The Velvet Hammer

The Velvet Hammer

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

If at first you don’t succeed… moving to stop improper deposition objections

Posted in About practicing law, depositions, The most obnoxious...

dandaman

Ms. A (she of the 257 objections ) is defending another deposition.  This time of an electrical expert.  Her stream of objections has not changed course since Mr. T’s deposition.

I challenge her on the record.  This is to satisfy CR 26i should I decide to bring a motion:

K3:  What’s wrong with the form?  I think you’re being abusive with the objections.

A:  You’re not setting a foundation, you’re just saying — you’re making conclusory statements and then asking him about it.  He has nothing to say that –

K3:  I mean, what the heck was wrong with that question?  The foundation was page is 118, we’ve been talking about it.  I don’t understand.  I want your objections to slow down or stop, I don’t want them to continue.  So if you want to educate me with what was wrong with that question –

A:  I just did.

K3:  I just heard it.  It as a clear question and it was a clear answer, and you objected for no reason.

On top of that, it turns out the defense has forgotten to provide me with 8 of the 9 CD Roms of material provided by the expert.  We recess. I bring a motion for “order instructing defense counsel to cease interfering in deposition with improper ‘form’ objection.”

In response, the defense charges that I have filed a frivolous motion, made for the improper purpose of harassment, and requests $2,000 in sanctions.

This ticks me off.  Makes me upset.  Makes me think bad things. And even makes me worry.  Am I out of my mind.  Don’t I know the difference between a good and bad objection.  Will the court be upset that I’ve brought another deposition abuse motion.  No – I need to bring this motion.   If I don’t she’s going to continue to think she’s doing it right.

I go for a run.

I did not ask for sanctions when I filed this motion.  Didn’t ask for anything other than an order telling the defense attorney to knock it off.  I’m going to stay on high ground.  Not stoop to swing back.  I write the reply brief in as calm a tone as I can muster.

The Court grants my motion and also elaborates as follows:

“The court grants the motion that motions (sic she means objections) as to form are too indefinite at times to rule on and interfere with the flow of questions and answers.  (The court notes that Mr. L’s materials were woefully incomplete which is a much more serious matter of delay and confusion, violating prior orders of the court).  Plaintiff’s first example (“when was the first time”) is well founded.  The second example, (“well you asked him”) is not well taken as abusive, because the witness didn’t know if it was volunteered or asked.  But, SO WHAT!!

Save your strength for something important.  “Form” objections are not helpful to parties or court and can lead to confusion or coaching.  Objections such as foundation, compound, asked and answered, and vague are permissible.  Defendants shall pay expenses of this re-do continuation of Mr. L’s deposition.”

Motion and Order:  SKMBT_C55215082111290

Photo:  Dan wore this outfit to our last attorney meeting.  I want his shirt.

Is it improper to object 257 times in a deposition.

Posted in About practicing law, depositions

nalaobjecting

The Tale of Mr. T has one more chapter.  Following part 2 of his deposition, I am on a seminar panel for AAJ in Montreal along with Federal Judge Bennett.   He is talking about his now famous order sanctioning a national defense firm for deposition abuse.  His speech is exceptional.  He urges us to not be content with the minimum bar set by court rules .  To strive for a higher ethical standard.  He is inspirational on so many levels.

As he’s talking, I’m thinking – hey.  I just suffered through that.

In Mr. T’s secnd deposition, new defense counsel objected excessively.  It is so notable that after the transcript arrives, John counts them and re-counts them.  257  by this defense attorney (not including the objections from Mr. T’s personal attorney).  In a transcript that is only 150 pages long.

I have plenty on my plate.  But am moved by Judge Bennett’s call that we insist upon protecting the integrity of our proceedings.  So I stay up late and write a motion to strike and remove those objections and to have the defense pay the cost to edit the video.   This is met with a vehement response from defense counsel.  Charging that the motion is frivolous and ” an inappropriate and mean spirited personal attack on defense counsel and another attempt by Plaintiffs to turn this into a side show.”

Ultimately The court partially grants and partially denies the motion:

Ins. Co is correct that parties have not met and conferred, insofar as they have not designated which part of deposition will actually be used at trial.  Court will not strike all objections by Ins. Co; although many of the “asked and answered” might be sustained, many of the “form” objections would be denied.  Until record is determined, court’s ruling would be confusing.  After record if finalized, costs of editing will be shared on this video dep.

