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Did you get a letter from Marshall, Dennehey, Warner, Coleman, Goggin? June 24, 2012

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Did you get a letter from Marshall, Dennehey, Warner, Coleman, Goggin about an insurance claim?

Chances are, they are looking to conduct an examination under oath, otherwise known as an EUO.  They work for insurance companies and business model of some insurance companies is to take in money and avoid paying any out.  Of course, this is the basic business model for all insurance companies.  However, some charge higher premiums and with those come easier and higher payouts.  Like anything else, there is a big market for cheap insurance.  After all, who is paying for those constant insurance commercials you see on TV?  You are!  Insurance companies do everything they can to keep the money flowing one way:  in.

So, if you have a claim and the insurance company doesn’t want to pay out on it, they will higher a lawyer.  Marshall, Dennehey, Warner, Coleman, Goggin is just one of many law firms representing insurance companies.  We have dealt with them in many case and have had a lot of success in working with clients to guide them through the EUO.  However, I am sure that there have been many people who went in and without a lawyer and were denied.  This can lead to a disaster since you will then be on the hook for to fix the damage to a house, replace a car, etc.

By hiring a lawyer to represent you, the entire tone of the case will likely change right away.  This is the case with just about every legal matter.  Since you know nothing about the law or the system, you essentially get punished for not having a lawyer.  Hiring an experienced insurance claims / insurance fraud lawyer puts you on equal footing with the insurance company.  Your attorney handling the EUO will also make sure that you comply with the policy 100%.  Most people don’t realize that the insurance policy is set up so that it is completely one sided: against you!

Hiring an attorney for an examination under oath can also help you avoid insurance fraud charges.  If an insurance company feels that you have committed fraud, they will often refer the case to law enforcement.  Clearly, if fraud is committed, the insurance company does not have to pay out anything on the claim.  Thus, they have a strong interest in putting a fraud case together to deny coverage completely.

Regardless of your circumstances, if you have been contacted by Marshall, Dennehey, Warner, Coleman, Goggin or any other lawyers requesting an examination under oath, call us right away at 732-773-2768.  Anything you do (or fail to do) or say can be used against you and result in a denial of the claim.

 

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Bergen County DYFS Lawyers help client fight back against false charges June 16, 2012

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Bergen County DYFS Lawyer

The firm is pleased to announce another great victory in Bergen County Family Court. Our client, A.C. Was charged with abuse and neglect after asking a therapist for help with regard to domestic violence issues. Although she felt that she was a victim, the therapist thought that she was harming the children by talking to them about the domestic violence.

Our team of tough, smart Bergen County DYFS Lawyers took the case to trial. The Court disagreed with DYFS and found in favor of our client. Although our client had been through hell, it was nice that she was vindicated in the end.

If you want a team of DYFS lawyers that will actually fight for you in Bergen County, call us anytime.

Bergen County DYFS Lawyers

Interview by ABCNews.com regarding Unemployment Fraud July 13, 2010

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As a follow up to my last interview, I was also interviewed by ABCNews.com

You can read that interview here

http://abcnews.go.com/Business/underemployed-overpaid-states-shell-unemployment/story?id=11118137

Interview re Unemployment Fraud by Star Ledger/AP Reporter July 8, 2010

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I recently had the pleasure of being interviewed by Newark-Star Ledger (New Jersey) reporter Leslie Kwoh.  Because Leslie/the Star Ledger is also affiliated with the Associated Press, the article was picked up by a number of news outlets included MSN, 7online.com, the Boston Herald, the Philly.com, Bloomberg Businesweek, CNBC.com, Forbes.com, the Daily Record and a number of other news papers and news websites.  You can read the interview at this link http://www.nj.com/news/index.ssf/2010/07/nj_unemployment_insurance_fund.html

and you can read all of Leslie’s articles at http://connect.nj.com/user/lkwoh/index.html

Major Victory in Medicaid Kickback Case October 21, 2009

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While this case is not over yet, today was a major victory for me as the case would have been shut down forever if I lost this appeal.  Instead, I won it hands down.  Now, it looks like we will have to gear up for a trial in the Spring of next year.

