross examination would be the same.  I developed a plan to throw him and make him look petty early on.  In fact, my plan was do so with the first question. 

Here it is: 

 I called him “Mister”.  Yes, I believed that he’d be a small, arrogant man and so I tested him with my first question: I referred to him as “Mr.”.  His reaction was priceless, predictable and started him off on the wrong foot.  Here it is: 

  
When he corrected me, I was a nice as could be but continued to bait him. He took the bait. 

For the remainder of the examination, he argued, evaded and fought with me.  At one point, he was caught in a terrible contradiction: property that he was claiming his son took had been paid off at a sheriff’s sale earlier in the year. How could that be? How could the same piece of equipment have still been there for his son to allegedly steal when it was seized and sold previously.  It couldn’t.  

Towards the end of my cross examination, the judge asked us to step into his chambers.  He advised us there and again on the record that he was not persuaded by the evidence and was dismissing.  He said “what’s the point of waiting to do what I’m going to down the line?”.  The case was won on killer cross examination alone. 

Throwing the witness off with the first question — killer cross examination. 

Finishing A Cross Examination With “Zing”, Vince Colella Nails A Cross Examination

Vince Colella is one of the finest, most thoughtful and aggressive personal injury lawyers that I know.  He loves good cross examination and is a proponent of killer cross examination, my style of cross examination. He shared a story of a recent cross examination with me in which he used an opposing lawyer’s attempt to badger a witness about poor record keeping as the backdrop for his client’s claims.  According to Colella, the insurance lawyer did such a thorough job of beating up a witness that the only person left that could testify, offer exhibits and prove the amount of work that his client performed was his client.   In short, per Colella, he was able to use the opponent’s tactics to “zing” the lawyer’s client (an insurance company) and to make his client’s case stronger.

The Case

Colella has a client who was involved in an auto accident. He made a claim to the vehicle owner’s insurance company, State Farm (SF), for wage loss.  Colella’s client worked as an independent contractor for a general contracting company (General Contractor) that did home restorations for bank foreclosed properties.  State Farm disputed the wage loss claim and accused the client of producing fraudulent documents pertaining to the jobs he worked, ie, 1099’s, etc. 

In an effort to develop their defense, State Farm issued a subpoena to the General Contractor and requested that he bring all of the documentation related to the client’s work, pay, financials, etc.  Like many small business owners, the General Contractor is a poor record-keeper.   In response to the subpoena, the General Contractor appeared without the documentation.  The General Contractor testified that he had 30 – 40 independent contractors doing odd jobs and that he did not document each and every one of them.  He also testified that he “probably” issued work orders, 1099’s and payment receipts, however, he did not keep all of the records for the client’s file.

At this point, the State Farm lawyer attempted to pounce on the witness, the General Contractor.   Pursuing a style of cross examination that I do not advocate, i.e., the aggressive, “ballistic” style of examination that some people associate with trial lawyers but is largely ineffective, the State farm lawyer starts badgering the General Contractor about his poor record keeping.  The State Farm lawyer begins to insinuate, through her examination, that if the General Contractor did not have the documentation, it is not due to poor record-keeping but rather something more sinister — that Colella’s client did not perform the work.  This is quite a bold suggestion but the State Farm lawyer continues to insinuate and assert this position through her questioning.

Patiently watching the State Farm lawyer browbeat the General Contractor, Colella saw that his strategy was working:  the insurance lawyer looked like she was beating up on an everyday businessperson being dragged into a lawsuit that he wanted nothing to do with.  Additionally, Colella could see the light at the end of the tunnel and at the conclusion of the insurance company’s lawyer, he sprung two questions on the General Contractor, the questions that he knew patiently awaited him as long as the opposing lawyer beat up the General Contractor to the point that he could not offer any sound evidence or proof of his client’s work.  Colella knew one thing for sure — his client kept meticulous records of his work and so after watching the insurance lawyer destroy any chance that the General Contractor could refute his client’s records and testimony, Colella sprung the trap:

Colella: “Sir, I gather from the 2 hours of testimony today, that you are a poor record keeper, true?
Deponent: Yes sir.
Colella: So, if you didn’t maintain these records, then I assume that my client is in the best position to verify the work that he performed and the payments he received, true?
Deponent: Yes sir.”
Colella: No further questions.

By understanding that his opponent would attempt to destroy the General Contractor, Colella knew that his client would be the only witness left standing to be able to prove how much he had worked.  Moreover, Colella knew that the insurance lawyer would attempt to damage the General Contractor’s credibility and record-keeping so badly that she would leave no room for the witness to refute his client’s records that proved the amount that he had worked.

How did Colella know that this would happen?  He’s battled insurance company lawyers for years and knows that rather than approach the witness with understanding that perhaps as a small business owner he is a poor record keeper, she reverted to her default, the witness was lying and that his client was lying.  Had she been more understanding, perhaps the General Contractor would not have responded as willingly as he did to Colella’s final “zinger” but he anticipated that the insurance company lawyer could not resist going after the witness.  Because she did, Colella was able to conclude the examination with some “Zing” and turn the General Contractor into a strong witness for not only his client but his client’s record keeping.