The table has now been set.  This counsel and I have one more deposition to finish.  Will she heed the lessons inherent in the court’s ruling.  Or will she not.  Stay tuned.

Motion and OrderSKMBT_C55215081913590

Photo:  Nala Objecting

Nala goes kayaking

Posted in About me, About Nala

KayakNala

Oh goodie.  Oh goodie.  Yay.  Yippee.

We are up here at the cabin.  Am looking out the window in the living room.  Watching her carry the little blue kayak down the hill.  She is trying to mimic Sol who balances the big kayaks on top of his head.    Oops.  There it goes over to the left.  She hefts it up.  Then it slops over again.  She looks like a wobbly blue turtle as she makes her way down.

Lays the kayak on the ground.   She’s  looking at the river which is accessed by going over a steep embankment.  Probably factoring me into the equation.  Decides to lower the canoe to the river’s edge.  Gives it a little push.  It slips over the embankment into the river. I hear her shout.  The kayak is travelling all by itself.  She hops and slides down.  Jumps into the river.  Splashing.  Not sure if she’s swimming or water-running.  Grabs it.  Makes her way back.  Parks it where it should have stayed to begin with.  She climbs back up to the cabin.  Shorts leaving puddles as she  rushes about.

Me, I’m being patient.  Finally, she’s changed into a neon pink bikini.  Waterproof wallet bag strapped around her waist along with a water bottle.  The ice cubes clang each time she takes a step.  Safari hat and sunglasses.  A real fashion statement.   I’m standing there.  Thinking.  Hurry up.  Hurry up.

She straps on my life vest.  Yah.  I know.  Sounds awful.  I’m no baby.  But actually, I feel quite snazzy in a nautical way.  There’s a handle on the top of it so if I can’t figure out how to get back in she can grab and lift me to safety.  It is bright orange and clashes hideously with her bathing suit.

We lock the door and head down the hill.  I try to roll in something odorous and delicious but she tells me to stop.  Reach the water’s edge.  She puts the kayak in.  Gets in.  And so do I.  This is the tricky part.  It is small.  My two front feet go on the prow.  But the back feet just can’t get comfortable.  So I put them on top of her thighs.  Haven’t had a manicure lately but she doesn’t complain.  Relieved we’re actually in.  And off we go.

She’s decided to paddle up the river and then we will float back.  This is so fun.  I’m shaking with delight.  There are gulls and little birds and baby fish in the water.  I don’t know what to look at first.

Bump.

I try to disregard but there it goes again.

Bump.

She keeps hitting my behind with her paddle.  Tries to push me forward.  Tells me to put my feet on the floor instead of her.  But I don’t want to.  I lurch to the right.  The kayak is tipping because I weigh 28 pounds dry.  And I’m wet.   So she better leave me alone.  My hind feet make their way back onto her thighs.  And I decide to tolerate the bumps.

A group of four people in different colored  kayaks are coming by.    They are smiling and pointing at me.  They get closer and say they thought I was a little kid until they got closer.  She makes pretty with them.  I’m focused on a bird and ignore them.

Next up are a couple in two kayaks.  The man has a benji dog on his prow who is not wearing a life vest.  Which is lame.  In my opinion.  They wave.  She makes pretty with them too.  And I act supercilious.

She’s doing a pretty good job of paddling until we get stranded.  The water is low from lack of snow melt this year.  We are not moving.  Stopped on pebbles.  She stands up and gets out.  I do too.  The water feels good.  It hits me just below the knees which is not very high. I prance around in it.  She starts pulling the kayak.  We have a good ways to go.  The river has been slow up to this point.  Now it’s moving at a good clip.  She gets to a part where the water is about a foot deep and tells me to get back in.  But I don’t want to.

There’s a bird who is catching baby fish.  I am transfixed.  Imagining how wonderful it would be if she would let go of the leash.  I would then skim over the water to the bird.  And then get it.  I’m not sure what I would do if I did get it.  Since I’ve never gotten one before.  And I don’t think she’d be happy with me. But I don’t care.  And then she is ruining my day dream.  Tugging at me and saying: Nala get in.