 

 

 

 

SUPERIOR COURT OF NEW JERSEY

APPELLATE DIVISION

DOCKET NO. A-2453-08T4

STATE OF NEW JERSEY,

Plaintiff-Appellant,

v.

EDWARD ACQUAYE,

Defendant-Respondent.

________________________________________

Argued October 5, 2009 

Before Judges Rodríguez and Yannotti.

On appeal from an interlocutory order of the

Superior Court of New Jersey, Law Division,

Middlesex County, Indictment No. 06-01-

00143.

Lisa Sarnoff Gochman, Deputy Attorney

General, argued the cause for appellant

(Anne Milgram, Attorney General, attorney;

Alvina Seto, Deputy Attorney General, of

counsel and on the brief).

Jef Henninger, argued the cause for

respondent (Mr. Henninger, on the brief).

PER CURIAM

We granted leave to the State to appeal from the

interlocutory order granting defendant Edward Acquaye’s petition

October 21, 2009

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A-2453-08T4

 

 

 

 

for post-conviction relief (PCR), vacating defendant’s

conviction based on a guilty plea. We affirm.

These are the salient facts. In June 2006, defendant

pleaded guilty to third degree Medicaid fraud, N.J.S.A. 30:4D-

17(c). This charge stemmed from defendant’s acceptance of

kickbacks from Michael Stavitski, the owner of Belmar Pharmacy,

in return for defendant steering the prescriptions of all the

residents of his residential healthcare facility, Lincoln Rest

Center in Jamesburg, to Belmar Pharmacy. These prescriptions

were paid by Medicaid pursuant to the New Jersey Medical

Assistance and Health Services Act, N.J.S.A. 30:4D-1 to -19.5.

In exchange, the State agreed to recommend a non-custodial term

conditioned on the payment of $1500 in restitution and a $1000

fine and to recommend “that defendant does not lose [his]

license to provide [nursing/rest home] care.”

At the plea hearing, defendant acknowledged reviewing and

understanding the plea form, which he signed and initialed at

every page. Before accepting the plea, the judge informed

defendant that the State’s promise to recommend that he be able

to retain his New Jersey State license to operate Lincoln Rest

Center was not guaranteed because the licensing authorities were

independent agencies and not bound by the State’s

recommendation. The judge said, “I don’t think anyone can

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guarantee or promise you[] that you’re not going to lose your

license. You understand that[,] right?” Defendant replied,

“Yes.” Defendant then gave an adequate factual basis for his

guilty plea. The judge accepted the plea. Instead of imposing

a probationary term, the judge suspended imposition of the

sentence for five years with the condition that defendant pay

$1500 in restitution and a $1000 fine.

Three weeks after this disposition, the United States

Department of Health and Human Services, Office of Inspector

General (OIG), advised defendant that, as a result of this

conviction, he would be excluded from participation in all

federally-funded healthcare programs for a period of five years

pursuant to 42 U.S.C. § 1320a-7(a). The letter informed

defendant that he had thirty days from the date of the letter to

“submit any information and supporting documentation [he]

want[ed] the OIG to consider before it [made] a final

determination regarding [his] exclusion.” A subsequent letter

informed defendant that he was excluded from participating in

any healthcare programming which receives federal funding.

Defendant was advised of his right to a hearing to appeal his

exclusion. Defendant did not request a hearing.

The OIG also notified the New Jersey Division of Medical

Assistance and Health Services (Division) of this exclusion.

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A-2453-08T4

 

 

 

 

The Division then notified defendant that, as a consequence of

OIG’s decision, he was excluded from participating in any

healthcare program receiving federal funding for five years.

Defendant and his wife, Freda Acquaye, a fifty percent owner and

Chief Operating Officer of Lincoln Rest Center, decided to

voluntarily close the facility and surrender its license.

Defendant filed this PCR petition, arguing that the State

and the court failed to inform him of his automatic exclusion

from participating in Medicaid programming and all federallyfunded

healthcare programs pursuant to 42 U.S.C. § 1320a-7(a).

