The Velvet Hammer

The Velvet Hammer

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

Ellie – the courthouse dog

Posted in About practicing law, direct exam, trial diary excerpts, True life stories, Wrongful death


Am resting on a sandy beach somewhere nice and warm.  Every so often someone gives me a tasty little treat and a sip of ice water.  The breeze gently rustles my fur.  Seagulls caw in the background.

Ellie – time to wake up, she says.

No. No.  Am in a wonderful place.  About to take a dip in the warm water.


Sigh.  Open one eye and look at her.    Her blond hair is in a pixie cut.  Eyes twinkle behind hip glasses.  Today she’s wearing a tailored gray pantsuit.  Quite mod and stylish.  She’s a prosecutor.  This means she puts bad people away.  To me she looks like Tinkerbell. Her name is Paige.

Come on Ellie we need to get going…

Get up as slowly as I can.  Make sure she knows how happy I was until her interruption.  Am wearing my snappy blue vest.    She clips on a leash (not that I need one), and we head to the elevator.  Get out on the seventh floor.  Stroll down the hallway.  Meet another lawyer.  Her hair is long, dark and curly – kind of like Medusa.  She seems alright to me.

Medusa leads us into a courtroom that is not in session.  It is being used as a waiting room.  And there he is – the little boy.  He smiles at me.

While Paige walks me over, I check him out.  Excuse the cliché, but this boy is as cute as a button.  I want to lick his freckled face silly.  But know my manners.  He’s wearing a button up black shirt and a skinny tie.  His hair does that whoop de whoop thing that you can do with some sort of styling product if you’re cool.  He’s cool.

He pats the top of my head and my sides.  Nice.  I lay down and Paige shows him the way to my heart.  Rubbing my belly of course.  Oooh,  that is the best.  Even worth waking up.  Make friends with him a little longer, and Medusa says – okay time to go. 

I know what this means.  Put on most adorable facial expression.  Follow the lawyers, little boy and his family members.  Walk across hall into Judge Middaugh’s courtroom.  Paige and the little boy walk up to the witness box.  I know he’s scared.  Can feel it.  The jury box is filled.  The judge and her staff are up on a pedestal.  Lots of dark suited lawyers line tables.    They all smile at us.  Do my best to look coy.

The little boy sits down.  I lay down at his feet.  Paige is perched behind us.  The judge asks the little boy if he knows what it means to tell the truth.  He does.  Medusa starts asking questions.

Little boy is anxious.  So I do my best imitation of a slug hoping it will calm him down.  Periodically Medusa asks if he’d like to pet me.  Of course he says yes (who wouldn’t).  And as the questions continue, he relaxes.  Yup there it is – he just smiled.  The questions continue, he doesn’t want to answer a few of them and doesn’t have to.  He deserves to pet my stomach, so I roll over. 

Then it’s over.  But first, Paige gives the little boy a tasty treat.  Which he delicately pops into my now happy mouth.

Stroll out of there.

Back in the elevator.

Back to the prosecutor’s office.

Lie down under Paige’s desk.

Find my way back to that sandy beach.

Photo:  Ellie and Paige at the King County Courthouse in Seattle.

Is this the biggest bozo move ever by a defense medical examiner

Posted in About practicing law, Defense medical exams



Before this happened, the dumbest thing I ever witnessed in a defense medical exam, was one of the doctors falling asleep.

It was a two doctor panel exam.  While the orthopedist was taking a history, the neurologist was reading a political thriller.  I thought that was bad enough until midway through.  His head was nodding and then jerking forward.  Like a puppet on a string held by Mr. Sandman.  Until he gave in.  Chin coming to rest on his chest.  At least he didn’t snore.

I saved this lovely tidbit of information for the perfect moment in mediation.  And it worked.

Sleeping during a medical examination is pretty awful.  But at least it isn’t consciously awful.

The latest dumbest antic involves a defense neuropsychologist.

Oh, there was hooting and hollering by the defense in setting this thing up.  They agreed to an observer.  Then when the observer showed up, they said she couldn’t stay for the testing part of the exam.  But they had forgotten to mention this before.  And there was a court order not mentioning it either. The doctor refused to proceed.  Phone calls flew back and forth.    Ultimately his Highness got his way.  The observer was not allowed into the room during the testing phase.  And the defense should have been gleeful.  But they hadn’t counted on what their doctor did next.

What did he do after strutting around proclaiming the sanctity of the secret neuropsychologist testing society.  Why, he sent our client  home with her unfinished test.  Told her to finish it.  And mail it back.