By now I’m wrapped around and under the kayak.  She has to untangle me.  I jump in.  But the bird takes off.  So I jump out.  The kayak goes backwards and gets stuck on the pebbles again.

She tries to push us forward with the paddle but we are too stuck.  She tries to push with her arms but that’s a fail.  She has to get out again and pull it along.  Gets back to the spot she thinks will work.  Gets in.  I’m still watching the bird and pull her backwards.  Predictably she falls out of the kayak into the water.

This whole getting unstuck business goes on for about ten minutes.  This is a long time for a human when there are people who have set up camp along the shore on the other side and you are their entertainment.   Me, I don’t care.  A second bird has now joined the first.

Eventually she gets us out of there.  I’m firmly planted on her thighs.  We go for a bit longer until we get to another point where she’ll have to get out again to pull us.  Instead she decides that’s enough.  So we turn around and go back the easy way.   Downstream. Back to the cabin.

I try not to chuckle as she drags the kayak back up the hill in that bikini.  Run in a perfect loop around her legs.  Watching as my leash gets tangled.  And almost drops her to her knees.

Photo:  Me on my kayak trip on the Wenatchee River.

 

 

Class Action allowed to proceed against lawyer who used police reports to get clients.

Posted in lawyer advertising

happydance

I can’t begin to say what I truly think of this article. Clap Clap Clap.  Happy Dance.  Yay.

The practice of law is a noble profession.   Getting clients through foul means is crap.

Excerpt from Cook County.com article :

 A Chicago personal injury lawyer specializing in litigation involving motor vehicle accidents will need to answer allegations he violated federal privacy laws in allegedly using personal information on police traffic accident reports to solicit potential new clients, after a federal judge declined to dismiss a class action lawsuit against him over the alleged business practices. Earlier this year, Antonio and Karen Pavone sued the Law Offices of Anthony Mancini, of Chicago, alleging attorney Mancini and his firm had violated the federal Driver’s Privacy Protection Act.

The case centers on a letter the Pavones alleged they received from Mancini about a week after they were involved in a traffic accident in Schaumburg on Jan. 15, 2015. The letter, which asked them to hire Mancini to represent them in any litigation or claims surrounding the accident, allegedly included an unredacted copy of the traffic crash report prepared by investigating police officers. That report included their names and personal information, as well as that of their minor son.

The Pavones said the letter, and in particular the report with the personal information, left them “shocked and dismayed, very concerned their personal information and that of their child had been transmitted to someone they did not know and used to solicit them for legal representation.”

Article:  http://cookcountyrecord.com/stories/510630742-judge-nixes-move-to-dismiss-class-action-vs-lawyer-accused-of-using-crash-reports-to-market-to-new-clients

Photo:  me doing happy dance last weekend during Sol’s softball match.

Why I saw Trainwreck for the third time – recovering from a Mind Meld

Posted in About practicing law, direct exam

theater

 

Psychodrama is popular in trial lawyer circles.  This weekend it is taught at our trial lawyer convention.  I do not attend.  Happily.

I don’t care for the term psychodrama.  I’ve heard many good reviews from friends and colleagues.  I know many of the people who teach it.  But honestly, just hearing the word psychodrama causes a bit of a nose wrinkling reaction deep within me.

Please don’t hate me or think any less of me for being honest about this.  Psychodrama is the “in” thing.  More power to everyone who can learn from and benefit from these techniques.  But for me, it is just too much hullabaloo.  Too much in the brain.  Too much technique.  Too much consciousness for that which is in the intuitive realm.

One of the most wonderful but also emotionally horrific opportunities we have as plaintiff lawyers, is to learn about our clients and their families and friends.  We get to hear their private stories.  We get invited into their homes and hearts.  It is humbling to know how much we are trusted.  They know we are there only to help.  And that we will never hurt them.  But still we are lawyers.  Doing a job.

When I interview survivors and other people who have been personally touched and affected by a loss, I do not do psychodrama.   I do not go through a checklist.  I do not have an advance plan.  I have no outline.   I do not have a specific end goal.    I tell them that I am Oprah and they are my guest.    But there is something else that goes on and the best way I can describe it is to talk about Star Trek.