Defendant asked the court to vacate his plea on the ground that

the plea was unknowing and involuntary as a result of the

State’s failure to inform him of the automatic exclusion.

The same judge who accepted the plea and sentenced

defendant heard oral arguments. The judge determined that there

was not a meeting of the minds between defendant and the State

regarding the terms of the plea agreement. The judge ruled

preliminarily that failure to inform defendant that he would not

be able to participate in federally-funded healthcare programs

would render defendant’s previous decision to enter the plea an

uninformed one. The judge gave the parties a September 19, 2008

deadline to resolve the matter or, in the alternative, to

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A-2453-08T4

 

 

 

 

proceed with an evidentiary hearing to determine what the

understanding was between the parties.

On October 16, 2008, the judge held an evidentiary hearing.

At this hearing, both defendant and the Deputy Attorney General

who appeared at the plea hearing testified. In a supplemental

brief, another Deputy Attorney General certified that the State

contacted OIG and spoke to Joanne Francis, an OIG

representative, to inquire if defendant had requested any

appeals or hearings after receiving the letter of exclusion.

Francis replied that defendant filed a response to the OIG

letter, but made no request for a hearing.

The judge granted defendant’s PCR petition, finding that

defendant’s guilty plea was not entered knowingly, voluntarily,

or intelligently because the State’s promise to recommend that

defendant not lose his New Jersey license to operate a rest home

implied, according to the judge, that defendant had a chance of

continuing to operate Lincoln Rest Center. However, because

defendant’s debarment from federally-funded healthcare programs

was a mandatory result of the guilty plea, continued operation

of the business was “practically impossible.” Finally, the

judge reasoned that “the mandatory nature of said debarment is

inconsistent with the [plea recommendation.]”

On appeal, the State contends:

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A-2453-08T4

 

 

 

 

THE TRIAL COURT ERRED IN FINDING THAT THE

STATE WAS REQUIRED TO INFORM DEFENDANT OF

THE COLLATERAL ISSUE OF HIS FEDERAL

EXCLUSION FROM PARTICIPATING IN FEDERALLY

FUNDED HEALTHCARE PROGRAMMING RENDERING HIS

PLEA INVOLVEMENT AND UNKNOWING.

In a supplemental letter brief, the State contends that:

THE TRIAL COURT ERRED IN GRANTING [PCR];

DEFENDANT’S GUILTY PLEA SHOULD STAND BECAUSE

HE RECEIVED EFFECTIVE ASSISTANCE OF COUNSEL

WHEN HIS ATTORNEY INFORMED HIM ABOUT THE

PENAL CONSEQUENCES OF HIS GUILTY PLEA AND

DEFENDANT WAS NOT MISINFORMED REGARDING ANY

PENAL CONSEQUENCE.

We disagree with the State’s arguments and affirm.

We begin our analysis with a restatement of governing

principles. A defendant seeking to withdraw a plea after

sentencing, pursuant to Rule 3:21-1, must show that he or she is

prejudiced by enforcement of the agreement, i.e., that knowledge

of the consequences would have made a difference in his or her

decision to plead. State v. Johnson, 182 N.J. 232, 241-42

(2005); State v. McQuaid, 147 N.J. 464, 495-96 (1997); State v.

Kiett, 121 N.J. 483, 490 (1990); State v. Howard, 110 N.J. 113,

123 (1988).

It is fundamental to the practice of plea bargaining that

the guilty plea must be made voluntarily, knowingly, and

intelligently. Id. at 122 (citing State v. Taylor, 80 N.J. 353,

362 (1979)). For that reason, in accepting a plea of guilty,

the trial court should question defendant under oath to

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determine that the plea is made with an understanding of “‘the

nature of the charge and the consequences of the plea.'” State

v. Kovack, 91 N.J. 476, 484 (1982) (quoting R. 3:9-2

awareness of penal consequences may result in the vacating of a

sentence imposed pursuant to a plea agreement. State v.