Photo:  Panel exam trial exhibit from a different case.  These doctors didn’t fall asleep.  They just chose to ignore what the plaintiff had to say.

Tips for Attorneys: Injured passenger not liable for possible marijuana use by driver

Posted in About practicing law, Forms, Tips for Attorneys


Now that marijuana has been decriminalized in Washington state, issues are going to arise about driving under the influence.  Unlike alcohol which only transiently stays in the body and can be detected with various tests, the detection of marijuana is a bit more complicated.

In this case, a van driver  plowed through a stop sign into an intersection without touching his brakes. He smashed into a small car coming from his right.   That car had the right of way.  It had no stop or yield sign.  It was travelling within the speed limit.

During the lawsuit, the defense tried to turn the tables by blaming the plaintiff car passenger for causing the crash.

Even though the car driver did nothing wrong while driving, the defense claimed he reacted too slowly.   They argued that he should have predicted that the van would blow the stop sign and that he should have taken evasive action.  They banked their argument on the finding in his system of a byproduct of marijuana known as carboxy-THC.

At the scene, the police saw no signs of intoxication of the car driver.  Forensic toxicologists determined there was a little carboxy-THC in the car driver’s body.  Carboxy-THC stays in the blood stream for quite a while, even if you are not using marijuana.  The car driver said he didn’t use pot before the crash.

The defense said the plaintiff was at fault because she got into the car with a driver who was under the influence.

My partners Paul Stritmatter, Garth Jones and I, along with co-counsel, proactively brought a motion for summary judgment against the claim that the plaintiff was comparatively at fault.

This defense was ultimately thrown out of court.  Here is the brief: Pl’s Motion for Partial Summary Judgment.

Photo:  Trial Exhibit from the case

Tips for Attorneys: Filing a motion for protective order on collateral sources

Posted in About practicing law, Tips for Attorneys


Defense attorneys go to legal seminars too.    One technique they have been learning is how to take advantage of liberal discovery rules.  Increasingly we find them invading where they have no business being.

We can passively let them dig unnecessary holes in our clients’ lives.  Or we can push back when they cross lines.

Here is the sequence of what happens:

1.   Defense issues obnoxious discovery request seeking something that is none of their business.

2.  Plaintiff lawyer (hopefully) says – we are not going to answer that.

3.  Defense lawyer calls for a discovery conference as a prelude to bringing a motion.

4.  Defense lawyer files a motion to compel.

5.  Plaintiff lawyer responds.

6.  Defense files reply brief.

7.  Court rules on the motion

One  of the best strategies of how to engage in litigation warfare as a plaintiff attorney is this:  prosecute the case.  This means do everything you can not to be on the defensive.  The sequence above shows the plaintiff defending the discovery issue.  This can be switched around.  File a motion for protective order instead of waiting for the defense to file a motion to compel.  By being proactive, plaintiff gets to frame the issue for the court.  And better yet – gets to file a reply brief.  There’s some joy (not to mention technical advantage) in being able to have the last word.

Attached is a motion for protective order filed in an underinsured motorist lawsuit where the car insurer tried to get the disability insurance files of the plaintiff.  Mtn for Protective Ordersample.

Photo:  Two broken statues in a museum in Olympia Greece.  They could have used a protective order.


Paul Luvera’s special timer

Posted in About practicing law, about public speaking, mentoring


Paul Luvera tried a huge case a few months ago.  And won.  At the age of 78. (Here’s his bio).

I have admired (borderline worshipped) Paul over the years for his skill in trial.  Several times I’ve gone to watch.  What  struck me, was the way he so gracefully prowled the courtroom floor.  And owned it.

For the past almost 30 years, our state trial lawyer’s annual convention has featured the Luvera Seminar.  Paul moderated the program based upon ten minute presentations.  If you went over – DING.  The timer went off.  If you didn’t do a good job – ouch.  And even if you did a good job – one never knew how Paul would react.  All of this fear, uncertainty, and mastery combined to create a highly anticipated program.

The first time I spoke at the seminar, it was on spoliation of evidence.  My focus was not simply to survive the experience.  I wanted to impress Paul.

Over the years, Paul has sent me books and quotes or articles he thinks I’ll like.  He is always learning and thinking and wanting to grow more.

