The Velvet Hammer -

We can't help it - us lawyers.  We have to go to school for so long - it's no wonder we stop talking and thinking like real people.  We say "prior" for before and "subsequent" for after.  We love words with lots of syllables.  Because this is what law school drilled into us. 

In trial, we distance ourselves when we fail to communicate on a real person level.  That's the beauty of having witnesses who are not experts.  The jury can understand them.

Sometimes jurors will discount testimony by a friend or family member.  They assume the person will say anything to help the plaintiff. 

It is different when a co-worker (n this case a supervisor) testifies.  A supervisor has the power to hire or fire you.  Even if they are friends they still have the j.o.b. of putting the company first when it comes to business.  Jurors generally view work related witnesses as being more objective than others.

In this case the supervisor is used to show:  1) plaintiff was a good worker and person; 2) the defendant was underhanded in ordering roofing supplies; and 3) if the company had known this wasn't a proper roofing job - they wouldn't have provided materials.

This is the transcript from the trial testimony.

direct of a supervisor.pdf

Give the speech.  Go for a run.  Have the spinal cord litigation group meeting.  Smile at the Phoenix Suns wheelchair basketball crew demo.  Go on our field trip.  Gawk at the brand spanking new disability center.  Apparently flirt (according to Cristina) with the very handsome fitness coordinator.  Barrio Queen for dinner with a lively group of 12.  Arrive back at the hotel at 9:30. 

But wait. 

It is New Lawyers Party night.  In case you're wondering.  This doesn't mean you have to be  a new lawyer to party. 

Am still wearing purplish skirt and lacy top from this morning.  Cristina is in black jeans.  We must change.  It is club night.  So Cristina puts on boots, shorts and a lace top. (Oh to be 22).  I toss on smaller black skirt and sparklish top.  Grab disco bag and off we go.

Arrive with only one wrong turn 15 minutes later to bumping club Axis.  Cristina starts laughing and says - it is a club.  Well, of course child.  Plaintiff laywers know how to throw a party.

Enter loud techno, packed joint.  She wants to scan the crowd first.  No way.  Drag her onto the floor and off we go.  The music is so loud we cannot hear each other talk.  We are laughing and dancing like we usually do when we go out to clubs together which is pretty much never.  Unless we are on cruise ships or at lawyer parties. 

The women behind me are wild and crash into me a couple times.  Cristina is texting and dancing and taking very bad pictures of me.  A nice looking man glides up to us and offers to take our picture.  Oh this place is very fun.  He stays chatting with us.  His father is a lawyer who practices in Guam.   He on the otherhand practices in New York.  Not sure how we hear that actually.  Because club is thumping.  Eventually I say - this is my daughter.  And you can see him about fall out.  Cristina is laughing.  He says goodbye.  What did I say, I wonder...

We dance and dance. Oblivious until Darin joins us.  We met him on the plane ride over.  He does something involving class actions.  Cristina shows him a picture of her uncle Carl.  Because he looks like uncle Carl.   He probably can't hear what she's saying.  I don't know why we are trying to talk at all in there.  In fact, I pretty much rupture Cristina's ear drum trying to holler something to her.

Here is the movie clip:  http://youtu.be/tqDWK99HXkw

I could stay til the very end.  But the daughter is tuckered out.  So we leave, make it back without a wrong turn.  And realize as we open the door to our hotel room.  That our ears are still ringing.

We wrestle while smiling.  Or not.  Through phone calls.  Email.  Across the deposition table.  Am on high alert.  Trial is supposed to start in one week.  He wants to stall it.   

Finish the deposition.  While waiting for the plane send this email.

From: Karen Koehler
Sent: Monday, January 30, 2012 2:46 PM

We are still waiting the filing of whatever motion Nick is bringing tomorrow. We have extended the courtesy of not requiring a motion to shorten time. We expect it to be filed immediately.

karen

Plane lands.  Look at email.  And see red.  Adrenaline boils within me.  Narrow eyes.  Jaw clenches.  Breathe.

From: Nick’s Paralegal
Sent: Monday, January 30, 2012 2:52 PM

Karen,

The motion and declaration were sent to ABC in Portland for filing earlier this afternoon.  Attached is Ms. D’s email to all counsel with copies of the motion and supporting declaration, sent at 2:35 p.m.  Please confirm receipt.

Paralegal

Here is what Nick's sworn declaration says:

Last week, I asked the parties to take up trial readiness and the need for a continuance in a telephonic court hearing so we could advise the Court and determine, before spending more time and effort on trial preparation, whether the trial will proceed as scheduled on February 6. To date Plaintiff’s counsel has not agreed to a telephonic hearing.

