Tag Archive for: michigan

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

Fun Friday | Two Excerpts From A Masterpiece Cross Examination Of A Seasoned Cop

In a racketeering and criminal enterprise case involving four (4) top lawyers, it fell upon me to cross examine the cop that was the centerpiece of the state’s case.  I knew that was my purpose in being in the case and I made sure that I rose to the occasion.  The clients and lawyers were counting on me and I was going to deliver.  This is an Excerpt from the Cross of Gray, my cross examination that assisted in obtaining a dismissal in a high profile racketeering case.

In this segment of Killer Cross Examination, you should notice two (2) things:  my calling out the witness’ physical reaction to questioning and his ultimate reaction when he was cornered and realized that I had trapped him.  These are keys for developing a killer cross examination.

First, witnesses testify with more than just their words — they physically react.  Prosecutor’s call out when a witness uses his hands to show a distance or an angle but there is more to be put on the record than angles, etc.  One can do what I did and that is — call out the witness’ physical reaction to testifying.

In the Cross of Gray, the penetrating nature of the cross examination caused the witness to tremble.  We all saw it and I wanted the record to reflect it.  So … I made sure that it did:

Bill Gray Trembling

Notice how I literally called him on his physical reaction.  He was trembling from the pressure that the questions placed on him and I wanted the record to bear that out.  This is important and too many lawyers don’t do this.  Instead, they’d remember it but never record it.

Additionally, sometimes you trap a witness to such a degree that they utter something that leaves a lasting impression — an admission if you will that they’re done, cooked, etc.  When a seasoned cop utters the word “shit” at finding himself in a trap, you know that he’s cooked.   This happened in this excerpt of the Cross of Gray:

Bill Gray  - Oh Shit

The witness was cornered.  He had literally been trapped in a corner where I had pointed out that his conduct was “a wink” to our client to continue to operate his business and that, contrary to his testimony, he didn’t want to bust him.  When he realized he was cornered, he admitted it and then uttered the unthinkable

….. shit.

Killer cross examination is effective and fun (particularly when you make them tremble and swear on the witness stand.)

Enjoy the Dream Cruise.

Neil Rockind

Establishing Bias Of An Informant With Active Listening – In The Moment

I’ve always preached that you have to be “in the moment” when cross examining a witness.  While its okay to have notes and an outline, you must listen to the witness in real time and react to what he/she says.  In a recent case in which I cross examined an informant, the witness let slip a single word, “we” during my cross examination of him.  This single word revealed just how biased he was.  More importantly, I caught it because I was listening and I used it as a dagger against him and the state:

Establishing Bias - Informant

Notice how he uttered the word “we” while trying to explain something:

… they have a protocol just like we did

I heard it and I pounced:

Q: When you say “we”, you’re referring to the police department?

A: Yes.

Q: The people you were working with?

A: Yes.

Q: You’re (sic) partners in this case?

A: Yes.

With the utterance of a single word, “we”, I got the witness to admit that he and the police were partners.  Partners!

This was only possible because I was listening to the testimony and reacting in real time.  This is killer cross examination.

Punch Them In The Face | Right Back At ‘Em Cross Examination Of An Expert

 

IMG_2449

He had just finished testifying for the prosecutor, offering an opinion that a certain amount of marijuana was being possessed for sale and delivery purposes rather than for personal consumption.  His reasoning was circular:

It was the quantity.  The amount.  Mostly the amount.  What about it? Well, the amount…

He continued to repeat that as though repeating it made more true.  When it was my turn to cross examine, I wanted to go right back at ’em with a “Punch Them In The Face” killer cross examination.  And that is just what I did …

Before he even settled in for my cross examination, I started in about “the magic number.”  He seemed startled and caught off guard

Good, I thought.  This isn’t going to be some namby-pamby cross examination.  This is a killer cross examination.

My questions about “magic number” were direct and a verbal

Punch in the face

Rockind - Magic Number Cross

Notice how I wasted little time in going after him and his incessant reliance on “quantity.”  A Killer Cross Examination can feel like death by a thousand cuts with a slow, methodical destruction and dismantling of the witness or it can be an immediate haymaker, i.e., a punch in the face.