Johnson, supra, 182 N.J. at 236-37. “The right of the defendant

to be informed of the consequences of his plea, however, extends

only to those consequences that are ‘direct,’ or ‘penal,’ but

not to those that are ‘collateral.'” State v. Howard, supra,

110 N.J. at 122 (citing State v. Heitzman, 209 N.J. Super. 617,

622 (App. Div. 1986), aff’d o.b., 107 N.J. 603 (1987)).

However, these authorities apply to situations where the

defendant is not informed of a consequence.

A defendant also has the right not to be “misinformed . . .

as to a material element of a plea negotiation, which [he] has

relied thereon in entering his plea.” State v. Nichols, 71 N.J.

358, 361 (1976). Defendant’s “reasonable expectations,”

grounded in the terms of the plea agreement, must be fulfilled.

State v. Marzolf, 79 N.J. 167, 183 (1979) (citing State v.

Thomas, 61 N.J. 314, 322 (1972)). Thus, “misinformation about a

collateral consequence may vitiate a guilty plea if the

1). Lack of

 

 

 

 

1

was added, effective September 1, 2004.

8

The requirement that defendant’s plea colloquy be under oathA-2453-08T4

 

 

 

 

consequence is a material element of the plea.” State v.

Jamgochian, 363 N.J. Super. 220, 225 (App. Div. 2003) (citing

State v. Howard, supra, 110 N.J. at 122).

Therefore, in the context of defendant’s misinformation,

the distinction between direct or collateral consequences is not

significant. Rather, the focus is on defendant’s expectation

and the inaccurate information conveyed by the plea agreement.

For that reason, this case does not turn on whether defendant’s

exclusion from participating in federally-funded healthcare

programs is a penal or collateral consequence of the plea.

Clearly, such exclusion is a collateral consequence. See

Manocchio v. Kusserow, 961 F.2d 1539, 1543 (11th Cir. 1992)

(holding that debarment pursuant to 42 U.S.C. § 1302a-7 is

remedial in nature and not punitive).

Here, the judge found that the State’s failure to

accurately inform defendant that his subsequent exclusion from

participation in federally-funded healthcare programs rendered

the guilty plea unknowing and involuntary. We agree.

We emphasize that neither the State nor the trial court

were required to alert defendant to the federal exclusion prior

to the entry of his guilty plea. The primary responsibility to

determine this consequence was on defendant, who anticipated the

possibility of losing his ability to operate Lincoln Rest

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A-2453-08T4

 

 

 

 

Center. There would not be a reversal here if the State had

simply recommended a non-custodial sentence. However, the State

went further and promised to recommend that defendant’s license

to operate a rest home facility not be suspended. Clearly, the

State had no control over the New Jersey or federal licensing

bodies. But, by making the recommendation that it did, the

State conveyed erroneous information that federal exclusion was

not mandatory. The promise was illusory, and would never be

accepted by the licensing body. Moreover, the minsinformation

went to a consequence which was a material element of the plea

agreement from defendant’s perspective. Not losing the ability

to operate Lincoln Rest Center was defendant’s primary concern.

As stated above, the State’s recommendation had the capacity to

mislead defendant. The disclaimers at the plea hearing did not

resolve this misinformation.

Therefore, we agree with the judge that defendant’s plea

was not a knowing one. The order vacating the conviction is

affirmed and the matter is remanded for trial.

Affirmed.

Clients escape Medicaid Fraud charges in New York September 22, 2009

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Today was a great day as I worked out another great result for some really nice clients.  My clients, a husband and wife, applied for Medicaid in New York a few years ago.  Problem was, they indicated that they didn’t own any property when, in fact, they owned property in New Jersey. 

About a month or so ago, they received a letter from the New York City Human Resources Administration that indicated that they were the subjects of a Medicaid Fraud investigation.  As they already had the deed for the house, it didn’t look good on paper.  However, the clients had a good explanation but I knew that words wouldn’t cut it.

Even though my client’s owned the house on paper, their children were the defacto owners of the house as they lived there while the clients lived in New York.  The children paid for everything associated with the house and did not pay rent to the parents.  In order to make this go as easy as possible, I spent weeks working with the clients to get the documentation necessary to show that all of this was true.