This year, Paul decided to end his seminar reign.  The association invited me to take over the permanently named Luvera Seminar.  This is what Paul initially wrote:

“…I was very flattered regarding the name of the program and thrilled you were doing the program at the convention in my place. I told Gerhard (the Executive Director) you had that ability to run the program with observations and advice that people would like. You know  that I admire your continuing search to improve your skills, your  courage in meeting challenges and your potential for even  more greatness as a trial lawyer. I am not one for false praise and  you have been on my short  list of attorneys from whom I expect great things  even with a glass ceiling  in this profession.”

Today in the mail was a package from Paul.  A vintage yellow Sunbeam quartz timer with a note:

“Hi Karen -  Hanna Reisner, the first Executive Director of WSTLA gave me this timer more than 25 years ago to time talks.  I pass on this gift which I used at all of the convention Luvera seminars, or if you prefer, for cooking at home!”

Sometimes I need to pinch myself.  This is one of those moments.

Photo:  Mailing wrapper of Sunbeam timer and Paul N. Luvera’s note.

P.S:  Here’s his blog.

Preparing for Deposition: Oh. And by the way, he’s a white supremacist too…

Posted in About practicing law, The Good Wife, Uncategorized


John, Anne and I are a Toulouse Petite.  Having our staffing meeting while eating breakfast.

A:  Do we need to do anything else to take X’s deposition.  We have the court order.  The Assistant Attorney General says he doesn’t think X will agree to say anything.

K3:   We could issue a subpoena and have him served.  But he’s already in prison.

A:  Can’t we just give it to the AAG.

K3:  No, we didn’t sue the criminal, we’re suing the State.  So they aren’t representing X.  I guess we could send a notice of deposition to the Warden to give to  X.

A:  Okay.  Well, you know he’s in the big prison right.  The one where really bad people go.

K3:  That’s okay, Ed (cocounsel) is coming too.

A:  Right.  Okay then I’ll get it set up.  We’ll see if he’ll talk to you.

K3:  Well, he may.

A:  The AAG said they will arrange for extra security.  Oh, by the way.  Did you know that he’s a white supremacist.

K3:  What.

A:  Jody mentioned it to me the other day.

K3:  Oh that’s just great.  He’s going to really like Ed (African American) and I (Hapa).

A:  I wasn’t sure if you knew.

K3:  Fantastic.  Well, I better just go do this on my own.

John:  I can go with you.

K3:  The Good Wife goes to jail all the time to talk to felons.  I can handle it.

John:  That’s tv.

K3:  Trust me.  Won’t be a problem.

A:  If you don’t pull your hair back straight and leave it fluffy he might think you’re Italian or Mediterranean.  It’s only when your hair is more flat that you look real Asian.

K3:  Super.  I’ll do my best to look as Italian as possible.  We need to get him to talk.

Photo:  Anne showing up with her sunglasses.  on a completely overcast slightly dreary morning.

P.S.  Notice my initials.  Yes.  My mother decided that it would be a good idea for me to “own” having 3 Ks as my initials.  How appropriate.



Reminder or threat: an insurance company’s intimidation tactics

Posted in Uncategorized


Insurance companies cite the “duty to cooperate clause” when they are forcing the person they insure, to provide information.  If you don’t give them the information they ask for, then they will maintain that the entire policy is void and you are not entitled to make any claim.   In this case, I’m the one who said no on behalf of my client their insurer - and in return they quoted the clause.

Here is what happened.

This is a lawsuit against an insurance company brought by their own insured for Underinsured Motorist Benefits.  The insurance company tried to get documents from a totally different insurance company to use against Mr. X.   I said, no you can’t do that.  They responded with this letter:  “Mr. C, as a UIM insured seeking to obtain benefits under the terms of his UIM policy has an obligation to comply with that UIM policy.  The cooperation clause of the UIM policy states…”  It ended: “Please let me know if your client is going to continue objecting…”

I brought a motion to the court which included this:

Defendant’s threat to invoke the failure to cooperate clause based upon plaintiff counsel’s decision to bring this matter to the court’s attention is an abuse of the litigation process.

This Court has the authority to govern these legal proceedings and specifically, to decide whether a work product privilege exists relative to the other insurance file materials.

In a heavy handed attempt to avoid this Court’s involvement in compelling discovery, Defendant Insurance Co. threatened that it would invoke its failure to cooperate clause and void coverage if plaintiff counsel did not voluntarily permit production of the other files.

Most insurance policies have a cooperation clause.  If the insured “substantially and materially” breaches such a clause, they may be contractually barred from bringing suit if the insurer can show it has been actually prejudiced.  The burden of proving noncooperation is on the insurer.  See Staples v. Allstate Inc. Co., 176 Wn.2d 404, 411, 295 P.2d 201 (2013).