 

A Look At Attorney James “Jim” Amberg’s Cross Examination Of An Informant

IMG_0244-0.jpg

There’s a popular saying about how there are different ways to do something.  For example,

there’s more than 1 way to skin a cat.

In essence this sayings means that there are different ways to express the same sentiment or thought:

different people have different ways to doing the same thing and both ways may be quite effective as well.

While I have developed a style of cross examination that I refer to as “Killer Cross Examination” that is based on my style, personality and approach, there are other extremely effective lawyers that cross examine a different way.  Some are extremely effective and have the results to prove it.   In other words, my approach is not the only way to “skin the proverbial cat.”   And like an artist who can appreciate the artistry of another painter’s work, I too can appreciate the beauty and craftsmanship in another lawyer’s cross examination style.   Today, we take a brief look at my friend, James “Jim” Amberg’s style of cross examination by examining his cross examination of an informant, Marcus Harvey, in a drug/RICO trial.

About Jim Amberg

A bit about our subject, Jim Amberg, before we examine his cross examination style for while the words appear on the page, they gain more impact if you can picture the actual live examination.  To do that, we have to describe Jim a bit.

First, Jim is nothing if not energetic, passionate and excited.  Literally.   Jim is a bright light — from the moment you meet him until he leaves, he is full of energy.  Not angry energy mind you … but energy that is infectious and captivating .   I wouldn’t want Jim’s voice and energy to be the first thing I see and hear in the morning upon waking after a long night of drinking with little sleep but it is just the sort of energy that I’d want in someone who was leading me into battle or leading me my team onto the football field.  Jim’s demeanor and energy can get you fired up.

Second, Jim is funny.  He makes no apologies for his sarcasm but when he is sarcastic, he is so with a smile on his face rather than a sneer.  He almost appears to be enjoying his own humor.

Last, Jim is fearless.  I’ve seen him in court and he relishes the fight.

The Case – The Informant-Witness

With that as the backdrop, Jim was defending a young man who was accused of participating in a local gang that wrecked havoc in Detroit, Michigan.  This gang regularly participated in drug deals, handgun acquisitions, robberies and murder.  Each of the young men involved were accused of killing people at various times of their young lives.  One young man in particular was arrested and accused of participating in the gang organization.   He faced a sentence that would have likely resulted in his incarceration for life.  However, the young man decided to cooperate with the federal authorities and talk on others.  Despite several meeting with agents, he never once mentioned Amberg’s client.  Looking for an even more favorable deal, the witness mentioned Amberg’s client in a late, late debriefing.  Amberg sought to exploit the following on cross examination:

  • The witness’ own culpability;
  • The witness’ plea and sentence deal that would spare him a life sentence;
  • The witness’ involvement relative Amberg’s clients, i.e., that the witness was more involved yet was cooperating with the government against his relatively uninvolved client;
  • The witness’ omissions in earlier interviews;
  • The witness’ failure to mention his client immediately;
  • Contradictions between the witness’ story and the DEA reports; and,
  • The overall character of the informant.

Amberg did an excellent job demonstrating how incredible the informant-cooperating witness was when he cross examined him recently.  Here are excerpts:

Challenging The Witness’s Claims – Tying Him To A Post

I like to call this practice tethering the witness to a statement or “tying him to a post.”  The lawyer is in possession of a statement that the witness made elsewhere and has the ability to prove that the witness made the statement.  The witness is effectively tethered to it, i.e., admit it or deny at your own peril and be cross examined about it.  You tie him to the post.

If the witness denies the statement, he is impeached with 1) the fact that he is refuting his own words and 2) ultimately by the testimony of the person that took or heard the statement.  Here is an example of Amberg did that here:

Amberg - Cross Sample Page 1

Notice how Amberg actually uses “memory” and “denials” to emphasize the witness’ denial about that statements, eg, you don’t remember saying or you didn’t say, etc.  He is reminding the jurors that the witness’ claim is not believable.