From: Karen Koehler
Sent: Monday, January 30, 2012 3:05 PM

I RESENT the fact that your motion claims plaintiff has not agreed to tomorrow’s hearing.  I RESENT it in particular because I told Nick that I would not require a motion for order shortening time.  All I wanted was a written motion to the court sometime before tomorrow.   I RESENT that I extended professional courtesy, let you skip a step, agreed to tomorrow, and that you filed a declaration that impugns my character under the circumstances.  I expect this inaccuracy to be retracted.

karen

From: Nick

Sent: Monday, January 30, 2012 5:12 PM

Karen,

I just got back to Seattle, and am going through my emails, and came upon yours, below.    With all  respect, you are mistaken.   What I said in my declaration is  accurate:   you would not agree to a “telephonic hearing.”  So…see you tomorrow.

Nick

From: Karen Koehler

Sent: Monday, January 30, 2012 6:26 PM

Nick – you are better than this.  Your intent is to mislead the court.  I allowed you to call a hearing with no formal written notice with briefing by you less than one court day before.  I told you in the presence of all parties today that you were welcome to appear telephonically we would appear in person.    You have no need to cast me in a negative light to the court.  The fact that you are choosing to do so reflects poorly back on you.

Unless you apologize, do not ask me for another favor.

Karen

From: Nick
Sent: Monday, January 30, 2012 7:02 PM

Karen,

It appears we have had a miscommunication.  See you tomorrow.

Nick

Really.  A miscommunication.  No.  Don't think so.

An hour before we have the hearing, the bailiff contacts us.  Our trial is being bumped by a rape trial.  Criminal trumps civil.  All of the rushing, working terrible hours, scheduling of experts from around the country.  All of it stops.

Our trial is moved to June. 

If you are walking in a marked crosswalk with a pedestrian light on.  With friends.  And a guy in a Honda is talking on his cel and decides to turn left.  And mows you down.  The car strikes you.  You land on top of the hood and then fall down and strike the pavement.   And you are taken by ambulance to the hospital.  And end up bruised and hurting all over.  Then you my dear friend need to see Dr. Sean Ghidella.  Because according to him - you will be healed and back to normal within three months.  Boom.  Just like that.

That's what he testifies to today in a binding insurance arbitration proceeding.  Under oath.

Now there is an exception.  If you have a pre-existing susceptibility to injury the three month rule won't always apply.  But never fear.  It is highly doubtful you are alive if you suffer from the kind of pre-existing condition that Dr. G is talking about.

In this case, the 34 year old woman had scoliosis which is an abnormal curvature of the spine.  Some of us develop or are born with it.  We can be a bit out of whack because of it.  She also was having some spine discomfort due to a situation at work in the months leading up to being hit.  But was any of that a pre-condition that could have made it harder for her to heal.  No way.

Dr. G says - if you were on top of a building and fell eight (8) stories and had orthopedic injuries and survived - that would be a preexisting condition.

So the good news is the woman did not fall eight (8) stories before being hit by the car.  She should have healed in three months.

You know what a defense attorney does with that kind of testimony.  Um hum.  Attacks the woman's credibility.  All of her injuries (after the magic three months) are due to something else. 

Moral of the story:  if you are hit by a car and haven't fallen eight (8) stories before hand, then go see Dr. G.  He will heal you in three months.  Boom.  Just like that. 

Postscript:  The Arbitrator - Scott Holte - did not have quite as much faith in Dr. G as the defense.  In ruling for the plaintiff here is in part - what he said:  I do not find Dr. Ghidella's report and testimony on the causation issue is persuasive.  Specifically I don't find that Dr. Ghidella's opinions have a sufficient factual foundation...

.

The lawyer is incensed.

Has come up to the podium to speak to me following a CLE presentation to the WSBA (state bar association). 

I can't believe any defense lawyer would ever let you show a PPT like that in court!  He is practically gasping for breath.  So angry.

What's the big deal.  What's so awful about showing as well as telling.  Well, he doesn't like the "Where's the beef" slide.  When popped little granny up on the screen, simply smiled at the jury.  Then they mouthed the famous words for me.

How! Dare! You!  He stomps off.

Actually wish more defense attorneys would emerge from the stone age.  Give technology a try. It would make trial more interesting for everyone involved. 

This is the closing argument from a basic motor vehicle collision case I tried on a week's notice.  Imbedded the PPT slides into the transcript so you can get a feel for how it flowed.   

Perezclosingstatement.pdf