Tag Archive for: best

Transferring The Witness’s Testimony To Your Client, Victor Balta, Esq Of Moss & Colella

As I promised, we would share more than just cross examination excerpts from my (Neil Rockind’s) cases.  Where another lawyer thought that he/she had some interesting cross examination, I would welcome their submission and comment on it.  Victor Balta, a personal injury associate attorney with Moss & Colella, PC, a personal injury and police brutality oriented firm in Southfield, Michigan, has done just that.

In a recent case invoking a slip and fall, one of the most decimated and difficult areas to practicing in given the Court’s hostility towards injured citizens, Balta used the witness’s testimony he was cross examining in order to attempt to establish that his client did have reason to look down at the sidewalk, the typical so-call, Open and Obvious defense.  Courts have been suggesting that you should look at your feet while walking instead of looking ahead — you may walk into traffic or others doing the latter (head down eyes to the ground) but the Court apparently thinks this is safer way to walk.  Most of the free world disagrees.

In this excerpt, Balta cross examined the opponent’s witness on this absurdity and then transferred that witness’ testimony to his own client — a cleaver and effective way to get the opponent to support your client’s position.  Here is the excerpt:

 Q. Is it fair to say that during the date of the
  incident, that you walked on the sidewalk a couple
  times?

A.   More than a couple, yes.

 Q.   Did you ever notice anything on the sidewalk that led
  you to believe that you needed to be careful or avoid
        certain spots of the sidewalk?

A.   No.

Q.   In your own personal opinion, are there any defective
 spots in the sidewalk that my client missed or should
 have avoided?

 [Defense attorney]:  Objection, form and
  foundation.

A.   No.

BY [Plaintiff attorney]:
  Q.   No, there’s no spots that [client] should have avoided,
 just to be clear?

A.   Correct.

From here, by taking the witness’ experience, Balta was able to tie it right to his client helping in establishing that the Open and Obvious is going to fail..  The opponent didn’t see anything and neither should have nor would have seen anything.  It was undetectable defect that caused Balta’s client serious injury.

What’s the lesson?  When conducting a killer cross examination, you don’t have to rely solely on our own witnesses in building your case.  Testimony from the opponent that supports your position or undermines the opponents.  Balta did just that here.  Well, Victor Balta, well done.

Victor Balta is an attorney with Moss & Colella, a personal injury and police brutality law firm in Southfield, Michigan.   Moss & Colella is to many fine lawyers including Super Lawyers Vince Colella and David Moss.  They can be reached at 248.945.0100 or at www.mosscolella.com or www.lawyerswhowin.com or www.detroitcivilrights.com   If you want to contact Balta directly about this post or others contact him at vbalta@mosscolella.com and www.lawyerswhowin.com.

Catching A Snitch (Jailhouse Informant) In A Lie

Jailjouse informants.  Every criminal defense lawyer in a major case in which his/her client is in custody in jail fears one of these low-lifes coming out of the woodwork.  These informants seek favor from the police and government by offering testimony against someone with a case pending.  They are sketchy, unreliable and unfortunately, dangerous witnesses.  Too often, juries rest guilty verdicts on these witnesses.  Too often lawyers do a poor job of cross examining these informants.  In the case of Mark Lundy, charged with murdering his wife and daughter, a jailhouse informant materialized out of thin air.   The witness claimed that Lundy said he would’ve got away with what he’d done, if his daughter hadn’t walked in and seen what he was doing to his wife.

The witness also claimed that Lundy told him he’d been planning what he did for some time, and “she had it coming to her”.  One part of Lundy’s lawyer’s cross examination of the informant caught our attention at KillerCrossExamination.com.

The informant testified that he met Lundy while they were in the segregation wing of a prison, in 2002.  He’s told the court he got chatting to Lundy while in the prison yard.  According to the informant, Lundy told him that he was waiting for an appeal to go through, but didn’t explain it.