Something else he does is pit the witness against the government agents or police officers.  By asking the witness questions like, “So, if Agent [so and so] put that in his report, he must have been wrong?”, he is directly forcing the witness to choose between contradicting himself or contradicting the agent.  When the witness indicated that the agent must’ve been wrong, the witness lost much credibility.  This is well done.

Here, Amberg discusses omissions with the witness.  Pointing out what a witness said is important but so is pointing out what a witness omits.  Here, despite sitting down to discuss others involved in crime as a part of a cooperation agreement, the witness never mentions Amberg’s client.  Amberg points this out by discussing the absence.

Here is another example of tethering the witness to a statement.

Amberg - Cross Sample 3

Amberg tied the witness or tethered the witness to another post — this time a tape recorded interview between the witness and the police.   When the witness acknowledges the interview, Amberg moves in for the kill to point out what the witness did and did not talk about.   As you can see, this is not the first time the witness has ducked what he told agents in those interview sessions.  First, he denies making certain statements in an interview, then testifies that the agent must’ve been wrong and now the witness is disputing a tape recording.  With each answer, Amberg is stretching the witness past the point of believability.

Humor To Finish Him Off

I am a firm believer in using humor where one can to make a point.  A laughing jury is not a hanging jury, an old saying goes.  Amberg is from the same school.

The witness has testified that money given to him was not for marijuana or pot.  He has testified to picnics, parties and barbecues however.  Amberg combines the two and the use of the word “pot” to point out the absurdity in the witness’ testimony and to convey what he thinks of it:

Amberg - Sample Cross 9

Did you see it?

so it might not have been pot money, it might have been potluck money

Amberg is finishing him off with humor.  The refusal of the witness to concede that the collected money by a group dealing drugs was for drugs/pot is silly.  There was no reason for the witness to deny this claim other than his desire to avoid admitting to more crime or his feeling that Amberg had made him look and sound untruthful.  Rather than admit it, he chose to sound even more untruthful.

Amberg gave him just enough rope for the witness to figuratively hang himself.  This too was well done.

The lesson in Amberg’s cross examination is simple:  use your own personality to challenge and cross examine witnesses.  Amberg does this well.  He uses wit, humor and smarts to force the witness to be his own worst enemy.   Amberg literally gave this witness a chance to tell the truth, i.e., “I needed more people to throw under the bus and so I picked on your client” and when the witness didn’t admit that, Amberg forced him to admit everything but …

Neil Rockind, Rockind Law
Criminal Defense Lawyer

Patience, My Friend – How Being Patient, Actively Listening And Cornering A Witness Reveals A Lie

Be patient, son.

How many times have I heard that phrase in my life?  How many times have I said that to others?  Many.  Likely too many to recall and too many to count.  Yes, patience is a virtue but I’m not a patient person.  However, a killer cross examination requires patience and more — it requires active listening in real time and then doggedly pursuing every attempt a witness may take to evade the question.  Some key points of this discussion:

  • be patient;
  • keep moving forward toward your goal;
  • knock down down attempts to pass like a tennis player approaching the net;
  • be relentless; and,
  • eventually, you’ll cut off the witness, leaving him nowhere to go but to answer the question.

In a killer cross examination, if you follow the above rules, what happens during the cross examination is remarkable — while ultimately getting to the goal of the cross examination, the examiner will also expose the witness as an evasive and argumentative witness.  This is a killer cross examination.

Take a look at this recent cross examination in which I cross examined a detective that took interrogated our client and made some exaggerated claims to our client during the interrogation, claims that were designed to convince our client to confess.

First, the detective told our client during an interrogation that he had researched the topic of x-rays and the procedures involved.  This was a lie that I wanted to expose:

Sommers  Cross - Blog 1

The detective equivocated so I forged ahead, patient but relentless:

sommers - Cross Blog 2

Notice how he starts to backtrack and stammer.  His claim that he had researched x-ray procedures and talked to professionals quickly becomes something informal and imprecise.  Notice how the detective tries to answer the question about “naming” the professionals with something else, i.e., information about procedures and processes that he thinks will hurt my client.

