The Velvet Hammer

The Velvet Hammer

Stritmatter Kessler Whelan
200 2nd Ave West
Seattle WA 98119
206.448.1777 tel
206.728.2131 fax

Bump Bounce and Roll: Trying to start a trial.

Posted in About practicing law, Drop Dead Diva, The Good Wife

spaceneedle

On The Good Wife or Drop Dead Diva, the attorneys get the cases in the morning.  Try them in the afternoon.

In the real world the case is filed and then has to wait a year and a half for a trial date.

If it survives for that long, there is a fifty-fifty chance  the defense will ask the judge for (and get) a continuance.  Delay is a friend of the defense: Deny. Defend.  Delay.

So now the case has been waiting for a couple years.  The judge says – no more continuances.

As the trial date approaches, the office starts buzzing.  Call all witnesses.  Coordinate schedules.  Make sure everything will fit together as perfectly as possible.  Because judges don’t like even ten minutes of down time.

Just a few days away and we get the call from the bailiff.  Sorry.  Judge has a conflict.  Your case is getting brokered.  You are on standby.

Gaaaaaaaaaaaaah.

Frustrated.  But not surprised.

Office buzzes again.  Calls all witnesses.  They are unhappy.  Some will now be unable to attend.  They had already scheduled time off with their bosses.  Or they had travel plans.  Or they are doctors and have 50 patients booked solid every day.

The witnesses all want to know what the next date will be.  We can’t tell them.  The court hasn’t told us yet.

We wait until we get the call.  Case will start just one day late.  Just. This still plays havoc with everyone’s schedules.

The defense lawyer says they won’t agree to one day late.  Their witness isn’t available.  They bring a motion to continue the case again.

Gaaaaaaaaaaaaah.

Deal is worked out.  Case is continued for a month.

All the witnesses are notified.  All the schedules are reworked.  Plans made.

And we all cross our fingers and hope that this time it will actually go out on time.

Photo:  John, Anne and I making the best of the trial date continuance by eating lunch at the space needle. 

Livin’ the Glamorous Life – Another Hollyball Tale

Posted in About me, About practicing law, About running, Lawyer convention drama

hollyball2014

Wake up at 6:45.   Laze around.  Tonight is Hollyball.  Wonder what else is on schedule.  Open calendar.  “9:00 a.m. hold for Court of Appeals Argument.”  Whaaaaaaaaaaa

Text John 7:27 - is there an argument today.

Texts back 7:29.  Yes at 9:30 at first & union.

Try not to have a holy cow fit.  The word “hold” on a calendar is used when we are not certain of a date so hold it until confirmed.    The world hold threw me for a head fake.

Text John 7:34. Send me the files.

He does.  I read them.  Garth wrote them.   I know the issues very well and there’s not much case law.  Still… brain must go into warp speed.  And does.

7:55 – 8:20 -  get ready, feed nala, take her potty, grab some fruit, head out, mentally bounce through issues, calm down.

9:00 – park, look at breakfast options in “fresh” deli part of lobby.  Reject pre-packaged muffin idea.  Go to convenience store which has lemon luna bar.  Wolf it down.

9:15 – ride up escalator to appeals court.  Look up case.  We’re number one on docket.  Go thru security, let them dig through purse,  high heeled booties set off buzzer.  Get the once over treatment from the guard.

9:30 – say hi to Rory the defense lawyer.  COA commissioner enters.  We rise and begin.

10:00 – we finish.  Have not broken a sweat.  Enjoyed the adrenaline.  The positive endorphin rush from fighting for clients.

10:30 – back at office.  What else is on calendar.  Take a peek.  Oh great.  Another set of meetings double booked.  Sign this.  Sign that.  Draft that.  On the phone with 3 computer screens going.  Another typical day.

2:30 – leave.  Proud of self.   Goal was to leave by no later than 3.  Push self out of door with a little help from Nala.

2:35 – get home.   Take Nala potty.  Walk up to front door.  Leaves are everywhere from dratted street level neighbor’s maple.  She hasn’t raked them pretty much all year.  Which means I have to.   Can’t help it.  Get blower out and blow them back onto her part of the sidewalk.  This means they’ll be back on mine later tonight.  Still feel temporarily satisfied.

3:00 - throw on work out gear.  Do a few more emails.

3:15 – head out door with Nala and run around wind blown neighborhood.

4:30 – back home.  Holy heck.  Am done  two hours before hollyball begins.  This is a record.

4:35 – feed nala, move laundry from washer into dryer and start a new load.  Turn on Pandora funk 70s-80s channel.  Loud.

4:45 – shower.

4:50 – look at clock.  Still feels too early.  How long can it take to get ready.  Dink around.

5:15 – use hair dryer.  This device is used perhaps once a month for about a minute just to get things going.  Today actually dry most of hair with it.  Let’s discuss hair.  First of all, there are going to be people at the hollyball who have spent the afternoon at the salon.  My hair on the other hand, has a bit more…natural…character.  As you  may recall, it caught on fire last month.  And I used scissors to chopped off roughly 1 to 3 or 4 inches depending upon which side was less burned than the other.  In addition, Joy, the only person who has ever colored my hair, moved at least temporarily to be with her sister back east several months ago.  This means hair has some silver bits and pieces floating around.  Which I suppose adds to the whole holiday sparkle theme.