In Staples, before suit was filed, the insured failed to submit to an examination under oath (EUO).  The insured’s subsequent suit for bad faith was dismissed due to failure to cooperate to the EUO.  The Supreme Court reversed due to the trial court’s failure to require a showing of actual prejudice.

A claim of actual prejudice requires “ ‘affirmative proof of an advantage lost or disadvantage suffered as a result of the [breach], which has an identifiable detrimental effect on the insurer’s ability to evaluate or present its defenses to coverage or liability.’ ” Tran v. State Farm Fire & Cas. Co.,, 136 Wash.2d at 228–29, 961 P.2d 358 (quoting Canron, Inc. v. Fed. Ins. Co., 82 Wash.App. 480, 491–92, 918 P.2d 937 (1996) (alteration in original).

In the case at bar, the alleged failure to cooperate does not stem from  Mr. Cs’ acts pre-suit.  Defendant  never claimed that Mr. C failed to cooperate from the date the claim was first made until now.

Instead, the impetus for Defendant’s wielding of the failure to cooperate sword; is the resistance of plaintiff counsel to improper discovery.  This counsel’s reasonable and justified actions should not trigger threats that coverage for Mr. C will be voided.  D’s bully tactic should not be condoned by this Court.

To which the insurance company responded:

Insurance counsel’s reminder that the cooperation clause exists is not an abuse of the litigation process….Counsel’s reminder that the cooperation clause requires cooperation is similarly not an abuse, since discovery of facts, statements, and opinions of Plaintiff, his employer, and his doctors is authorized, especially where they will be called as testifying witnessees.

To which I responded:

Defendant’s threat to void the policy if the plaintiff pursues judicial relief does not have to technically amount to “abuse of process” for this court to enter a finding.  The plaintiff has not (yet) alleged abuse of process.  This is a bifurcated UIM damages and bad faith proceeding.   Defendant’s behavior in telling plaintiff that his counsel’s bringing of a discovery motion will be used as grounds to void the policy should be addressed by this court now.  Otherwise, as this matter heads towards trial, Plaintiff will be intimidated from vigorously advancing his case for fear of losing all claim to benefits.

So was it a reminder or a threat. You be the judge. Photo: The girls feeling threatened…or not

Damages Opening Statement: catastrophic brain injury case

Posted in About practicing law, opening statement


Both sides used extensive demonstrative exhibits during opening.  Basically we agreed that I could use what I wanted so long as they could use what they wanted. 

The transcript is not very accurate (understatement).  The courtroom was video recorded.  If we wanted a quick transcript, at the end of the day  the bailiff would copy the recordings and provided them to a court reporter. The reporter would then transcribe from the videos with only moderate success.

Frankly, it’s a bit distracting to try to read this.   At times I sound completely illiterate.  And you can’t see the exhibits, Videos or PowerPoint.  Still, it gives an idea of the damages portion of opening statement.  