I was patient.  I continued moving forward asking him about his official investigation.  He must’ve realized that he was in trouble and now he’s backtracking, flailing his arms and equivocating.  Notice how I don’t bite — “its either a part of your investigation or not?”:

Sommers Blog - Cross 3

Not only was I proving that he had lied to our client but do to his answers, he was proving himself to be untruthful.  Quite honestly, he’d have been better saying, “I lied to your client” rather than this smorgasbord of answers.  The killer cross examination exposes this evasiveness — focusing on each effort at being evasive as we march towards our original goal.

In the interrogation of our client, he claimed that he had talked to “x ray people” but a moment ago, he said it was only a “person” so I pursued that difference:

Sommers- Cross Blog 4

Notice how unbelievable his answers are:  people vs person, lack of memory of the month, lack of memory of the day and nothing notated in his reports.  I intended to damage his credibility but this damage is self-inflicted.  Of course, when a witness is willing inflict more damage on himself, I’m going to let them.

I start to tie his non-answers and contradictions together to make the point:

sommers - Cross Blog 5

Notice how he continues to backtrack.  He tries to deny it was research but is trapped with his own words.  Caught, he dives into the answer head first — like a guy jumping on a grenade:  “I was satisfied with it.”  So I reminded him of the original topic, his lie about “research”:

Sommers - Cross Blog 6

I could’ve let it end there but his self-serving explanation that he’s trying to be forthright can’t stand.  Its obvious that he’s not but I wanted to underscore the point.  I keep turning up the heat, exposing the evasiveness and using his evasive answers against him:

sommers Cross Blog 7

As you can see, my patient and persistence was paying off.  He has characterized his “research” as a nearly happenstance encounter with someone in the hallway.  I take his answers and tie them to what he did and did not tell our client.  Notice that where in the beginning, I had a point to make about “research” he has now given us more than just a lie about “research” but a series of contradictory, nonsensical, evasive answers.

In the end, notice how on one topic, whether he actually lied to our client about doing “research” in to x-ray positions, he refused to concede that he in fact lied or overstated that fact.  It would have been a bit painful for him but the cross would’ve exposed that one point and only that one point but he would’ve gotten credit or scored some points for being “honest” and admitting his shortcoming.  Rather than doing that, he tried to evade and argue — kind of like someone trying to thrust and parry while falling down in a losing match.

As you can see, I was determined, persistent and patient in getting to my objective on cross examination.  Along the way, I capitalized on his evasiveness and combativeness.  By following these techniques and samples, you too can conduct a killer cross examination of a critical witness — just be patient.

DUI Cross: The ABC Test Is Ridiculous

For years, police officers have used the “ABC’s” or alphabet test as a means of drunk driving or intoxicated driving detection. Cops can be heard doing the following: 

Say the alphabet from A to T or say but don’t sing the alphabet. 

There is no science behind this test as a means of detecting drunk driving.  None at all.  It is unscientific and subjective: the rules change with each giving is the test.  Despite these shortcomings, some lawyers don’t know how to cross examine a police officer that still uses this test. 

Here is my killer cross examination of a police officer using this subjective test.  Pay attention to how I did the following:

  • Set up the lack of science;
  • Setup the test as subjective meaning that there are no guidelines for how to score it; and,
  • Tie that to the case. 

Here is how I did it recently:     

     
  
  

 Notice how I got the officer to concede that it was not scientific and that it was subjective and then proceeded to ask him how our client did on this “subjective” test.  By the time I concluded this section of the cross examination, I had proven that

  • The officer used an unscientific test;
  • Knew it was subjective and unscientific; and,
  • Despite the unfairness of it, our client did the test well. 

In other words, we undermined the field sobriety investigation and created doubt that our client was jntoxicated. 

Stay tuned for more examples of killer cross examinations on www.killercrossexamination.com.

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.

ap-ufc-157-mixed-martial-arts-e1423492606179

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.

“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.  

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.