Now I am not Spock emotionally.  Just ask my kids.  However, I do appear to have developed a Spock like trait.  It is the Mind Meld.

The person I am interviewing will sit down.   We will get as close as feels right.  Lock eyes, and go to wherever we end up going.  We are human to human.  There is no artifice.  I don’t mind if we are speaking in present or past tense.  It doesn’t matter if we are physically acting out what happened, or just telling the story.  Our emotions are connected.  There is no judgment.  The anxiety fades away.

This is not to say that we shouldn’t learn techniques like psychodrama if they help.

But for me, I’m all about the Mind Meld.

There is an after effect however.  When Spock came out of a Mind Meld, he felt a bit faint.  This is true also for me.  Mind Meld is an almost out of body experience because it is all about the other person.  Every ounce of my being is focused on seeing, hearing, understanding, comforting, acknowledging, validating and being fully there with the other person during our journey.   When we separate from this bond, recovery is needed.

And so this weekend, after the convention, I drive to a small city.  Engage in four Mind Melds.  Then needing to decompress, find the local theater through Fandango.  And watch Trainwreck for the third time.  Amy Schumer is hilarious.

Photo:  The theater

 

 

 

Dear Karen – Do you wear suits to trial, if not what’s your typical “trialwear”

Posted in About practicing law, Women

 

outside

A male news anchor from Australia wore the same suit every day for a year - changing his shirt and tie – and no one noticed.  He did this to prove a point after becoming frustrated with the constant criticisms levied by the public against his female co-anchor’s appearance.

“No one has noticed; no one gives a s**t.  But women, they wear the wrong colour and they get pulled up.  Women are judged much more harshly and keenly for what they do, what they say and what they wear.”

I am pragmatic in dealing with this kind of double standard.

My top priority is my client.  I have to do everything in my power to put their interests first.  If jurors or  judges are going to have inherent biases against me based on appearance, it is my j.o.b. to do my best to make sure these biases are neutralized one way or the other.

I choose not to spend my time railing against the unfairness of stereotypical gender based clothing differences in the legal profession.  Instead, I focus on the positives:

1.  The stereotype of the “shark” lawyer that our public dislikes – is a white male in a suit and tie carrying a briefcase.  I will never look like that and am not so quickly type cast.

2.  The “male suit” looks formal and harsh, like a coat of armor, unless you are wearing seer sucker or linen which pretty much never happens in the Pacific NW.

3.  The differences between a gray, black and dark blue “male suit” – are negligible.  You will always look the same.  This is why Mr. Australia Anchorman got away with his one suit year.

4.  Remember what the people of China looked like when Mao ruled.  I’m  American and value individuality.  I don’t want to look like a prototype.

5.  We won our independence from Britain in 1776 and created a superior civil justice system that includes the right to trial by a jury of our peers.  We don’t have to wear uniforms of powdered wigs and black capes.  We are free of that.

6.   Sometimes I want to look like Power Woman.  Sometimes I want to look Gentle (which contrasts nicely if I am doing a hard cross of an expert). Sometimes I simply want to look the opposite of what the defense lawyers look like.   I want to be able to harness every ounce of persuasive ability that I can muster.  And that includes my visual appearance.

So the answer to the young lawyer who asked me the question of what is my typical trial wear is this:

I am formal but not overly so.  I always wear a jacket but it may range from a tailored black button down Hugo Boss, to a swingy three quarter length wide sleeve, from buttons to snaps, collars to no collars.  Labels to H&M.  I wear a lot of skirts. A line is too confining.  Typically above the knee, but there are a few longer ones.   I have only a few true suits and they are all more than 10 years old.   Everything is mix and match.  Just gave away my last white button down shirts because never wore them.  Like soft cotton or silk shirts.  Dresses too.  I don’t wear a lot of pants, but will.  I am a blue jean/legging person and don’t care for slacks as much.  No tan colored nylons.   Black tights in the winter and lots of lotion in the summer.

Finally, I mainly wear black and some gray.  For a few years, I tried to go lighter.  But black is my favorite color.  Plus everything matches which makes it easier to throw things together.

Photo:  By Cristina of Me and Nala when not in trial.

 

 

 

 

Mad John

Posted in About practicing law, depositions

madjohn

John doesn’t get angry.

He may get grumpy (on rare occasion).

