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 ( and civil rights injury cases, e.g., employment discrimination, police brutality, etc. (