Lundy’s lawyer seized on some information that he obtained from an investigation into the informant’s background, e.g., a probation report that referred to the informant as “manipulative” and aggressive when doesn’t get his own way.  The witness could hardly deny what was in the report.  And then, using the “manipulative” reference, the lawyer went to work on a glaring hole in the witness’s story:  that Lundy said he was on appeal while in the yard.  Why?  Lundy was not on appeal.  

Lundy’s lawyer, using a bit of killer cross examination, pulled some jail records and noted that the informant and Lundy were jailed together before his first trial and thus before any appeal.

“He wouldn’t have been waiting for an appeal because he hadn’t even been convicted,” he says.

Witness X replied, “he told me he was waiting for an appeal”.

Lundy’s lawyer then used the probation report to impeach the witness:

“Are you being manipulative again,” pressed Burns.

“No,” Witness X replied.

Meticulous attention to detail and a thorough investigation into the informant’s background is required in order to pull off a killer cross examination.  Some lawyers think that we just stide up to the podium or lectern in a courtroom and outwit the witness “off the cuff”.  They are wrong.  Conducting a killer cross examination requires skill, talent and wit, that is of course true, but it also requires something additional:  preparation.  Lundy’s lawyer likely neutralized this witness by obtaining information about the witness’ past, constructing a timeline and then reviewing that timeline against the facts.

Neil Rockind is a criminal defense lawyer with Rockind Law, a criminal defense trial firm in Southfield, Michigan.  Rockind has won virtually every award and accolade available to lawyers, including, Top Lawyer, Super Lawyer, Top 100, Top 50, Top 10, Leading Lawyer, Legals Finest and a Leader in the Law.  The Detroit Legal News referred to Rockind as “Tenacious”.  Laws.com characterized Rockind as someone who fights for the underdog.  Rockind is the Channel 4-WDIV (NBC) local television analyst/expert.  Rockind handles drug, alcohol related, white collar and assault type cases in and around the state of Michigan and in federal court.  He is the author of killercrossexamination.com. 

Straight Answers — The Line That Helped A Great Personal Injury Lawyer Depose A Tough Doctor

“Are you going to give me straight answers?”  A rather simple question, right?   Opposing experts in civil and criminal cases often do anything but give straight answers.  Long, twisted, curvy and evasive answers are what experts typically give to lawyers cross examining them.  How to tackle the problem?  A colleague of mine, Vince Colella of Moss & Colella,  LawyersWhoWin.com and DetroitCivilRights.com, is one of the finest personal injury lawyers in Michigan.  He is so dedicated and talented, that he has been named a Super Lawyer, a prestigious honor bestowed on only the top 5% of all lawyers in Michigan.  Recently, Vince Colella approached me to discuss a trial deposition that he was preparing for involving a particularly feisty and difficult doctor.   The doctor was being called as an expert witness by the opposing side, the insurance company.  After a few minutes of discussion, I suggested starting the deposition with a simple question — one that would catch the expert off guard and unprepared:

Are you going to give me straight answers?

You see, depositions typically begin the same way:  lawyers asking background questions, questions about the expert’s experience, work, etc.  It provides the lawyer with information but it also gives the expert a chance to get in a groove, warm up and get comfortable.  Vince elected to take a different approach.  He elected, a few questions into the deposition, to pop the question:

Are you going to give me straight answers?

The goal being to confront the expert with that stark question.  We prepared for the expert’s possible responses.  If he hemmed and hawed, Vince could challenge him right then after all, why wouldn’t he agree to just give straight answers?  Vince even planned to write it out on a sheet paper, once the expert agreed.   Whenever the expert started to go sideways, he would ask the question again using the prior commitment:

I thought you were you going to give me straight answers?

He might even use the sheet of paper.  After a while, we figured, the expert would see Vince reaching for the sheet of paper and know that he was about to get whacked.  He left to put it into action.

After the deposition, Vince returned to the office and reported back how successful this simple tactic was.  Vince asked the expert the question, “Are you going to give me straight answers?” early in the deposition, earlier than expected, and the doctor responded:  “I’ll try.”   Vince told me that he smiled at hearing that — “why would one have to try to give straight answers,” he said he thought.   But he soldiered on and periodically, the expert would attempt to offer some rubbery answer to which, Vince asked:

I thought you were going to try to give me straight answers?