But he doesn’t get angry.

I take for granted his smiles.  His good attitude.

John do this.  John do that.

Okay, he says and does.

I can be pretty bossy.  Comes with the territory of being a trial lawyer.

But today John is not happy.

We have been trying to schedule a deposition.

This doesn’t sound like it should be difficult.  But it almost always is.  Have to find a time that works for everyone.  In this case, the witness who is not a party is also bringing his own lawyer.  Finally find a date.  Send out the notices.  Book flight and car on Monday.  Always wait just to make sure.

2:00 pm Wednesday email from defense – “unfortunately” the witnesses’ “counsel can longer attend the deposition on Friday.”

2:05 pm email from me –  “These things happen and I don’t blame you.  But crap.”

John has been rushing around helping get materials ready for deposition and doing many other things for many other cases.

He comes into room.  I say – the deposition is off.

And then mad John appears.

This rare sighting results in the above picture.

Photo:  Mad John

On hospital introduced flesh eating bacteria and superbugs

Posted in Wrongful death

thor1

 

The calls are coming in with increasing frequency.  Loves ones have died after simple medical procedures.  The cause:  killer bacteria introduced into the body sometime during or after the procedure.  Surgical incisions aren’t even necessary.

The survivors are usually in shock.  One day the husband has some problem with the digestive tract and is going in for an exploratory scope.  A little while later, his organs have rotted and died from the inside out due to a hospital introduced micro piranha feeding frenzy.

If a person dies from this type of bacterial infestation, the hospital needs to be proactive.  It should immediately conduct an investigation to determine the exact microorganism involved and an autopsy should be ordered.

The procedure should be no different than what we expect if a restaurant causes someone to get e-coli or other food borne illness.  The restaurant needs to figure out what happened immediately.  Isolate the cause.  Scrub down and eliminate the hazard.  And take care of the people sickened or killed.

When public safety is involved, institutions shouldn’t try to protect themselves from possible lawsuits by pretending life threatening contamination problems don’t exist.

Photo:  Thor – given to me by my future son in law Sol on mother’s day.  Thor would strike his mighty hammer and deal with these organisms and institutions.  Swiftly and surely.

Jane the Court Reporter

Posted in About practicing law, depositions

jane

I met Allison when I was a defense lawyer.  She was so darling that she became my go-to court reporter.  When I became a plaintiff lawyer, nothing changed.  I still used Allison.  Others liked her as well, so Allison grew her business (Verb8tim Reporting) and hired Jane.

Yesterday, Allison was the court reporter for me.  This morning it’s Jane’s turn.

Court reporters are neutral professionals.  They don’t take sides.    Allison and Jane are my two favorites.  They always have a smile.  Never fall asleep (I would).  And do a great job.

Today, we are shooting the breeze, talking about Jane’s newest greatest steno machine.  Goodbye large metal stand carried in a suitcase.  We chat about her dog and dad.  Dad has just turned 99.  Amazing.  And about some of the funny things she’s transcribed over the years.  Like the witness who testified that the “car driver was driving erotically.”

The moral of this story is that court reporters are people too.  Here are some tips on how attorneys should treat a court reporter.

  • Say good morning, how are you, yes please and thank you.
  • Make eye contact occasionally.
  • If the deposition is going to go through the lunch hour – make sure that’s okay.  (I once knew a court reporter who had hypoglycemia and grew faint when lunch time came and went).
  • If the deposition is going to go past normal business hours – make sure that’s okay in advance.
  • If you need a transcript on a rush basis, do not yell and throw a fit.
  • When reading, do not race through the text.
  • When speaking do not mumble or speak with your chin resting on your hand
  • Ask the court reporter where you should sit if you are unsure
  • Do not talk at the same time as the witness
  • Do not talk at the same time as the other attorney
  • Do not talk at the same time as the interpreter
  • Wait until the court reporter has finished marking an exhibit before you start talking again
  • Make sure to provide a case caption
  • Be prepared to help provide the correct spellings for names and other case specific terminology

Photo:  Jane with her light speed steno machine

The Woodpecker and another tale of betrayal

Posted in About practicing law, The most obnoxious...

woody

Someone is knocking on the door.  Nala starts barking.  Reach over for phone.  It is 6:30 a.m.  The knocking continues.  Realize it isn’t knocking.