5:25 – hair is dry.

5:25 – 5:35 – put on some eye makeup.

5:35 – do not have a personal shopper or dresser.  Am just a wee bit not a Kardashian.   Have an outfit in mind.  Hopefully it will work out.  This does not involve a designer label like YSL, Gucci or Prada.  First, comes the velvet leggings by BCBG.  Have had these for three years and wear them rarely.  So they’re in good shape.  A few months ago bought BCBG tux jacket at super sale.  90% off or something like that.   Cost almost as much to dry clean as it did to buy it.  To tie everything together, last week went shopping with Cristina for a sparkly top.  Tried Nordstrom and other decent stores.  But there was nothing quite right.  Had aha moment – forget the grown up stores.  Let’s go to the teen stores.  Forever 21 to be exact.  Cristina found sparkly shirt.  $12.99.  So today, put it on.  Its a little  big.   Quite low in the front.  Consider tying straps up more.  Looks bunchy so don’t.  Put on tux jacket.  Sleeves too long.  Tailoring would have dwarfed the purchase price.  Roll up sleeps in an 80s way.  Inspired by the pounding funk.  Zip up velvet tassle booties.  Vintage prada satin party bag have had for about 20 years.

6:00  – 6:30 – voila.  Am done.   Take picture.  Post on FB.  Steven comes to get me.  Arrive at four seasons.  And hollyball the night away.

Photo:  selfie with Nala

 

 

 

Playing the “pot” card against an innocent driver

Posted in About practicing law, frivolous defenses, Tips for Attorneys

Honda_01

Driving while high is now being used as a sword by the insurance companies of bad drivers who cause crashes.

Let’s say you live in a state where pot is legal.  You get high on a Sunday evening with a group of friends in your own home.  On Thursday, you are driving down a road and someone runs a red light.  You had a green light.  The bad driver tells the officer that you look high.  The officer doesn’t see anything unusual but asks you to take a blood test.  Carboxy-THC shows up.  You are ticketed for driving under the influence.  Until a prosecutor looks at the blood work and realizes there’s no case.  At which point the charges are dropped.

This is not a fanciful scenario.

Once a person uses marijuana, THC (Tetrahydrocannibol) can stay in the blood stream for days if not longer.  However not all THC is the same.

The pharmacology of marijuana is described in terms of three chemicals:

1) THC, which is metabolized into

2) 11-hydroxy-THC, which is the metabolized into

3) carboxy-THC.

Only the first two chemicals – THC and 11-hydroxy-THC produce impairing effects on brain cognition.  The third chemical form – carboxy-THC is not psychoactive and not associated with impairment.

In a recent case, a van driver blew past a yield sign into an intersection.  At the same time, a car driven by a young man (Hopkins) with two passengers was already in the intersection.  Hopkins was on the arterial and had the right of way.  The van t-boned the car of friends.  Our client was one of the passengers in the car.  She was critically injured.

When the lawsuit was filed, the van driver’s insurance company claimed that Hopkins was at fault for not reacting faster to the van having blown through the yield signed.  They claimed that he had THC in his blood and was driving high.  Hopkins said he had used marijuana a week before the crash and was not driving high.

Attached is the motion for summary judgment filed by Hopkins’ attorney.  The plaintiff’s lawyers joined in the motion.  The van driver’s lawyers opposed it.   After a court hearing, the judge agreed that there was no evidence Hopkins was driving while high and that he was not at fault for the van having run the yield sign.  Hopkins was dismissed from the case.

Motion for Summary Judgment:  Hopkins’ MSJ

Photo:  Animation still by Larry Tompkins, P.E.

 

Time Machine: did my college frosh prediction come true

Posted in About me, family

oldpapers

Saturday morning.  Am going through and dumping old files.  The box catches my eye:  “Business Junk – Old School Records.”  All neatly organized.  Typical.

Find a two page writing sample entitled:  “Where will I be in ten years. Karen Kathryn Koehler.  English 181  Milbauer, May 9, 1979.”

This would have been typed on an IBM Selectric.  The three pages of  onion skin paper are a bit wrinkled.

The 54 year old me reads what the 19 year old me has to say.   Oh the arrogance of youth!

The teacher docked me for poor punctuation.  Never mind the run on sentences.

Where will I be in 10 years?  It’s a question I hardly ask myself as I am young and still not worried about my future.  Yet, when I examine my past upbringing, present living situation, and various expectations of life, I find I can pretty accurately predict what my place in society will be by that time.

My past plays an important role in determining my future.  I am the product of a family in which I was the oldest child.  Not only did I have my younger siblings to boss around act like a queen to, but I also had a substantial amount of responsibility placed upon me by my parents, which included setting a proper example for the rest of the kids, and often being placed in charge of things, like cleaning up the living room.  To my childhood under these circumstances, I attribute my current ability to be authoritative and my general nature of being very self-assured.

 

Ah, yes, the hardships of cleaning up that living room.

For more insight into the analytical brain of a 19 year old future lawyer (and to see if the predictions came true) here is the full unabridged and uncorrected text:

Where will I be in 10 years

Photo:  Nala helping me to go through a few boxes of old papers.

