Effective Cross-Examination: An Aggressive Defense Pays Off

Many jurors still have a Perry Mason like expectation of a trial. They expect a cross-examination of a witness that will expose, confront and break the witness. While this sometimes can happen, most cross-examinations of witnesses are more mundane. One of the risks of cross-examination is that the witness weathers the attack by the opposing attorney. In so doing, the witness is given a golden opportunity to explain their story once again and ends up looking stronger in the eyes of a jury because they took the “blows” and didn’t break. Another danger of cross-examination is that the attorney comes on too strong and invokes sympathy for the “badgered” witness in the eyes of the jury.

Great trial attorneys know how to strike the right balance on cross-examination. They are prepared for cross-examination because they find the buried and hidden material that will discredit a witness, impeach their credibility and expose their lies to a jury. This kind of relentless questioning is hard to accomplish and the cross-examiner must be able to lead the witness into an unsuspecting trap and then pounce on the witness all the while keeping the jurors’ attention.

This month we highlight Ernest J. Bernabei lll who obtained a defense verdict in a contentious attorney negligence case in Camden County Superior Court through effective cross-examination.

View Ernest J. Bernabei lll’s bio

Jury Deliberated Unanimous Defense Verdict

Court: Camden County Superior Court
Judge: Sherri Schweitzer
Case Type: Professional Malpractice

Caption: Frank Dippolito v Charles Nugent, Esq.
Index No.: CAM-L-4605-14
Verdict Date: November 14, 2019

After three and half weeks of trial, Ernest Bernabei obtained a defense verdict in a contentious attorney negligence case in Camden County Superior Court. The case involved sales of properties using powers of attorney and Plaintiff’s claim that the insured had acted improperly to deprive him of the proceeds or the properties. The insured acted properly in relying upon the directions of valid attorney-in-fact, plaintiff’s longtime girlfriend, and at all times complied with the standard of care.

The plaintiff was a career criminal who used various POAs when he was in prison or on the run. He owned many distressed properties that were managed and, at times sold pursuant to POAs. The key at trial was the 4 ½ hour cross of the plaintiff over 2 days in which Mr. Bernabei was able to establish a long list of lies and misrepresentations as to all the main issues in the cases. He also established that the plaintiff was guilty of tax fraud, bankruptcy fraud, and perjury.

Mr. Bernabei used plaintiff’s testimony at a federal criminal sentencing hearing as well as about 1100 pages of deposition testimony to impeach the witness. Cross of plaintiff’s expert was also lengthy and very effective. The expert became combative and was repeatedly cautioned by the judge when he refused to give a clear answer to cross-exam questions. The defense expert, as well as the insured, presented very well.

Mr. Bernabei also presented the live testimony of plaintiff’s long time former girlfriend who undercut and contradicted most of the key points of plaintiff’s claims. In closing, the lies and inconsistencies were outlined in detail. The message to the jury was that plaintiff was not entitled to a verdict when he had blatantly lied to the jury and violated their trust. The jury returned a unanimous verdict in favor of the insured.