Jump out of bed.  Rush to the balcony door.  Throw it open.   There’s a flurry of beautiful brown and orange red wings.  The woodpecker flies onto the 45 year old maple tree.  Looks back at me over his shoulder.  And takes off.

Up until yesterday, I quite liked Woody.  Had seen him hanging around the neighborhood.  A  Northern Flicker.  Quite glorious.  I was putting a few flowers in pots on the deck (since we’ve skipped winter here in Seattle).  When from out of nowhere he flew up to my house and started pecking at it.  I ran upstairs.  Craned my neck.  Spied one large hole and several smaller ones on the upper corner of the siding.  How could he.

With visions of holes completely being drilled through the wall I ran downstairs.  Got duct tape and aluminum foil.  Ran back uipstairs.  Dragged a chair onto the little balcony.  Had visions of falling off backwards over the railing.  Didn’t fall.  Taped foil as close to the holes as I could reach.  Came back inside.  Googled – how to get rid of a woodpecker.  Saw that putting foil up was actually a pretty decent idea.

Then this morning I awaken to him pecking again.  Remember Google also said try a wind chime.  Just happen to have one downstairs.  Run downstairs.  Run back up. Spend ten minutes untangling the strings.   Alysha brought it home from Thailand.  Brown bamboo and silver.  With a little elephant holding onto everything from above.  Hang it on the light fixture.  Next to the the aluminum foil.  It tinkles in the breeze.   Hopefully this will do it.

Woody and I started off as friends.  But he turned on me.  Forever changing the nature of our relationship.

When getting to know a new insurance attorney, I extend every courtesy.  Start out with the assumption that they will act professionally and respectfully.  Tend to get along well with most counsel.  Have developed friendships that have endured well after a case has resolved.

There’s a defense lawyer – let’s call her Ms. A.   She’s newer to the practice.  So far we have gotten along just fine.  Ms. A does tend to be a bit strident in the tone of her writing.  But I’ve shrugged that off as stemming from trying-to-prove-herself type of issues.    Have  decided to give her the benefit of the doubt.

We periodically chit and chat off the record.  There are many times, when Ms. A shares her personal struggles with me.  I never tattle or use anything against her.  This is an unspoken code.  We appear to be able to be friendly while still being adversarial.

This week, she files a reply brief in the case involving  deposition witness Mr. T.    Apparently she’s finally read my blogs on Mr. T.  Not sure what took her so long.  The blogs are written with the full knowledge that the defense tracks them.

There’s nothing in the blog posts that should be that surprising -unless you are interested in my wardrobe, or what I watch late at night on the treadmill.  Yet she decides to use the blog to attribute petty  improper motives to me.   Also known in Latin as an ad hominem attack.  She says:

1.            Koehler “was personally motivated” to bring the motion to compel so she could create “fodder for her blog and as a means of gaining bragging rights.”

2.            Koehler is on a “personal vendetta” against Mr. T

3.            The blog posting was “maliciously motivated.”

4.            The blog postings are “simply not appropriate”

Unfortunately duct tape, foil and a wind chime will not take care of this.  I calm down long enough to send an email:

Dear A – My best friend in the whole wide world is a defense lawyer.  I used to be one.  I respect both sides of the bar.

That said, your passive aggressive nature of being polite in person and being personally insulting and rude on paper, can no longer be tolerated by me.  You have crossed the line.  For no good reason other than to try to win a motion that you already lost.

I shall not repeat the derogatory comments you shared with me privately concerning Mr. T.  However, do not ever share any personal story with me again.  Do not act as if I am your friend.  Do not expect me to treat you with kindness and compassion in the future. 

I am quite willing to be Pollyanna.  Eager for people to act decently.  But once they start pecking on my house, I am guided by the stern words of Dick Foreman.  The  senior litigator who first supervised me as a then young defense lawyer.  He said:  you are not here to make friends – you are here to represent your clients.

I bring a motion to strike Ms. A’s brief. And a motion to shorten time.  Which the defense opposes. 

The Court ultimately enters an Order pretty much confirming the prior ruling on Mr. T.  At the bottom she writes:

blog order

 

Photo:  Anti wood pecker pecking strategy.