The privilege of being able to say goodbye

Posted in About practicing law, True life stories, Wrongful death

bonita1

Jan was married to her childhood sweetheart.  She made his favorite sandwich.  Was getting ready to leave for his jobsite.  So they could have a noon picnic in the car.  Phone rang. There had been a work accident.  Charlie was dead.  Jan never got to say goodbye.

Irene and Paul were both widowed when they fell in love and married.  One day he got into his favorite car and headed to the hardware store.  Bought a few items.    Just a few blocks before he reached home, a novice driver crossed the center line.  Paul was dead.  Irene never got to say goodbye.

Sharon and her youngest daughter were visiting Seattle.  Walking on the sidewalk at 5th and Pike downtown.  A driver lost control of his car.  Went up onto the sidewalk.  Striking mother and daughter.  Sharon was dead.  Her husband and children never got to say goodbye.

These stories are my clients’ stories.  They haunt me.  And have taught me.

We need to assume that our loved ones will be alive by the time we next see them.  We need to be positive.  To take life for granted – to a certain extent.  Because if we only dwelled upon death and dying, we would greatly diminish our ability to live life fully.

Yet in an instant everything can change.

In the case of traumatic death the survivors not only are grieving the loss of their loved ones.  Or worrying whether they suffered pain.  The survivors are replaying their last moments together.  Maybe they hugged before they parted that day.  Maybe they didn’t.  Maybe they blew kisses.  Or quarreled as all families do.  Almost everyone wishes they could replay and rewrite that last ending.  Hug longer.  Kiss better.  Smile and not quarrel.  Sometimes the wish to change that ending causes great survivor guilt.

On a Monday two weeks ago, my oldest dear friend (from Kindergarten) called:

Liz: did you hear about Bonita.

K3:  No.

Liz:  I heard from someone who saw something on facebook that she is terminally ill.

K3:  I will find out what’s going on.

And so, I investigated and eventually discovered that she had been recently diagnosed with the most aggressive form of brain cancer that is known to science.  Her best friend Kimber said that Bonita underwent surgery.  Had lost significant brain function.  Was in a skilled nursing facility in Fairfax Virginia.  Awaiting the end.

K3:  How long.

Kimber:  They say she may make it to Christmas.

K3:  I am going to come see her.

Kimber:  When.

K3: I will need to clear my schedule but hopefully in two weeks.

Kimber:  okay.

All I could do for the rest of the day was think of Bonita.  That night sitting at the kitchen table with Steven, started looking up flights on expedia.  Could take a red eye after teaching class Saturday.  Get in Sunday and leave Sunday night to be back in time for work Monday.  Booked the flight.  Messaged Kimber.

K3:  I’ve decide to come this Sunday instead.  The sooner the better.

Kimber:  great.

And so, that’s what happened.  Was able to see Bonita.  Hug her.  Show her pictures.  Kiss her.  Sit with her.  Help her eat a little.  Smile and laugh with her.  Hold her hand.  Tell her stories.  Reminisce.  Even though at first she couldn’t quite remember who I was.

It was a privilege to be able to be with her one last time.  And to say goodbye in person.

Photo:  Beautiful Bonita when I last saw her during a stop over in Washington DC.

 

 

 

 

A reminder about open flames: a story of how I almost became Michael Jackson

Posted in About me, True life stories

hairafter

The house is beautiful and glowing.  Am standing with back to fully enclosed gas fireplace.  Getting warm.  Talking to Steven who is sitting by the chess board.

Fzzzzzzzzz.  Crackle.

He jumps up running toward me.  Hits at my head.

Turn around to see behind me.  Whaaaaaaaat.

My hair has gotten long lately.  Down to the middle of my back.  Yesterday when we were at Umi Sake House, Alysha told me it was time for a cut.

This evening it is in a pony tail.

Reach up and can feel charcoal pieces here and there mainly near the bottom.

The pretty little tea light candles centered on the fireplace mantel had caught my hair on fire.

Steven says that he saw two flames shooting up about a foot behind me.

Am glad couldn’t see that.

Start to wander around.  Go upstairs to look at damage in bathroom mirror.  Little pieces flake out and a few clumps collect in the basin.

Text the girls the carnage in the sink.  Take another picture to show them hair is still mostly intact.

Yuck.  Says Noelle.

I told you you needed a haircut.  Says Alysha.

Get the vacuum.

Open the doors even though it is 40 outside.

Can’t get rid of the acrid smell.

Shampoo twice.

Whack at hair with scissors to make sure it is mainly straight across at the bottom.

It could have been much worse.

Photo:  Hair after fire – minus about 6″ on the right side.

 

 

Making waves: the value of dissent

Posted in About me, Women

WSTLA 2008 Board

In 2007, when I was President of WSTLA, I wrote an article called the Value of Dissent.

The focus at that time was AAJ and my perception of  its systemic problems in advancing diversity.  I was not liked by AAJ leadership for being aggressively outspoken on the issue.

Seven years later, I am now not liked by WSAJ leadership for being aggressively outspoken on the issue of lawyers directly soliciting clients (which I abhor).

Another past president of WSTLA told me:  sometimes people have a hard time with a woman who speaks out.”  He wasn’t the only person who has shared this thought with me.