Vince Colella is a personal injury trial attorney with Moss & Colella in Southfield, Michigan.  He is acknowledged to be among the Nation’s Top One Percent of lawyers and has been named a Super Lawyer among his many awards.  Colella handles personal injury cases (www.lawyerswhowin.com) and civil rights injury cases, e.g., employment discrimination, police brutality, etc. (www.detroitcivilrights.com).

Witnesses Refused To Be Cross Examined By Neil Rockind, Author Of Killer Cross Examinatiom

Read the story here… 

http://www.rockindlaw.com/witnesses-refused-to-testify-and-be-cross-examined-by-neil-rockind/

Dynamic Cross Examination Of A “Victim”

During direct examination, he cried, stuttered and had difficulty getting his words out.  He appeared truly traumatized.   Undeniably, the young man on the stand had been injured and injured badly.  He was making a compelling case while testifying and he was sympathetic as well.  What kind of cross examination would be effective?  A dynamic cross examination in which I was actually and truly in the moment and by “in the moment”,  I mean the actual moment listening to what the witness said and reacting in real time.  “Dynamic” means characterized by constant change, activity, or progress.  A cross examination of the victim in this case needed to be dynamic, i.e., live, organic, changing and reacting.   Ask those that witnessed my approach to him and they’ll agree that it was just that — dynamic.

Tell The Jury What You Want

Every lawyer has encountered the witness that adds on to his answers to his questions.  The add-on’s are potentially devastating and unexpected — usually declarations that only serve to assist the state or government.  Some lawyers will try to “control” the witness or shut the witness down.  That is one approach.  That was not my approach — I chose to handle things dynamically.  Here is an example:

Q: rules are in place for your safety and the safety of others, right?
A: yes. Like don’t cross 5 lanes of traffic without looking because you couldn’t wait 30 seconds nearly ending my life … (long emotional outpouring monologue)
Q: is there something that you want to tell the jury because that wasn’t an answer to my question? Go ahead tell them whatever you want…
A (diatribe about life, death, our client, etc)…
Q: anything else?
A: (more diatribe)…
Q:  is anything else that you want to say?
A:  no. I think I’m done.
Q: you’d agree that I’ve given you a chance to say whatever you want, right?
A: yes.
Q: and you’ve don’t that?
A: yes.
Q: now that I’ve don’t that, I want to return to my questions, do you understand?
A: yes.
Q: as I was saying, rules are in place to protect you and others?
A: yes.

Most lawyers would be sweating and panicking at the ad-libbing and would have wanted to shut it down.  I did the opposite.  In the moment, evaluating the situation, I accepted the victim’s energy and absorbed it.  I invited him to say what he wanted, unafraid of what he said it would say.  He was hurt, upset, offended, mad and wounded and he wanted to speak.  I believed that the jury would not appreciate me cutting him off.  I was always wary of wounded animals and treated him similarly:  I wanted him to expend his energy now.  And so he did.  No trial skills group or book would recommend this approach.  To the contrary, most would want me to take control.  I did the opposite.

The Setup: Rules

Some new lawyer groups and skills training groups claim that they have a new approach to trials: focus on the rules and how the opponent violated them.  This is not a new tact.  In fact, David Ball, a jury and trial consultant and author has advocated this for years: the rules.  Focus on the rules and how the other side broke them.  This was the setup for my cross examination and one of the reasons why I allowed him to vent early on–I knew what was coming.

I questioned him about the rules, eg, rules are in place for you safety, the safety of others, it is important to follow those rules and you follow the rules. He readily agreed.

The Post: The Medical Records

He was claiming that he wasn’t speeding and I wanted to undermine that testimony.   After he denied speeding, I planned on proving that his claim that he wasn’t speeding and that he follows the rules was untrue.  Everyone who follows me knows that I advocate “a post” on cross examination.  Find something fixed in the case and then tie the witness to it. The victim’s medical records was that post.

The records revealed that the victim broke hospital rules repeatedly, rules to protect him and others. He changed his own treatment, rejected treatments, disrespected the staff, smoked in the hospital, had sex in the hospital room and was partying in the room. I knew that he’d have to deny or agree with those notes.  Either way, I was good.

I began with a challenge: your testimony that you follow the rules was untrue, wasn’t it? He denied it.  He then, when confronted with the records, denied the truth of the records. He blamed the staff, accused them of lying and of fraud in record keeping.

In the moment, every time he added new allegations to his denials, I reminded him that I was going to test him on each.  Calmly, never raising my voice and slowly, I pulled every strand of his lies apart.  I reminded him that he was accusing staff of fraud and misconduct.  He was merciless in his allegations against them.  He was not believable.

One last thing that I did was, after I realized that he was fighting with me and being assertive and firm, I reminded him that he was responding differently to me than to the state: “you recognize that your demeanor is different with than it was with the state?” He was stuck: like a deer in the headlights.

These approaches and bits on cross examination were part of a dynamic cross examination.  Cross examining is challenging because you need to be in the moment, dynamic and quick.  You need to be able to think on your feet, use the resources available to you and quickly process the information in order to respond to the witness.

Eveyone in court, including the judge, understood that I had little or no defense in this case. However, I made a defense out of cross examination, a dynamic cross examination.