Tag Archive for: personal injury

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.

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).

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.

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.