Regardless of why organizational leadership particularly dislikes when I  speak up, here is an excerpt from the article WSTLA printed when I was at its helm:

The Value of Dissent

How colorless our world would be if we all had the same opinions…

In the forward to A Mathematician’s Apology (Cambridge University Press 1940) Prof. G.H. Hardy says:

It is never worth a first class man’s time to express a majority opinion. By definition, there are plenty of others to do that.

Progress is made, not by comfortably agreeing with the conventional wisdom, but by having the courage to say what no one else is saying and to say it with clearly articulated reasons that motivate people to change their opinions.

Perhaps the greatest value of dissent is “that the sponsoring and protection of dissent generally have progressive implications” for social change because “[d]issent communicates the fears, hopes, and aspirations of the less powerful to those in power.” Dissent, Injustice, and the Meanings of America. Steven H. Shiffrin. (Princeton University Press 1999).

There is a reason why law students are taught to argue both sides of a case.  Lively debate is considered a fundamental touchstone to the truth finding process necessary in a democratic society.  An organization that shies away from embracing the expression of dissident opinion, no matter how insulting, is an organization that risks being undermined and weakened by its own self satisfaction. 

But the peculiar evil of silencing the expression of an opinion is, that it is robbing the human race; posterity as well as the existing generation; those who dissent from the opinion, still more than those who hold it. If the opinion is right, they are deprived of the opportunity of exchanging error for truth: if wrong, they lose, what is almost as great a benefit, the clearer perception and livelier impression of truth, produced by its collision with error.  John Stuart Mill, (Oxford: Blackwell, 1947) at 15.  Quoted in Justice Brennan’s opinion in New York Times Co. v. Sullivan, 376 U.S. 254, 270 (1964).

Ron Ward, a true hero for the cause of diversity, sent me this quote:  “…..If there is no struggle, there is no progress. Those who profess to favor freedom and yet depreciate agitation, are men who want crops without plowing up the ground; they want rain without thunder or lightning. They want the ocean without the awful roar of its many waters.”  FREDRICK DOUGLASS, West Indian Emancipation Celebration at Canandaigua, New York, August 4, 1857.

 Photo:  When I was President of WSTLA with the board 2007/2008

Partying with VABAW – all bar dinners should be like this

Posted in About social networking, Lawyer convention drama

Tam

 

Shellie and I walk into the Triple Door on 3rd and Union.  Late as usual.

Hi.  Hi.  Hug.  How are you.  Hand shake.  Hi.  Everyone is smiling.   Am here to support Ada Ko Wong who is president Elect of VABAW (Vietnamese-American Bar Assn of WA) on its 10th year anniversary.

We figure out where our table is.

And then it’s time to start.

We sit and are joined by Tam Nguyen.  We don’t know him yet.  He is going to be the star of our evening.

Normally bar association dinners are…  Well, they are exactly like you would imagine them to be.  The food is bad.  Talking heads reign supreme at the podium.  And everyone politely claps even as they yawn .

This is not your typical bar dinner.

The presenters are in traditional Vietnamese garb instead of business suits.   Ada is in a mint green flowing gown.

A law student speaks about her VABAW scholarship that placed her in a clerkship in Ho Chi Minh (fka Saigon – but still considered to be Saigon by many – including Tam).  All followed by a fashion show of clothing primarily made of scarves.    I like the horse head one the best.

We clap in delight.  Occasionally lean over each other’s quickly emptying plates to whisper how fun this all is.  But the best part of our evening is our table mate Tam.

Tam is not a lawyer.  He and his family own the Tamarind Tree restaurant in “Little Saigon” as well as Long Provincial down on 2nd & Stewart.  Up until a year ago, Tam also was a pharmacist.  Shellie and I ooh and ahh.  We love the Tamarind Tree.  Particularly sitting outside in the summer.  Shellie says – I’ll take a vegetarian pancake.  My mouth waters.

Tam tells us that he goes to Vietnam once a year.  About 13 years ago, he went to his former neighborhood.  There sitting on a stoop was his best friend from grade school.  Drinking rice wine.  Unemployed like so many.  Ill.  His family’s assets confiscated by the communist government.    His friend had two young girls.  They were unable to go to school.  Only those who had money could send their kids to school.

On his way home Tam worried over the plight of his old friend.  Then had an epiphany.  He conceived of a charitable organization.  Enlisted the help of his best friend, an engineer.  They applied for 501c3.  Obtained charitable status after more than a year of  hassle (the IRS wanted to know where the money would come from, how would it get delivered, and other details for over a year).    The Vietnamese children’s scholarship fund was born.  Each year elders or Buddhist monks in the various provinces are asked to identify children in need.  Then the charity pays for them to go to school

How many children have you helped over the years, I ask.

Thousands he grins widely.

Thousands.

We are absolutely riveted by Tam’s stories (“I was a boat person”), experiences, and humanity.    We are all beaming.

We take down Tam’s email address.  It is long.  Are you on facebook, I ask.

No, Tam shakes his head.  Who has time for that.

So I struggle to thumb type his address into my phone.

Shellie and I need to leave before the fashion show ends.

That was totally worth it wasn’t it, I say, as we head to the parking garage.

Totally she nods.