I also spoke to the investigator ahead of time and worked much out with him.  As a result, when I showed up for the interview with the clients, everything went really smooth.  I was expecting the worse but it was great.  The investigators were happy that I had copies of all of the documents for them which they brought to their supervisor. 

Once criminal charges were off the table, we worked on a payment plan for the money that they owe since they were not eligible for Medicaid.  I worked out a 14 year, no-interest payment plan.  In addition, I shaved thousands off of the total amount that they owed.  In the settlement agreement, New York State agreed not to prosecute my client or take any other action against them.

It goes without saying that the clients were very, very happy.  If you are under investigation for Medicaid fraud in either New York or New Jersey, call me today.

You need an attorney that has a plan, not just a fancy ad September 12, 2009

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Really nice client hired me this week with plenty of time for me to work out a good result.  However, this could have went bad if she stuck with her former attorney that didn’t seem to have a plan.  The funny thing is, I really like the firm she hired and was a little surprised that she was unhappy with them.

She received a letter from the State about a year ago that indicated that she was under investigation for insurance fraud.  She hired this firm because they had a big fancy ad that advertised white collar crime.  She reported that the attorney made a few calls and sent out a letter.  After that, he said the case was over and it appears that nothing else was done. 

Well the State did not agree that the case was over.  They spent the next year investigating the case and a few weeks ago, they sent out a grand jury subpoena.  Needless to say, she was very upset that this was sent to her when she was told the case was over.  I asked her if attorney did this or that and she said no, just a few calls and a letter.

I can’t repeat myself enough.  Your attorney needs a plan.  Trial prep needs to start today.  Investigations need to start today.  Of course, all of this will depend on how much the client can afford but this client had the money to really lock people into statements and review her files.  Had that been done, the attorney would  have probably found out that this case is not over by far.

Luckily for her, there is still plenty of time to resolve this.  I have hit the ground running researching the issues, reviewing all of her files, etc.

Client waits to hire me and gets arrested as a result September 12, 2009

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I can’t repeat myself enough.  If you even think that you could be facing an investigation or arrest, call an attorney.  If your business partner has been arrested, call an attorney.  If your office, store, house, etc has been raided, call an attorney right  away!

My client, an owner of a car rental company had his NJ office raided a few weeks ago.  He lives in another state and he had a local attorney helping him out.  He waited a few weeks to call me.  Thankfully, he hired me right away instead of “thinking about it” or “talking  it over with his wife” “digesting it” o whatever phrase some people use to avoid hiring an attorney.  However, within hours he was arrested and now must spend several days in jail until he can be bailed out.

In his defense, he did call an attorney but not one in New Jersey.  His out of state attorney was in contact with the Detective but there was some miscommunication and the Detective felt as though he was being jerked around so he sent out the warrant and my client was picked up.  Had he called me a few days prior, I would have reached out to the Detective and worked out his surrender.  He would not have been in jail at all.

20 reasons to call a white collar criminal defense attorney July 28, 2009

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I see way too many people come into my office when it is already too late. The difference between prison and freedom, a criminal record and no record, unemployment and a great career may not only be what attorney you call, but when you call that attorney. To make it clear, I came up with a list of twenty scenarios where you should call a white collar criminal defense attorney right away. You may not need to hire the attorney, but you at least need to get advice on how to proceed and whether or not you have any exposure.  Even better, if you call early enough, you can often prevent any charges from being filed which will keep your legal fees low.

 1. Arrest

If you are arrested, you should call an attorney ASAP. The sooner you get a good attorney involved in your case, the greater the chance for a successful result.

2. Arrest of someone closely associated with you (family member, friend, co-worker)

If someone close to you has been arrested and there is a chance that their criminal activity is associated with you in any way, see an attorney right away.

3. Conviction

Many people choose the wrong attorney the first time around. It can’t hurt to call a good attorney to check your options now that you are convicted.

4. Call from police asking to make statement

You have the right to remain silent and anything you say will be used against you. Don’t think that you can explain it away. Call an attorney or risk a conviction as a result.