6    This is the overview of C’s
 7   injuries that I’m going to talk to you about now.  She
 8   had what’s generally called a diffuse axonal injury,
 9   meaning that there wasn’t one, you know, particular –
10   there it is, that’s the part of the hemorrhage that is
11   the problem, it’s all over her brain.
12             It’s in all of these different areas that
13   are noted here.  It’s pretty much all through it.  The
14   doctors — and you’ll be able to see brain and
15   neurologists looking into the brain and showing you
16   all of the problems by videotape.
17             At this point we are going to show you an
18   animation that’s not an actual brain surgery, but
19   we — there are so many medical records; for me to
20   tell you them would take a long time and be very
21   boring, and instead, we can show it to you.
22             This was recreated, and doctors have signed
23   off on it as being what happened with Chanetelle.  I’m
24   going to do this without any explanation.  During
25   trial we’ll have somebody explain this.
 1             (Video playing).
 2             That was the first surgery.  And what
 3   basically happened, I’m not a neurosurgeon, but just
 4   so you know, when the brain is injured like that, like
 5   any body part, it wants to swell.
 6             So in order to prevent probably death in
 7   this case, the doctors have the technique where they
 8   actually take off parts of the skull, and that allows
 9   the brain to swell beyond, you know, the head, where
10   it needs to go, and then eventually it will go back.
11             And that happened.  They actually put the
12   skull in a freezer, a piece of it in a freezer, and it
13   stays there for, in this case, about half a year.
14             So this is going to be the second surgery of
15   this procedure.  There were lots of other surgeries,
16   and I’ll talk to you about those later, but this is
17   the second surgery on putting the skull back.
18             (Video playing.)
19             It’s amazing, surgery, and — they were able
20   to put most of it back together, but you can see it’s
21   not quite all the way.
22             Looking at the damage to C’s brain
23   is an interesting medical feat.  There is a
24   neurologist who is — has a very, very high quality
25   brain imaging beyond MRI.
 1             And this is kind of Greek to some people,
 2   including me, but I have a blowup here.  And MRIs are
 3   kind of like, they take slices this way, so it’s kind
 4   of — you’re not seeing a three-dimensional, and
 5   that’s why there’s so many of them.
 6             So, for example, what this shows are pretty
 7   much black holes.  The black holes are where the brain
 8   hemorrhages were that have permanently damaged the
 9   brain.  And these, again, are scattered all through
10   C’s brain.
11             But I just wanted to pull one so you could
12   see it.  There will be more testimony on how her brain
13   was injured from a scientific standpoint.
14             C was in a coma for five weeks at
15   Southwest Medical Center.  She has had a very
16   difficult course of treatment and came close to death
17   many times.
18             She is, you know, a miracle, because in
19   April they were going to put her in a, basically, I
20   don’t know a better word to say this, but more like a
21   warehouse type of place where a person that’s
22   completely non-responsive goes, you don’t need therapy but
23   they’ll care for you.  It’s a hospital bed where — so
24   she’d been stabilized by this time.
25             And I think it was the morning that she was
 1   destined to be moved, she startedtalking — it’s in the chart
 2   notes, and it’s quite remarkable, that that was one of
 3   her miracle points, and changed the course of what
 4   she’s able to do today.
 5             This is C, this is when she
 6   has had — her skull piece is not there, so you can
 7   see that her temple is sunk in.  This is her long-term
 8   boyfriend, who is still her boyfriend and fiancé,
 9   J.
10             Because of the coma, and then how she’s been
11   able to recuperate and what she’s left with,
12   C is appearing in this case under her
13   guardian, KB is here.  He won’t be here
14   during the entire trial due to his commitments because
15   he’s a full-time guardian.
16             He’s appointed by the court to authorize
17   this litigation, the hiring of Mr. J.  And
18   this — and basically, at this point, to manage every
19   single aspect of C’s life because she did
20   not — she was incompetent to do so, in part because
21   of the coma, and then her severe restrictions after.
22             So I’d like to talk about some of these
23   injuries.  These are hard to read, but we’re going to
24   be going over them quite a bit.
25             Do people want to stand up while I do this?
 1             THE COURT:  Do you need to set up?
 2             MS. KOEHLER:  I just need to get it, and
 3   then set it up.
 4             THE COURT:  (To the jurors)  Did you want to
 5   stand up for a second?  You’re welcome to.
 6             MS. KOEHLER:  So these are the injuries that
 7   she suffered.  And I’m doing it this way rather than
 8   showing you, literally this many medical records,
 9   piece by piece.  So we already talked about the
10   traumatic brain injury, which is the most severe
11   injury.  She –
12             THE COURT:  Do you need a laser pointer?
13             MS. KOEHLER:  No, I’m okay.
14             This is a little bit bigger, so you could
15   see it a little bit better.  She was obviously not
16   able to function without mechanical equipment, so she
17   agreed, through a tracheotomy tube that was placed,
18   and you’ll see that she did have a recurrent lung
19   collapsing.  Unfortunately she got MRSA.
20             She had right-sided rib fracture, she had
21   problems with her lungs, fluid buildup in the lungs,
22   she had — her spleen was lacerated from the
23   collision.
24             She had major problems with her feeding
25   tube.  To this day she has — she literally has a scar
 1   that looks about like this, maybe it’s a little
 2   taller, it’s a big — it’s very thick.  Because they
 3   had to do so many operations on that feeding tube, it
 4   got infected.
 5             She just — that was — it was almost
 6   life-threatening at times, it was very, very
 7   problematic.  Peritonitis, which was the infection,
 8   she has septic shock, recurrent urinary tract
 9   infections because of the catheter injuries, and she
10   also ended up having a blood clot.  This was just a
11   very sick gal.
12             So let me go to the surgeries.  And this is
13   a little bigger.  These are just representatives.
14   This is of what would generally happen.
15             So the first procedure that was done of her
16   brain was to put a monitoring device inside of it, into
17   it.  You saw this surgery, the second surgery is one
18   of the surgeries that you saw.
19             She had a chest tube surgery, she had
20   feeding tube surgery, she had breathing tube surgery,
21   she had another chest tube surgery because of
22   complications.
23             On March 11 she had the abdominal leaking
24   and the sepsis and all that, so she had that repeated
25   feeding tube surgery.  She had to have lung intubation
 1   on March 14, she had to have it again on March 21st.
 2             And then like I said, it’s about half a year
 3   later, September 23rd, she had the final surgery to
 4   reattach her skull piece.
 5             So these are surgical procedures, not the
 6   multiple other procedures that she had.  The date of
 7   her discharge diagnosis — normally when you go to the
 8   hospital and you have a discharge diagnosis you have
 9   one or two things.  As you can see, she had 14 items
10   on her discharge diagnosis.  I’m going to show you
11   those in a minute.
12             This is — her day of admission was
13   February 27th and her date of discharge, which was, as
14   I told you, the miracle when she was able to not be