We drive a mile south to go watch a friend perform at the Comedy Underground in Pioneer Square.  Are joined by one of her associates and another friend Bob.  Laugh.  Bob walks us back to our car.  Which is a good thing.  Because a few feet into our journey, we have to side step two drunks yelling and swinging fists at each other over twenty bucks.

Photo:  Shellie and Tam Nguyen

 

A convention speech and run around Gray’s Lake, Des Moines Iowa

Posted in about public speaking, About running

gray'slake

Get up before alarm rings at 6.  This means it is really 4.  Flop back on bed.  Alarm rings at 6:15. 

Search around for hotel phone on night table.  Don’t find it.  Sigh.  It is on the other side of the bed.  Scramble across.  Hit “O”.  Ask for front desk.  It is front desk.  Can I get a late check out.  Yes. 

Thank heavens.  Don’t have to run now.  Would have been sleep-running.

Reset alarm for 8:30.  Which is 6:30. 

Repeat process.  Get up.  Dressed.  Down to the 2nd floor.  Check in.  Listen to presentation.  Am at the Iowa Association for Justice annual convention in Des Moines.  There’s a break.  Exchange greetings with a few familiar faces.  Meet with tech guy.  Give him thumb drive.   Get miked up.  Break ends.  Do presentation.  The ballroom is short but wide.  Feels as long as a football field.  Pace from one side to the other.   

There are too many slides.  Too many points to make.  Used a presentation that generally takes two hours.  Am cramming it all into one.  Feel like am vomiting way too much information.    When will I learn.  Next time will chop out half the slides. Or more.

Stride out of there.

Back up to room.  Throw on running gear.  Exit rear door of hotel.  Onto Locust street. As in the bug.  Wind hits with a solid whoosh.   Ponytail flies straight back.  Horizontally in sync with the road.

Run through deserted looking city.  All the buildings are linked together by sky walks.  Look up and can see people walking from one building into the other.  Like in a sci fi movie where if you breathe the outside air, your eyes pop out, your skin withers up and you die.  So you stay inside in tubes.

Past cool sculptures of unused park.  Turn left on 15th.  Over a bridge.  Reach Gray’s Lake.  Looks like it’s man made.  According to the van driver is naturally fed by the river.  But can see a concrete feeder tube.  Run around it twice. 

Wind doesn’t die down.  Sometimes catch it just right.  Then it sweeps me along.  A bit like Mary Poppins.

Back through deserted city streets.  Into hotel.  Up to room.  Do business.  Rush out.  Catch van back to airport.

Photo:  Gray’s lake run

When children testify: Direct Exam of a 10 year old son in his father’s wrongful death case

Posted in direct exam, Trial Tips for Attorneys, Wrongful death

noelledog

Children may be scared to testify in a trial.  But being on a witness stand can also be empowering for them.  They are having their day in court.  They are participating in an integral part of our country’s foundational structure.  They are helping the process of determining the truth.

In this case, the trial judge does an excellent job of ensuring that the child feels safe and is as comfortable as possible.  Ellie the courthouse dog is brought in by a prosecutor.  When the child’s name is called, he walks up to the stand with Ellie.  She lays at his feet.  And when the child becomes a little anxious, a timeout is taken so he can pet her.

We are calling the child in this wrongful death case.  He is an only child.  His father was a single custodial parent.  We will not have him on the stand for long.  But the jury needs to see who will be effected by their ultimate verdict.  Our goal is to get them to truly see this young boy.

The child testifies haltingly at first.  The questions are gentle and benign.  One after the other.  Moving along.  Not letting silences linger.  Eventually he relaxes, opens up, gets a little anxious, pets Ellie, and wins our hearts.  Here is his testimony:

