Tag Archive for: neil rockind

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).

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.

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.

Attorney Comments On Neil Rockind’s Cross Examination Of A Police Officer In Trial – Calls It “Classic”

UPDATE: the trial at issue resulted in an acquittal for our client:  he was acquitted of all charges, including Aggravated Assault and Assault and Battery.   Here are pictures of the complainant so that the reader can appreciate what we were up against:

Thompson Photo 3 Thompson Photo 2 thompson photo 1

In a hotly contested Aggravated Assault trial presently underway, veteran trial attorney Michael Hohauser has been intently observing the proceedings.  As trial started, Hohauser watched each step Neil Rockind took in the case.  Rockind is defending the accused and it will be Hohauser’s job to defend the same gentleman in a civil case that has been filed in which the complainant is seeking monetary damages.  Hohauser watched Rockind’s opening statement and his cross examinations of the three (3) witnesses to date:  the complainant, the complainant’s wife and the arresting officer.  During each and at times, the judge interfered sustaining some objections raised by the prosecutor and one time raising an objection sua sponte.  As Hohauser said, “you handled the judge perfectly.” Rockind never raised his voice to the judge and never let on how one-sided the judge appeared to be.   Rockind remained calm and continued undaunted.  After watching Rockind use the killer cross examination approach to examining the officer, a cross examination that will be shared here in full when the case is over, Hohauser had this to say about what he saw:

Yes I was Neil. It was classic. You brought it in perfectly. I was so busy watching you and the officer I didn’t notice if the jury was alert.

The cross examination was so compelling and the observer so drawn in, that his attention was focused on nothing else.  That is the best compliment that a trial attorney could receive from another trial attorney.

Neil Rockind (242)

Textbook Cross Of The Interrogating Detective | Several Lawyers Have Called This Cross “Brilliant” And Insisted On Publication

Sometimes, a cross examination of a witness flows so smoothly, is so powerful and so totally destroys the witness’s testimony that even the opposing side is left in awe.  Most lawyers never accomplish such a cross examination.  Some of the top lawyers, experience this feat several times.  The best of the best know this feeling well — this is the high bar that they set for themselves.  In a drug case that Rockind Law is still litigating, the prosecution called a witness to the stand to testify to our client’s supposedly incriminating and contradictory statements made during a police interrogation.   My cross examination was so compelling that one of the prosecutors when it was over, pulled me aside and paid me a compliment.  That same prosecutor same something similar in our last hearing.  When I said, “you weren’t smirking during that cross examination”, he responded and said, “No, I most certainly was not.”   My co-counsel in the case ordered the transcript and have repeatedly referred to it as a “masterpiece”, “masterful”, “best ever”, “textbook” and the “cross that young lawyers should have to read.”   I can’t tell you whether it was worth that amount of praise, but I remember it and I have to say, as an aficionado of cross examination, I appreciated my own work  on this one.

Take a look.  Take a read.  Let me know what you think.   Click on the Cross Examination Transcript to read the entire cross for yourself.

Rockind Textbook X Photo

Rockind Textbook X

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.

An Excerpt Of A Cross Examination Of A Witness Cooperating With The Prosecution

The cooperating witness has many names:  cooperator, informer, snitch, turncoat, benedict arnold, betrayer, etc.  Many lawyers are afraid to confront the cooperating witness.  A killer cross examination is necessary to undermine the reliability of the witness and at the same time, undermine the prosecution’s case.

A young lady referred to two local judges in a very derogatory fashion.  I had a tape recording of a conversation in which she had made this reference — it was a reference that was unlikely to be uttered or heard in the middle of a drunk driving case, but it turns out that it was one of the elements of a killer cross examination that helped obtain an acquittal for our client.  The case, one of the hardest that I have tried, involved the “switching seats” defense:  the claim that our client (the passenger) switched seats with the driver during the traffic stop in an effort to throw off the police.  The two were cousins.  Our client claimed to have switched seats.  When she was charged and prosecuted, she expected her cousin to come forward and tell the truth and free our client.  It did not go down that way.  Unfortunately, her cousin abandoned her.  Worse, her cousin turned on her and actually attempted to testify that she was only the passenger and that our client was indeed the driver.  The cousin was “cooperating with the prosecution.”  A killer cross examination was needed.  I delivered one.

This excerpt is a small part of the cross examination of the informant/cooperating witness in this case.  I will reveal more excerpts over the succeeding days and weeks.  Of course, you’re wondering how the derogatory reference became a part of a drunk driving trial?  Well … The witness and our client had talked on the phone about the case.  The phone call was tape recorded.  At one point, the pair discussed their judges (the cousin had an MIP).  The cousin stated that “they both sound like whores.”   A killer cross examination involves the use of wit and positioning of witnesses and so we positioned the witness to use this offensive quote.  I questioned her about respecting others and the Court.  She stated that she respected everyone, especially the Court.

Do you think that  referring to a judge as a “whore” is a sign of respect?

Read on for this and more of my cross examination of a cooperating witness in this case.

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