15   discharged to be warehoused to be rehabilitated.
16             This is a bigger version of her discharge
17   diagnosis.  So again, her admission discharge is
18   different than your discharge diagnosis, which is why
19   I’m going through this again.
20             She has a traumatic brain injury, and this
21   is their words, not mine, acute respiratory failure
22   with tracheostomy placement and also removal, right
23   pneumothorax with chest tube placement times two
24   resolved.
25             Pulmonary contusion, the fracture of the
 1   right fifth rib, the splenic injury, grade 1.  Her
 2   gastro tube placement.  She had a laparotomy for the
 3   G-tube erosion with new placement of the G-tube.
 4   Spasticity, the entire left side, greatest in the hand
 5   and foot.
 6             She had some other issues like dehydration,
 7   acute blood loss, anemia, hyperkalemia, leukocytoses,
 8   and narcotic dependence due to the pain medications
 9   they were giving her, so this was as of April 3rd,
10   2009.
11             What I’m going to show you now is a video of
12   Ctaken on May 12, 2009.  So this is –
13   I need power.
14             All right, so this in May of 2009.  I
15   believe that this entire video is like an hour and a
16   half, so it’s not what you’re going to be watching,
17   you’re going to be watching, I believe it’s something
18   like four minutes, so you might see some editing, and
19   it’s simply because it was an hour and a half.
20             So this is C in rehab on
21   May 12, 2009.  Let me tell you one other thing.  We’re
22   going to have sound with this, and I’m not sure,
23   because this is an open therapy room, you might hear
24   therapists that are talking to C and other
25   people talking, so it might be a little distracting,
 1   but I think you can sort it out.
 2             THE COURT:  Would you like to take a break
 3   while you work out the technology?
 4             MS. KOEHLER:  He’s got it, but he’s got a
 5   30-minute version.
 6             THE COURT:  I’m going to give you the
 7   morning break while we work with technology to try to
 8   figure it out.  Leave your pads on your chair and go
 9   on back to the jury room.  About 15 minutes, folks,
10   roughly.
11             (Jurors exit courtroom.)
12             (Recess was taken.)
13             (Jurors enter courtroom.)
14             THE COURT:  Have a seat.
15             (Playing Video.)
16             MS. KOEHLER:  My apologies.  She was
17   discharged from the hospital on April 30, so a month
18   and a week later in the rehab.  The other woman in
19   this film is K, which is C’s
20   grandmother, the blond woman.
21             (Video concluded.)
22             MS. KOEHLER:  We’ll be showing more pieces
23   of this.
24             For example, she’s going to be working on
25   speech.  She works with a number of different
 1   therapists to reconstruct her ability to do some
 2   things like speech and memory.
 3             You know, the reason that she can’t walk is
 4   not due to an orthopedic problem, she didn’t break
 5   bones and she’s not paralyzed from a spinal cord
 6   injury.  She’s got a very severe brain injury.
 7             You probably don’t know very many people
 8   that have a brain injury that has resulted in
 9   paralysis and spasticity of parts of the body.
10             The way that this works is the primary blow
11   is to the right side, and that correlates to the left
12   side being, for whatever reason, I don’t understand it
13   myself, that’s the side that is paralyzed and spastic.
14             She’s wearing the helmet, and she does that
15   until she gets her brain — sorry, her skull put back
16   together, so it’s a protective device.
17             C, I can’t remember exactly –
18   we’re getting closer to the end, so I’m trying to
19   remember exactly what’s on my machine, but she was not
20   able to walk much better than this after the hospital
21   and getting through all of this rehab.
22             Washington State and Oregon do not have a
23   specialized inpatient program for people with severe
24   brain injuries that’s devoted to that, this is more
25   general kind of therapy.
 1             So for that reason, her guardian authorized
 2   her to go to a brain injury specialty center in West
 3   Virginia.  And she did that in between November and
 4   December of 2009.
 5             They wanted to keep her longer.  You’ll meet
 6   C, and you’ll see that she is — she is a
 7   forceful personality.  She does not want to stay away
 8   from her family and she wanted to come back here, but
 9   she did stay for a full month.
10             And when she left, she was able to walk.
11   Maybe not like you or I, but she was able to walk.  So
12   it’s gotten — it eventually — brain injuries, you
13   can progress with or without hard work if you’re
14   lucky, and then you plateau after I think –
15   the doctors will say two years after an injury, you’re
16   pretty much as good as you’re going to get, although
17   you can always work to strengthen and do that.
18             So she made remarkable progress from the
19   time she was discharged and then for the next two
20   years.  She really did do well.  But there’s a feeling
21   on how well she can ever get.
22             So in February of — the date’s on the next
23   page.
24             MR. SCARPELLI:  January 2011.
25             MS. KOEHLER:  January 2011 she — a company
 1   that was part of her guardian went back to court.  She
 2   was no longer comatose and she was no longer in a
 3   rehab facility.
 4             After she left Virginia she came back to
 5   stay with her grandmother, and then she and her
 6   boyfriend, J, moved out into an apartment for a
 7   while — it’s back and forth from the grandmother to
 8   this apartment to the grandmother, but for a while
 9   they had an apartment.
10             And she went back to court to have some of
11   her rights restored, because you’ll remember when the
12   guardianship was entered, it was a complete
13   guardianship because she had just come out of a coma.
14             So these are the rights that were restored
15   to her.  She can vote, she can possess a license to
16   drive, though she doesn’t, she can consent or refuse
17   to medical treatment, she can decide who will provide
18   care and assistance to her, and she can make decisions
19   regarding her social life.
20             This is what she still cannot do.  She
21   cannot marry or divorce, she cannot enter into a
22   contract or make or evoke a will, she cannot appoint
23   someone to act on her behalf, she cannot sue or be
24   sued other than through her guardian, she cannot buy,
25   sell, own mortgage or lease property, and the guardian
 1   continues to have access over her medical records.
 2             In other words, what happens is that the
 3   guardian manages most of her affairs.  She gets, for
 4   example, an allowance.  She has difficulty managing
 5   anything.  And we’ll hear from some other people that
 6   work with her on a regular basis as to how challenging
 7   that is.
 8             Let me tell you a little bit about
 9   C before I finish here.  C was born
10   to parents who were not the best.  Her father has
11   definitely gotten better as he’s gotten older.  He’s a
12   source of a parental involvement now in her life,
13   whereas in her childhood he was absent.
14             Her mother, I think she — I think C has
15   seven brothers and sisters, all of whom have different
16   fathers, so there are a lot of half-siblings.
17             Her mother did not maintain a household for
18   the children that was regular, so C was moved, for
19   example, periods of homelessness on top of it.
20             So she did not have the privilege of going
21   to an elementary school and a junior high and a high
22   school in the same — you know, like our children do.
23   It was constant upheaval and difficulties with her
24   mother.
25             Regardless of all that, I call C –
 1   and I think that the words to me that describe 