174
6     THE COURT:  Are you P?
7               THE WITNESS:  Yes.
8               THE COURT:  Hi, I am Judge Middaugh.
9               THE WITNESS:  Nice to meet you.
10               THE COURT:  Nice to meet you too.  Look
11   who you have got over there.  I am so jealous, is that
12   just the most fabulous dog?  She is a cutie.  So I’m
13   going to let the jury know that there is the dog in
14   the courtroom just to be here with P, just in
15   case we have a jury that’s afraid of dogs.  Because
16   that happens sometimes.  So just to let them know that
17   there will be a dog here with P.  So Gabby, if
18   you would not mind telling the jury that P is
19   here and he has the courthouse dog with him.
20               Okay.  And we can get the jury.
21   (In Court/Jury In)
22               THE BAILIFF:  Please rise for the jury.
23               THE COURT:  Okay, have a seat.  So ladies
24   and gentlemen of the jury, as Gabby told you, we have
25   this young gentleman who is going to be testifying
175
1   today.  And we have with him, we call her the
2   courthouse dog, but she actually belongs to this woman
3   who works in the courthouse.  And the dog’s name is
4   Ellie.  Right?  And Ellie sometimes comes and helps
5   out when we have children testify.  And I will tell
6   you honestly, I try to get her up here as much as
7   possible.  So if you want to look at Ellie, you can
8   stand up and take a look, she is right there.
9   Otherwise she is very quiet and she just hangs out.
10   Okay?
11               So P, how old are you?
12               THE WITNESS:  10.
13               THE COURT:  All right.  Do you know what
14   the difference is between the truth and a lie?
15               THE WITNESS:  Yeah.
16               THE COURT:  What’s the difference?
17               THE WITNESS:  Well, the truth is when you
18   are telling, you know, that’s, that’s not made up.
19               THE COURT:  All right.
20               THE WITNESS:  And a lie is something that
21   you just made up.
22               THE COURT:  Okay.  And do you know why you
23   are here today?
24               THE WITNESS:  To –
25               THE COURT:  You are going to testify, talk
176
1   in court, right?
2               THE WITNESS:  Yeah.  About my dad.
3               THE COURT:  Yes.
4               THE WITNESS: (Inaudible).
5               THE COURT:  Okay.  And when you are in
6   court or do you tell the truth or is it okay to lie?
7               THE WITNESS:  Tell the truth.
8               THE COURT:  Okay.  So I will ask you
9   today, do you promise to tell the truth today?  What
10   are you going to say, do you promise to tell the
11   truth?
12               THE WITNESS:  I promise to tell the truth.
13               THE COURT:  Okay.  If during sometimes
14   when questions are asked if you don’t understand the
15   question, will you promise me that you will ask the
16   lawyers to say the question again in a different way
17   so you understand it?
18               THE WITNESS:  Yes.
19               THE COURT:  Okay.  All right.  Then I will
20   take that as having sworn the witness in.  And the
21   first thing you are going to do is you need to state
22   your name, your full name, for the record?
23               THE WITNESS:  My name is P
24   H.
25               THE COURT:  All right.  And I’m going to
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1   tell you that this little thing right here, sometimes
2   placed over there, that is our microphone.  And we are
3   recorded courtroom, so everything is being recorded
4   and taken down when you say, so you need to make sure
5   you answer all the questions out loud and with words.
6   No nodding of your head and that kind of stuff,
7   understand?
8               THE WITNESS:  All right.
9               THE COURT:  Okay.  Go ahead.  Whoever.
10                   DIRECT EXAMINATION
11   BY MS. KOEHLER:
12       Q.   All right.
13               MS. KOEHLER:  I did want to introduce the
14   guardian ad litem.  Ms. Fargo West is here, Your
15   Honor.  (Inaudible).
16       Q.   (By Ms. Koehler) For the record can you tell
17   us your full name and your address?
18       A.   My name is PH and I don’t
19   know my address.
20       Q.   Do you know where you live?
21       A.   I live in Conconully in the Winrow
22   Apartments.
23       Q.   And who do you live with?
24       A.   I live with my Aunt Mary?
25       Q.   Cousin — lives — who live (inaudible)?
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1       A.   I’m not sure.
2       Q.   Is Mason here today?
3       A.   Yes, he is.
4       Q.   I’m going to ask you some questions and if
5   you don’t understand the questions, what are you going
6   to do?
7       A.   I’m going to ask you.
8               THE COURT:  You are going to ask her.  If
9   you don’t understand the question, you are going to
10   ask whoever asks the question if they could say it a
11   different way so you can understand it, okay?  All
12   right.
13       A.   Yeah.
14       Q.   (By Ms. Koehler) So can you tell the jury
15   what your birth date is and how old you are?
16       A.   I am 10 years old and my birthday is
17   December 9th.
18       Q.   Where were you born?
19       A.   Where was I born?  I was born in Spokane.
20       Q.   And how long did you live in Spokane?
21       A.   I’m not sure.
22       Q.   Did you like Spokane?
23       A.   Yeah.
24       Q.   What did you like about Spokane?
25       A.   I loved that I grew up there.
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1       Q.   What are some of the favorite things that you
2   have done in Spokane?
3       A.   I don’t know.
4       Q.   Do you go to school?
5       A.   Yes.
6       Q.   Where do you go?
7       A.   I go to Sunrise Elementary.
8       Q.   What grade are you in?
9       A.   Fourth.
10       Q.   What’s your favorite subject?
11       A.   Reading.
12       Q.   What’s the subject you hate the most?
13       A.   Math.
14       Q.   What kind of books are you reading in the
15   fourth grade?  Do you have chapter books?
16       A.   Yes.
17       Q.   What’s the series that you like, do you have
18   captain — inaudible)?
19       A.   Definitely not.  I don’t — I just read
20   like — kind of like comic books, kind of any kind of