After only a few incidents of having to remind the expert about his commitment to try and give straight answers, Vince relayed that the expert was controllable and manageable and that the deposition not only didn’t hurt Vince’s case but actually helped.

Sometimes doing the unorthodox or unconventional makes all the difference in the world.  This time Vince delivered a killer cross examination with one question:

Are you going to give me straight answers?

About Vince Colella

Vince Colella is a personal injury, civil rights attorney and plaintiff’s attorney representing individuals who have been injured in automobile accidents, personal injury cases and/or who have been sexually harassed or discriminated against at work.  Colella has been named a Super Lawyer in the area of plaintiff’s personal injury cases and has garnered millions of dollars in awards for clients and their families over the years.   To find out more about him, visit www.LawyersWhoWin.com.

About Rockind Law

Rockind Law is a Southfield, Michigan-based criminal defense law firm aggressively pursuing justice for individuals facing criminal charges, including white collar crime, drunk driving, narcotics and assault. To find out more about the firm’s services and resources, visit http://www.rockindlaw.com/.

About Neil Rockind

Neil Rockind is a criminal defense lawyer with offices in Southfield, Michigan.  Rockind has been named a Super Lawyer, among the Top 100 Lawyers in Michigan, among the Top 50 Lawyers in Michigan, among the Top 10 Criminal Defense Lawyers in Michigan, among the Top 100 DUI Attorneys in the United States, the Best of Detroit by Hour Magazine, a Top Criminal Defense Lawyer by Dbusiness Magazine and among the Top 100 Trial Lawyers by the National Trial Lawyers Association.  He has lectured and taught trial tactics and strategies to other lawyers and is frequent guest in the media discussing legal issues and current events.  Rockind is also the WDIV Legal Expert.

 

The Case Of The Illegible Handwriting – A Killer Cross Examination That Resurrected An Under Advisement Sentence For A Client

Read the story and excerpts about how we saved a young man from a probation violation and got a judge to give him an under advisement plea, i.e., MCL 333.7411, after she had originally denied it.  A killer cross examination saved the day.  Here’s the story:

A young man who chose to handle his case without our assistance found himself placed on probation by a local district court judge.  He left the court, went to a clerk’s window and then left the building with plans to appear for a probation meeting the following Monday.  He showed on Monday, met with a probation officer for the first time and was asked a single question that would require him to appear again in court for a probation violation hearing:  “how did you get to the courthouse today?”  When he answered, “I drove,” the probation officer advised him that he was prohibited from driving and that his license was suspended.  The young man was stunned.  He left and contacted our office.  We ordered the transcript from the sentencing hearing and obtained copies of the “Sentence Order.”  Here is a copy of the pertinent part of the “Sentence Order” — the probation officer claimed that the handwriting at the bottom of the form, writing that had never been explained to the young man, put him on notice about his license being suspended:

 

Miller Sentence Order

Our defense at the hearing was that he did not know that his license was suspended and that his license was not suspended.  After reviewing the transcript and line number 37, we even decided to argue that his application for MCL 333.7411, the under advisement statute, had not been denied as the Court maintained.

The witness, the probation officer, attempted to tow the proverbial party line as much as is possible.  She proved to be a resistant, difficult witness that tried to repeatedly argue with me and use the judge as a backdrop or safety valve.  At one point, she attempted to claim that our client had received a copy of the Order of Probation and Sentence Order together.  She would not concede this simple point that Sentence Order was not attached to the Order of Probation even though the Order of Probation referenced a “Sentence Order Attached.”  Worse, she attempted to rely on “practice and procedure” rather than actual facts.  On this one issue, whether the order was attached to the Order of Probation, here is a sample of how I dealt with her difficulty:

miller sentence order cross

Miller Sentence order cross 2

In order to challenge the claim that he knowingly violated his probation, I needed to undermine the claim that he had been told of the condition prohibiting driving and then I needed to challenge the claim that the handwriting put him on notice.

I began a challenge that would poke and point out how illegible handwriting on the Order actually was.  