5. Knock on door from law enforcement

If law enforcement knocks on your door and makes a request, you should call an attorney right away before doing anything. Unless they have a warrant, they can always come back later.

6. Subpoena from law enforcement requesting records and/or testimony

Many white collar crime cases start with a subpoena. You may not have to turn over anything or you could limit what you turn over. Call an attorney for guidance.

7. Allegation from DYFS of any type of child abuse or neglect

While DYFS investigations and criminal prosecutions do not always go hand-in-hand, they quite often do. Thus, anything you say to DYFS could be used to convict you.

8. Investigation from Administrative agency regarding possible criminal conduct

You do not have the same rights in an administrative action as you do in a criminal court. Thus, you could open yourself to criminal prosecution if you make the wrong step. This could be in the form of a demand for inspection, a subpoena or a set of interrogatories.

9. Investigation from employer for possible criminal activity

You have no Miranda rights with your employer and private companies will prosecute you.

10. Discipline from employer for criminal activity

Now that you have been disciplined or terminated for possible criminal wrong-doing, you need someone to field any possible calls from law enforcement.

11. Civil suit complaint alleging possible criminal activity

Setting up a team of attorneys for the civil case that can make strategic use of discovery proceedings to set up the eventual criminal case can make all the difference.

12. Subpoena for deposition in civil case

A fishing expedition in a civil case could lock you into a statement that can be used down the road in a criminal case where you could be seriously regretting your own words.

13. Subpoena for testimony at grand jury

You are only one piece of the puzzle and thus, you may not know the goal of the grand jury. Your testimony could lead to an indictment of a friend, family member or even yourself.

14. Letter from insurance company regarding investigation

Insurance company investigations discover a majority of the insurance fraud that is criminally prosecuted in New Jersey. Again, you have no Miranda rights here.

15. Request from insurance company requesting an Examination Under Oath (EUO)

Same as above, however, this is a sure sign that you are suspected of insurance fraud. Having an attorney guide you through the process can be priceless.

16. Allegations of criminal activity in divorce case

A soon to be ex-spouse can be out for blood. Consulting with an attorney about possible criminal activity such as invasion of privacy can give you piece of mind.

17. Tevis claim as part of divorce complaint

Not just a mere allegation but a civil claim seeking damages. Criminal complaints can be used for leverage. Having a good criminal defense attorney to shut this down is key.

18. Identity theft or unknown items on credit report

Innocent people are arrested everyday because someone else stole their identity. You need an attorney that can clear up both your good name and credit.

19. Property seized by law enforcement

If your property is seized, there is a good chance you are not getting it back regardless of what the police say. Call an attorney right away to look into your options and criminal exposure.

20. IRS notice that there was a problem with your taxes

The IRS can be easy to deal with if they approached early and in the right way. After a while, they lose their patience and you find yourself indicted for any number of tax crimes.

Should you put your client on the stand? July 19, 2009

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I hear too many attorneys say that they will never put their client on the stand to testify.  As the old saying goes, never say never.  In this article, I will discuss the reasons why some attorneys have this fear, why you should consider putting the client on and then break down the analysis that you should undertake when making this crucial decision.

Why are some attorneys so afraid?

In my opinion, many attorneys have a defeatist attitude when it comes to trial.  This is probably due, in large part, to the attorney’s lack of confidence in their own skills.  Just watch some attorneys during trial when they go on and on about meaningless points that have nothing to do with the theme of the case.  Those attorneys clearly have no plan and thus, they probably fear just about every aspect of the trial as they have no control.

Think about it this way.  What are you more comfortable with:  something you are skilled at or something you have never done before?  Or how about something you are prepared for and something that you are surprised with?  If you have confidence in your trial skills and you are prepared, than you should be very comfortable during the trial. 

When you have comfort with your trial plan, you should be able to clearly analyze all strategic decisions that will come up during the trial including whether or not your client should testify.

Some attorneys are also afraid of a client’s  prior record.  Of course, if it is a mile long, then you will have some serious problems.  If it is one or two incidents, you should look into how you will deal with it especially if it is an old conviction.