21   (inaudible).  I really like big chapter comic books
22   where people are just talking.  And I read like
23   (inaudible) like actual pages like that.  Fourth grade
24   Eagles, I think.
25       Q.   All right.  Tree House, do you read Tree
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1   House books?
2       A.   Tree House books?  No, I have heard of those.
3       Q.   How many kids are at your class?
4       A.   32.
5       Q.   So how long have you gone to this elementary
6   school?
7       A.   I’m not sure.
8       Q.   Do you remember going to a different
9   elementary school or have you always gone to
10   (inaudible) school?
11       A.   I (inaudible).
12       Q.   Where was the one you used to go to?
13       A.   (Inaudible) over in, over in Warden.
14       Q.   Pardon?
15       A.   Warden.
16       Q.   Who were you living with when you went to
17   this school?
18       A.   My cousin Mason, me, and my Aunt Mary.
19       Q.   Same people?
20       A.   Yes.
21       Q.   Which school do you like better?
22       A.   Warden.
23       Q.   Why?
24       A.   Because I do.  I miss all my friends there
25   really bad.  I thought I would be able to — I thought
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1   we — (inaudible), I thought — I don’t know.  Well, I
2   like that better over there, because it’s really hot
3   over there.  Because I (inaudible) no more there.
4       Q.   Did you miss a lot of your friends when you
5   moved back to live with your dad in Spokane?
6       A.   Not that many actually, but yeah.
7       Q.   Did you develop more friends when you went to
8   school than before you started school?
9       A.   Can you say that again?
10       Q.   That was a weird question, wasn’t it?
11               Before you started school did you live in
12   a neighborhood with lots of kids, or you mentioned
13   living with your dad?
14       A.   I was more (inaudible) living with my dad.
15       Q.   Tell us about that?  What does that mean?
16       A.   I mostly stayed in the house and watched TV.
17   Sometimes I was just hanging out with my mom and my
18   dad.
19       Q.   What would you do with your mom and dad?
20       A.   Watching a movie.  Play like Starrysky or
21   something.  It’s kind of hard to remember it’s been a
22   while ago.
23       Q.   I heard something, your uncle testified about
24   was it frisbee ball?
25       A.   Frisbee ball.
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1       Q.   What is frisbee ball?
2       A.   It’s where — it’s where you get to have like
3   frisbees and they have got a point on them and they go
4   really, really far.  You put your finger inside and
5   throw them as hard as you can and try to — it’s like
6   this metal pull thing where — where it’s a like a
7   metal pull and then there is a whole bunch of chains
8   in the square box thing.  And you have to try to throw
9   it so it can hit the chains and then the — you have
10   to come to the next one, the next one, next one, next
11   one, and then you — you have a course and then
12   that’s — (inaudible).
13       Q.   How did you like to do that?
14       A.   I did it quite a bit.  I did it with my dad
15   and this one guy named Scotty.
16       Q.   So what other kinds of games like that did
17   you do outside?
18       A.   Oh, well, I know I was going to school.
19   There was one kid that would come over for a little
20   bit and my dad had like this nerf, nerf gun.  It was
21   of a missile one kind.  He would shoot it up in the
22   air and then we would try to catch it.  And whoever –
23   whoever would catch it, it would glow.  And if it hit
24   the ground it probably won’t glow, it probably
25   wouldn’t, because the hitting the ground it would
183
1   light up.  Like the corner or something would go hum.
2   Just kind of lay there.
3       Q.   Did you do things like going hiking or would
4   you say you were an outdoors guy, or more of an urban
5   guy?
6       A.   Well, we went like there was like this — me,
7   I lived in like this apartment place.  And we went –
8   went down like this trail, there was a bunch of trails
9   down there.  We — oh, yeah, we went to — we went to
10   this one place called it’s water park.  We went
11   swimming there.  We just — we went to parks too, so.
12       Q.   Your dad, were you pretty close to your dad?
13       A.   Yes.  I was very close to him.
14       Q.   Can you tell us a little bit about that?
15       A.   Well, um. [can't speak]
16       Q.   So your Uncle Mike said that you like to
17   barbecue a lot.  Did you go over to his house for
18   barbecues and things like that?
19       A.   Yeah.  When we went over for barbecues
20   sometimes — most of the time it would be for like
21   holidays, birthday parties, stuff like that.  Or
22   sometimes in the summer, if it was just really hot.
23   It would be just like a hot weekend, we would go over
24   there.  That was like the main place where everybody
25   was going to go.  And like that, like on holidays,
184
1   like on Christmas.
2       Q.   Christmas where everybody –
3       A.   I don’t know it was just a family
4   get-together sometimes.
5       Q.   Can you tell us who you all is in your family
6   so we can kind of get to know your family a little
7   bit?
8       A.   My cousins and –
9       Q.   The people that you would spend time with.
10       A.   Oh, I would spend time with this girl named
11   Hally.  And it was my uncle, my uncle’s daughter.  I
12   would — I would sometimes — sometimes when everybody
13   was inside, I would go outside and be playing soccer
14   with her.  And — and –
15       Q.   That’s okay.
16       A.   Huh?
17       Q.   You getting a little nervous.
18       A.   A little bit.
19       Q.   Take a drink of water and pet Ellie.  I think
20   she wants her tummy rubbed.  She is on her side.  Go
21   ahead, you can do that, no problem.
22       A.   You are very interesting.
23       Q.   Good.
24       A.   That’s very good.
25       Q.   So would you mind sharing with us how it’s
185
1   been for you when your dad got sick, do you remember
2   that?
3       A.   Yeah.  I remember.
4       Q.   And do you feel that you are comfortable
5   sharing with us about that?
6       A.   Sure.