Miller 7411

This was the order that contained the handwriting that I was challenging.  Here was was my first challenge:

miller question mark crsos

 

My attack on the legibility of the handwriting on the Order continued with a discussion about the words next to community service hours.  Here is the Order:

miller fines handwriting order

 

It looked like “zoo” to me so I didn’t shy away from cross examining on what appeared to be written in that space.  Here is the cross:

Miller fines cross

Miller fines cross 2

The Order contained some words that were illegible regarding drugs.  It said “no drugs” and than what looked a couple of scribbles and the word “rumor”.  Here is the Order:

Miller No Drugs Order

 

 

I cross examined on the illegibility of the handwriting and started laying the foundation for how the probation officer was relaying on the her familiarity with the judge’s handwriting, something that our client did not have.  Take a read:

 

Miller No Drugs Cross

Miller no drugs cross 2

 My cross examination was leading up to the primary issue, the language on the bottom of the order but I could not resist a shot at the Order and what it said about MCL 333.7411.  Did the Order say that MCL 333.7411 was “okayed” or “denied”.  Here was the Order:

Miller deny 7411

I cross examined the probation officer on the what the word was next to the “/”, was it “okay” or a “deny?”   You’ll see that the judge tried to interject and “testify” and accused me of testifying to which I responded, “this is cross examination”:

Miller 7411 deny cross

Miller 7411 cross 2

Having made a challenge to the legibility of the language on the Sentence Order, I proceeded to the language that was at the heart of the allegation of a violation of probation, i.e., the language that supposedly indicated that the accused’s license was suspended.  What was written here?  The first word looked like “Liz” … Here is the Order:
Miller Sentence Order

My cross on the handwriting follows:

miller license susp cross

Miller license susp cross 2

I then closed in … I questioned about a review of the transcript to discover 1) what was actually said to the client and 2) what was on the Sentencing Order since the handwriting was to put it generously, ambiguous:

Miller license susp cross 4

 

Of course, the probation officer had not reviewed the transcript.  Had she reviewed it, she would have learned that the judge never mentioned license sanctions on the record.   But, she tried to stick with the handwriting on the “Sentence Order”, i.e., she walked right into our trap.  Read on:

Miller license susp cross 5

 

Or course it was clear to her, she works in the probation department, is familiar with the terminology and the judge’s handwriting.  The accused was not:

Miller license susp cross 6

Miller license susp cross 3

In the end, the transcript did not provide the probation officer with support and the sentencing order proved to be unreliable in terms of notice.  While perhaps the probation officer was aware of what the judge wrote or meant because she had seen 100’s of these orders and knew the judge’s handwriting, our client had not.  He was a novice.  A killer cross examination exposed his lack of notice and awareness that his license was suspended and ultimately ended up persuading the judge to give him what she claimed she had originally denied him, MCL 333.7411.

Using Real Time “In The Moment” And Common Sense – Critical Elements Of A Killer Cross Examination

Neil Rockind, author of killercrossexamination.com, shares tips and real world examples of cross examinations to help lawyers develop a Killer Cross Examination | Using Real Time

Many trial teachers and instructors teach students to be “in the moment” yet having watched many of the lawyers who were educated in this fashion ply their trade, I am convinced that too few actually practice what they learned or preached.  Many lawyers think that being in the moment means being emotionally in touch with the witness or their own feelings, etc.  I view it differently.  In a killer cross examination, “being in the moment” is actually being in a conversation with someone and actually reacting to the information that the other person is saying and the manner in which they sharing it.   Rather than referring to it as “being in the moment,” I prefer to think of it as using “real time” and encourage lawyers to react in real time.  This is critically important in a killer cross examination:  react to things being said and done in real time.  Think about it as if there was little opportunity to think — imagine yourself in a tennis match in which your opponent hits a shot cross court.  You are going to “react” in real time to the cross court volley, chase down the ball, size up where your opponent is on the court and attempt to hit a winner.  In some circumstances, continuing with the tennis analogy, you make not even have time, in real time, to try and do anything other than just chase the ball down and attempt to hit it.  One thing I know, however, is that if your opponent hits the ball to your right, you’re going to move left — if he hits a drop shot, you’re going to run towards the net, not back up behind the baseline.  “Real Time” reactions.