 2   C is that she’s just truly got true
 3   grit.
 4             She dropped out of high school, but she took
 5   her GED.  She was tested early in the third grade, and
 6   then not ever tested again for things like IQ.  Her IQ
 7   was normal, it was average.  And she passed her GED,
 8   which does take some brain power to do.
 9             And at the time of this collision she was
10   living with J.  They had gotten an apartment
11   together, and she was — had a part-time job providing
12   childcare for a woman with an autistic child.
13             Her passion in life is children, probably
14   because she spent her life taking care of her younger
15   brothers and sisters.  That’s what she wanted to do
16   with her life was — her big dream was to own her own
17   day care.
18             That was — that, to her, would be
19   absolutely the best thing of life.  Who knows, because
20   she was 18 years old when this happened.
21             So as a brain-injured person now, there’s a
22   little different issue going on.  Her true grit is
23   still there, and you’ll see it, but there’s something
24   else that’s there, and that is that she’s no longer
25   the same person.  You can still see bits and pieces of
 1   her, and if you’re with her for an hour, you’re going
 2   to be drawn by her.
 3             But what you see for a short period of time
 4   is not what you get with C.  She has a
 5   lower IQ, she struggles very hard to not show any sign
 6   of being injured at all.
 7             She doesn’t acknowledge that she’s injured,
 8   she doesn’t want to be injured, she doesn’t want to
 9   act like she’s injured, she doesn’t want to have
10   anything to do with being labeled an injured person,
11   and that is probably  the reason that she’s able to
12   walk.  She just really, really, really did not want to
13   have her life change from this, and really struggled
14   to get better.
15             But there’s some problems, because she’s
16   reached that plateau point where she’s not getting –
17   she’s not going to see that day, the miracle moments
18   are gone.
19             One issue she has that’s rather severe is
20   that she was injured in her temporal lobe.  She’s got
21   major emotional — and we will look at them as
22   emotional problems, but they’re not just — you can’t
23   go to counseling and fix this problem.  She cycles up
24   and cycles down very, very fast, escalating to anger.
25             She’s verbally abused everyone in the
 1   guardian’s office.  She — she is sweet, and in an
 2   instant goes another direction.