7       Q.   Sure.  Tell us about your dad getting sick.
8   That you — (inaudible)
9       A.   Well, I kind of went through a lot of
10   sadness, because when my dad would talk to his friends
11   that he would be like so the doctor just told me like,
12   Oh, you got cancer.  (Inaudible) but he actually, he
13   actually got — he was supposed to die in 2 months.
14   But he spent (inaudible) he passed away.  But he was
15   sick.  He had like this big puffed up thing on his
16   neck.  It was — it felt like a big ice bag on top of
17   it.  And, oh yeah, me and him couldn’t pay the rent
18   and stuff, so we just went over to our friend’s house
19   for a little while.  Just moved to his friend’s house
20   for a little while.  And there was there was two
21   teenagers, and a boy and his sister, and they were –
22   well, in that same picture.  I would hang out with
23   them when my dad was like downstairs watching TV.  But
24   when my dad would be out or doing something, like
25   going to the store or the hospital whatever, I would
186
1   be like, I would be either be playing with those two
2   or I’d rather be playing on my, my (inaudible).
3       Q.   So your dad let you know what was going on?
4       A.   Um, well, I only pretty much heard like when
5   he would talk to his friends.  The stories, I would
6   get what he was saying.
7       Q.   And figured it out, you know?
8       A.   Yeah.  Yeah.  And my mom would tell me that
9   your dad is pretty sick, you know, but.
10       Q.   Were you really, really, really happy that he
11   got to live longer than they thought he would?
12       A.   Definitely, yeah.
13       Q.   So what did you do to to make — make those
14   times really special for your dad, what did you do to
15   cheer him up?
16       A.   Well, I didn’t really, at that time I really
17   I was like — I never really — I always forgot.  I
18   always forgot that he was sick, because we were always
19   having so much fun.  So I honestly didn’t know until
20   when I was at school one day and it was like three –
21   maybe a month away from school summer.  And he said we
22   are going to go camping that summer, because we didn’t
23   get to do it the last summer.  So and then — and then
24   my mom told me my dad has to — it’s time for him to
25   go over to (inaudible)So I got pretty sad.
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1       Q.   So he — again, anytime you don’t want to
2   answer my questions, it’s not going to — it’s okay to
3   say for you to say, I don’t want to answer.  I don’t
4   want to invade your privacy too much.  But if you are
5   okay talking then we will be here, you know.  We
6   really want to hear from you what you want to say,
7   okay?
8       A.   Okay.
9       Q.   Still doing okay?
10       A.   I’m fine.
11       Q.   Want to pet her one more time?
12       A.   Sure.
13       Q.   Okay.  Were you able to say good-bye to your
14   daddy before he died?
15       A.   The last time I said good-bye was — was I
16   can’t really remember, but I remember that it was the
17   last weekend that he spent at home, you know.
18       Q.   What did you guys do the last weekend?
19       A.   I can’t really remember.  A little hard to.
20       Q.   Yeah.  So –
21       A.   I kind of feel it was like just the same
22   ordinary thing.  That’s one of the things why I was
23   crying so much that he passed away.
24       Q.   So obviously you were very sad when he passed
25   away?
188
1       A.   Yeah.
2       Q.   Have you been able to talk to somebody about
3   how to get through this time?
4       A.   Yeah.  I have had — I don’t know what they
5   are called.  People who help, that you can talk to.
6       Q.   Counselors?  Yeah?
7       A.   Counselors.  I have had counselors to — I
8   still have a counselor actually.
9       Q.   Is that a her or him?
10       A.   It’s a guy, yeah.  And he is sort
11   (inaudible).
12       Q.   Do you talk to him whenever you feel like it,
13   or do you have appointments?
14       A.   I have like appointments, I don’t know when
15   the appointments are.  But like on Tuesday and
16   Fridays, like that.  (Inaudible).
17       Q.   So you do you see him a couple times a week,
18   or once a week?
19       A.   Once a week definitely.
20       Q.   Do you feel like that you have — do you
21   really like — I mean do you feel like it’s a good
22   idea that you have counselor?
23       A.   Yeah.  Because then I get to express my
24   emotions and then he sends me back home.  Then I will
25   be able to talk to somebody instead of like being in
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1   my room and crying.
2       Q.   So you seem like you are one heck of a well
3   adjusted 10-year old.  And I guess my question is, how
4   have you been able to just stay so cool?
5       A.   My dad was all about that I guess.  I guess I
6   kind of just learned from him.
7       Q.   Tell us about that?
8       A.   To pull through.  To kind of pull through
9   whatever happens.  What happens, to just to keep on
10   going.
11               MS. KOEHLER:  Thank you, very much.
12               THE COURT:  Any questions?
13               MR. SMITH:  No questions, Your Honor.
14               THE COURT:  Any questions for P from
15   the jury?  You guys just want to pet the dog don’t
16   you?  Okay.  Well, that means you are done.  And so
17   you can go and I guess you can take her with you,
18   though I am very sorry to see her go.  I don’t think
19   she wants to leave.
20               UNIDENTIFIED FEMALE SPEAKER:  I think she
21   just wants to stay.
22               THE COURT:  I think she wants to stay here
23   in the courtroom with us for the day.
24               UNIDENTIFIED FEMALE SPEAKER:  She can stay
25   a while.
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1               THE COURT:  No, that’s okay.  You can take
2   her, you can take her home.  Thank you, very much,
3   Porter.  You want to walk her out?  I bet you can?
4   Oh, she really does want to stay here.  That you very
5   much for letting her visit with us.
6               THE WITNESS:  Yeah.  Really, thank you.

Transcript from 2014 asbestos wrongful death trial.

Photo:  Noelle celebrating her 21st birthday with a visit to the animal shelter in Nashville.