Michigan Criminal Defense Lawyer Blog
It has been a while since I have addressed why I never call witnesses at a hearing in a driver’s license restoration or clearance hearing. Within the very week that this article was written, I had 7 license restoration and clearance hearings at the Michigan Secretary of State Administrative Hearing Office (AHS, and formerly known as the DAAD) in Livonia. As I arrived at the building over those several days and waited with my clients for our hearing times to approach, I saw a number of lawyers (not those I see there with any regularity) march down the hall from the various hearing rooms and open the lobby door to fetch witnesses. Every time I see that, I cringe because calling witnesses, in my opinion, is a completely avoidable (and amateur) mistake.
I am reminded of just how true this is almost weekly. It simply goes with the territory that because of the sheer number of license appeals that I do (I had 31 license appeal hearings in the first 3 months of 2015), plenty of my “new” clients are people who tried and lost a license appeal before (either on their own, or with some lawyer who claims to “do” license restoration cases). As they present me with their documents, including the order denying any prior appeals, I read how witnesses were essentially “chewed up” by the hearing officer, and can just imagine how things played out as everyone sat in the same room and watched that year’s appeal go down in flames, right before their very eyes. For everything I can (and will) say on this topic, it comes down to 1 very simple reality: A witness is a liability, and any value he or she brings can be captured and presented in a letter.
Conventional wisdom for litigators (lawyers, like me, who spend the bulk of their time in court and legal hearings) warns to never ask a question to which you don’t already know the answer. This isn’t just some cutesy saying, either. I suppose that if you translated this into medical advice, it would be like a warning to a surgeon to never make an incision unless he or she is familiar with exactly what body parts and organs lie below. The problem is that in every license appeal hearing, once the lawyer has finished asking questions, the hearing officer will follow up with his or her own questions, and this is literally an open invitation to disaster…
If witness X is called to testify that Dan the driver has not consumed alcohol for the last 3 years, or, in the case of an interlock violation, did not consume alcohol on a certain day, what part of that cannot be put in a letter? That’s it; the point has been made. However, if witness X is brought in to testify, the hearing officer can start inquiring about other things: When was the last time you saw Dan consume any alcohol? A few years ago, huh? Well, how many years ago was that? About 6 or 7 you say? Hmmmph. Well, before you were called in here, Dan testified that it has been a bit over 3 years since he quit drinking. And you say you know him well and see him often, eh?
It goes downhill from there. And the more important point is that it can never go uphill from anything that a person can put in a letter. Being there in person does not make any statement better. This is something I hear about from other lawyers who read my blog and admit that they never really thought about it this way. Sure, from a lawyer’s point of view, it requires less up front work to tell the client to bring a witness to the hearing rather than read the person’s letter and help him or her properly edit it. And to be clear, while I put a lot of time and effort into correcting and editing letters, there is no point at which I ever want to have someone say (or write) something that is untrue. Part and parcel of my whole approach to license appeals, and the primary reason I guarantee that I will win any case I take, is that I only represent people who have honestly quit drinking and are truly sober. If someone was to tell me he or she could get letters that say whatever I need or want, then that person would be a million miles from the kind of genuine sobriety I require to take a case in the first place. It is critically important to me, and to our chances of success, that my client be able to sit in the hearing room and look the hearing officer in the eyes and both parties know that what’s being said is true.
That said, a true statement in a letter “I am Dan’s wife and he has not had anything to drink for over 3 years” carries the exact same weight as it would if said in a hearing. The difference is that the letter doesn’t get nervous, doesn’t get confused, and won’t make mistakes when being grilled because you can’t ask a letter any questions! This is such a simple point, yet so often overlooked, that it boggles my mind.
You can search this blog for driver’s license restoration articles going back to 2009, when I began putting them up, and you will see that I have been consistent in my “no witnesses” approach all along. When you couple the sheer volume of my driver’s license restoration experience with my win guarantee, you have to conclude that there’s something to it. Unlike some of my other articles, where even a topical examination of a particular subject can result in several installments, this subject is straightforward and simple: Never call witnesses. While there is always an exception, in the last 500 or so license appeal cases I have handled, I have called witnesses in no more than 2. To be honest, it might have only been in 1 case, but I am certain that it happened in no more than 2, and those were exceptional cases in every sense of the word.
Beyond everything else, the whole idea of calling witnesses (or not) can be a litmus test by which to help you find a lawyer. I am not saying that every case with a witness is doomed, but I am saying that virtually every case in which a witness is called is one that is taking on unnecessary risk. Obviously, if I needed to find a lawyer for a license appeal, I would quickly rule out any that were not keenly aware that calling witnesses is almost always a mistake. Whatever else, it’s a mistake I won’t make, and it’s all backed by a guarantee.