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Cornering The Witness In A Deposition | Vince Colella Delivers A Killer Cross

imageWhile we criminal defense lawyers seem to have reason to conduct the most cross examinations, once in a while one of our brothers and sisters in the personal injury/civil litigation field conduct a meaningful cross examination that warrants mention.  I’ve seen my longtime peer Geoffrey Fieger do it.  Gerry Spence too.  Both have cross examined witnesses in civil cases where corporations and insurance companies were on trial.  Recently, one of my closest colleagues/friends/warriors, Vince Colella in Southfield, Michigan, conducted a cross examination in a deposition that caught my eye.  Vince is of counsel to our firm and we used to share space together (not to mention the multiple cases that we have worked on together) so it comes as so no surprise that Vince hit one of out of the park.

Here is the exchange that caught our eye:

Vince: [Mr. Adjuster} do you have a philosophy on adjusting claims?

Adjuster: Yes, to be fair.  And, error on the side of providing coverage.

V: So, you give the benefit of the doubt to the claimant?

A: Yes.

V: Do you like baseball?

A: Yes.  In fact, I have been an umpire for 5 years.

V: So, then you are familiar with the phrase “tie goes to the runner.”

A: Yes.

V: What does that mean to you?

A: That if the base runner touches the bag at the same time the fielder catches the ball while touching the bag, the runner is safe.

V: Great.  So, in this case, you were provided with a medical opinion from my client’s treating physician.  And, you obtained one from a doctor you hired and paid for, Correct?

A: Correct.

V: You had conflicting medical opinions. Right?

A: Right.

V: Yet, you chose to accept the opinion of the doctor you hired, and paid for, over my client’s doctor? Am I correct? Well, that’s not consistent with your claims handling philosophy is it sir?

A: Um, well, I guess not.  But, ……(blahblahblah)

In this exchange, Vince revisited a common, easily understood phrase to get the adjuster to admit that where there is a doubt, the insured, driver should win.  Then when the adjuster agreed, Vince pounced to point out how the adjuster wasn’t applying the very rule he adopted a few moments earlier.  A killer cross examination.

You’re Holding My Pen: Proving A Point During A Cross Examination

The Phone

It was quite a sight.  The seasoned police detective had been on the witness stand for awhile.  He had testified on direct examination and been cross examined for a while by several lawyers.  The “the pen” happened.   “The pen” is one of those moments that makes the courtroom stand still and it did here as well.  Want to know what happened?  I bet … read on.

One of the state’s arguments was that text messages on a phone found in my client’s pocket were sent and received by him.  Mind you that none of the texts mentioned his name, initials, nickname nor bore any identifying information that they were sent by him.   There was no identifying information that the phone even belonged to my client other than the fact that it was in his pocket.  The state didn’t know if he had picked it up with plans to use it, picked it up and put it in his pocket or if it was his and he had lent to another.  It had no evidence that the phone belonged to him and that the texts were sent by and received by him.

Nevertheless, the state and detective fought to tie those texts to my client.  It’s principle argument was that the phone was in my client’s possession and thus … it must be his and … thus the texts must be his.  “The pen” did a lot to disprove

The Pen

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As I was cross examining the detective, he was fiddling with a pen.  I smiled and asked him about the pen.  It went something like this …

Q:  you’re holding a pen?

A:  yes.

Q:  where did you get it?

A:  it was up here on the stand.

Q:  you just picked it up?

A:  yes, I guess so.

Q:  are you aware that is my pen?

A:  no.

Q: So the fact that you’re holding it, tells us nothing about whose pen it is?

A:  I guess not.

Holding my pen, “the pen”, the detective had proven our point about the phone.  The fact that someone holds or possesses an object tells you very little about who owns it and who was using it previously.  The fact that a phone was found on my client at one moment in time tells us little about whose phone it is and who used it to text.

How did this develop?  Active listening and paying attention in the moment.  I have long advocated that lawyers should while cross examining should avoid being overly wed to a notepad or a list of questions.  Being fixed to a set of questions prevents the lawyer from watching, listening and reacting to what is actually happening with the witness.   As I was cross examining the detective, I observed him holding my pen.  At that moment, in real time, I realized what opportunities were available if I put the right questions to him.  And so … I did.

The pen.  The real time cross examination.  The points made.  A killer cross examination.

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

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

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

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

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

The Driver

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

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

As bad as that sounds, it only gets worse:

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

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

The House Was Dark

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

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

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

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

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

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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.

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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 —

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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.