A recent cross examination that I conducted in a contested DUI/OWI-Accident case is a prime example of a real time reaction to a witness’ testimony.  In this case, our client was accused of operating or driving while intoxicated.  An accident was reported involving a red Jeep.   We believed that the officer’s stop of the vehicle and detention of the driver was unlawful.  Our principle argument rested on the fact that the officer that made the stop did not identify or even attempt to identify the most significant detail given to him by dispatch:  the involved vehicle should have heavy damage.  It was my position that the police should have done whatever was minimally intrusive to our client’s constitutional rights and that he must, before approaching and communicating with our client, look at the vehicle to see whether it matches that given by dispatch:  a vehicle with heavy damage that was in an accident.  Let’s take a look:

In this passage, you’ll see that I set the officer up with my premise, i.e., that he should take the least intrusive means when making a traffic stop.  By taking the least intrusive means, the accused’s constitutional rights are least impacted.  I pose this to him in a way that is hard for him to deny:

Hroba - Real Time 1

After getting him to agree that the least intrusive means test, I walk the officer down the path, taking small steps — first asking him to agree that the least intrusive means would be to identify a car, matching color, matching make and matching “heavy damage.”

Now I move in for kill, i.e., that the officer did not attempt to take the least intrusive means, because he failed to identify whether the vehicle that he was stopping had “heavy damage.”  However, as you’ll see the officer attempts to give me a hard time.

 

Hroba Real Time 4

Here is how he tries to give me a hard time by saying that he “was behind the vehicle,” an answer to a question that I never asked.  In the moment, in real time, I pursue it — reacting to not getting the answer to my questions:

hroba real time 6

As you can see, he was persistent — he was trying to dodge the issue but I was not letting go.  I was listening and reacting in “real time” to what he was saying:  him citing to my suggestion as “unreasonable” was too calculating and argumentative.  Just like I would with someone in my family who was trying to ” bs” me, I reacted in real time to what the witness said.  Him claiming that it was unreasonable suggested to me that he had thought about doing as I suggested but deciding against it — accordingly, I questioned about just that:

hroba real time 7

 

Rather than going away, crawling into a hole or feeling like the witness was getting away from the point that we were making, in real time I considered the answer, the implications of it and questioned him:   he was offering a justification for not having done something and by doing so he was necessarily implying that he  had thought about it but decided against it.  I ask him, “you’re giving a justification … which suggests that you thought about it but just didn’t do it…?”  I was listening, thinking and responding.   My opponent had hit a volley and I was chasing it down and then going to return it for a winner.   I didn’t stand there stuck on some note page with pre-printed questions.  I was live, in real time and reacting.  This is part of a killer cross examination. 

Of course, the witness cannot concede that point for fear of looking stupid.  He knows it too.   So when I ask him the question, he is stuck with having to agree and … he did:

Hroba Real Time x 9

Trapped with a real time, in time confrontation, i.e., challenging his assertion with logic and reason, he returns to the point that we were trying to make with this line of cross examination and concedes the point:

Hroba Real Time x 10

 

This is just one example of a killer cross examination: one that controls the witness but one that is dynamic where the questioner responds in real time to comments and testimony offered by the witness.  The witness was trying undermine our arguments and help the government’s case.  He knew he was trapped when I questioned him about the least intrusive means and with questions that inspecting whether the vehicle had damage was “least intrusive.”  He knew he was cornered and rather than concede that point, he tried to argue with me:  “that would not be reasonable,” he responded.  Yet, were he to have made that judgment on the road, that would necessarily mean that he had thought about it and decided not to check whether the car had damage.  I questioned him about that inference and he knew that in the process of trying to wiggle out, my grip had become tighter.

Killer cross examination is a fluid, dynamic, in time, real time style of cross examination that involves preparation, knowledge, wit and reason.   It is my style of cross examination.   Maybe you can add some elements of this type to your cross examinations as well.  Good luck.