Why should your client take the stand?

One of the primary reasons for putting your client on the stand is that the jury wants to hear from him.  I don’t care what the judge says about the right to remain silent.  The jury wants to hear from your client because they are thinking, if this was me, I would talk.  After all, what does he have to hide?

Another great reason is that the prosecutor will probably have little to no idea what your client will say.  Thus, it will be extremely difficult to cross examine on the fly as prosecutors are rarely great at cross.  If the prosecutor fails to call anyone to rebut a key point your client made, you have to tell the jury during summation that the prosecutor did not refute your client’s testimony. 

Your client also has an advantage that no other witness has.  He was there for all of the testimony.  Thus, his testimony can be “shaped” to respond to all other witnesses.  Of course, I do not advocate perjury, but creative use of adjectives is vital.

In some cases, especially white collar crime cases, your client may be the only person that can tie up the entire story.  Without him, you have no case.  Thus, taking the attitude that you should never put your client on the stand is just stupid thinking that can be malpractice in certain situations.

Should you put your client on the stand?

Everything you do at trial should have a purpose, and I do mean everything.  So, when deciding whether or not to put your client up there, you first have to answer the why question.  What is the purpose in having him testify?  Is it really necessary to the defense? 

Whether or not testimony will add anything to a defense depends largely on whether or not the jury has already hear your client’s version of the events.  While an exculpatory statement will rarely be presented to a jury, you may have a statement by your client that is not really harmful to the defense.  For example, if a self defense case, your client may detail the reasons that he stabbed the victim.  In that case, there may be little reason to subject your client to cross examination when there is little to  add.

On the other hand, if your client has not made a statement, the jury will probably need to hear your client’s version.  If your client made a damaging statement and you are still going to trial, your client must explain why he said what he said and what the real story is.

You also have to determine how your client will come across  to the jury.  Sometimes, this is a total crap shoot.  Quite often, your client will say something that comes out of nowhere or will act totally different than what you have seen in the past.  In other words, the way your client comes across in your office will be different than how he is when he is in the hot seat.  Thus, a margin of error has to be built into your analysis.

You must prepare your client so he knows the case and his testimony cold.  Only then will you really have a client for how your client will perform at trial.  In addition, its not just what you say but how you say it.  Thus, I try to stay away from a script and focus more on the general story with an extra focus on key topics.

Prepping your client for cross examination should be pretty easy to do.  Most prosecutors use the same lazy cross examination that consists mostly of yelling at the client.  You have to put on your prosecutor hat and look at every damaging piece of evidence or hole in the case.  Then, you have to discuss these issues with your client and get his side of the story.  Only then should you give further advice on how to handle those issues first talking in the general sense and then the specific sense. 

 Some of these issues can be dealt with on direct and the others should be left for cross.  If you deal with an issue on direct, the purpose is to take the “sting” out of it and explain it away.  However, you don’t want to make this obvious to the jury.  Try to work it into the story.  With everything else, wait for it.  Nothing takes the wind out of a prosecutor’s sails when they think they are about to land a knock out punch only to find out that they just stepped in it.

One such issue that should be dealt with on direct is a client’s prior record.  Again, I assume that it is not a mile long.  Most states limit how much the prosecutor can ask or else the prior record evidence becomes 404(b) evidence.  Thus, you should be able to keep the details vague.  But again, you should do everything you can to try to work this into the story.  Otherwise, it will be obvious that you are asking it for a reason. 

Due to the relationship you have with your client, it can be difficult to simulate a real cross examination experience if you also do the cross. Thus, get another attorney to do it for you.  Write out all of the questions for the attorney and have them lay it on thick.  Then, you can discuss the results with your client and make changes as necessary.

Once you complete this analysis, you will know why you are putting your client on, what they will say, how they will handle the Prosecutor’s cross and how they will come across in front of the jury.  When you are this prepared, you can then make an intelligent choice as to whether or not you should put your client on the stand.  Of course, I know this is the client’s decision, but let’s be honest, almost all of them will do whatever we tell them to do.