20             I told you during voir dire that there are a
21   lot of expenses involved in this case, and I know that
22   it sounds like a lot of money, and it is.  We didn’t
23   create how much it costs to keep someone alive
24   following a collision like this.  She didn’t choose to
25   go to the hospital.
 1             Her past medical expenses are $733,000, just
 2   for her past medical expenses.  She is not going to
 3   work again.  There have been suggestions that maybe
 4   she can volunteer somewhere, maybe she can find
 5   periodic — some type of employment.  Because of her
 6   volatility, working with …

16             And I’m not doing the math, but there will
17   be people in here to talk about that.  And her wage
18   loss for a lifetime, even at a very low rate of pay,
19   she only had a GED, she wanted to work in childcare,
20   is still somewhere around $2 million.
21             The bigger amount of money is the amount
22   needed to care for C.  She has caregivers.
23   She’s had caregivers that were hired way more than
24   they are now.
25             One of the problems that we’re seeing, the
 1   guardian will talk about, is that she’s not having
 2   enough care.  Her house is becoming
 3   unmanageable-looking.
 4             She’s got very poor hygiene, she doesn’t eat
 5   right, to the point where she’s had to go to the
 6   doctor for digestive problems.  You told her to eat an
 7   apple, she eats like she’s a 13 year old boy.
 8             So there’s caregiving expenses needed for
 9   her, and those are going to be projected for you.
10   There’s a big range, and I’m not going to even get
11   into why there is a range, but our job is to make sure
12   that there’s enough money, if liability is found, to
13   take care of her.
14             This is the last video I’m going to show you
15   of C.  As I told you before, if you
16   spend a few moments with her, you will find her charming, and
17   if she’s in a good mood, you probably won’t know that
18   there’s a problem.
19             Try to take her out to dinner and there’s a
20   piano playing and people talking, and you’ll see she
21   won’t even walk into the restaurant.  She can’t deal with any kind
22   of multiple sounds or distractions.
23             She just cannot — she’s just not able to
24   function like a normal person, even though she tries
25   her best to look like one.
 1             She’s had her deposition taken two times in
 2   this case, and the last time — and a deposition is
 3   when your sworn testimony is taken by the other side,
 4   in this case the defense, and her last deposition was
 5   taken almost two months ago.
 6             And I want you to see that she has made
 7   progress, she’s not like the person that we saw in
 8   May.
 9             I would like you to notice — I’ll tell you
10   what she has is she still has a footdrop, she has
11   difficulty walking, the left side of her body is
12   paralyzed, she has very little use of one of her arms.
13   And this is just to show you the brain injury can be
14   seen here.
15             (Video playing.)
16             MS. KOEHLER:  Thank you

Injury diagram by Duane Hoffman.

Running the decrepit sidewalks of New Orleans

Posted in About running, Lawyer convention drama


 Out the revolving door of the Sheraton onto Canal Street.  Run across two lanes of traffic, the street car in the middle, two more lanes of traffic and reach the other side.  It’s late in the afternoon.   A nice assortment of unfortunate ragged souls line up against neon lit buildings. 

A woman’s high pitched yelling penetrates my headphones. Have gone just over a block.  She is ahead of me to the left.  Crying.  Her male companion and another man are fighting.  As in fists flying boxer style.  The other guy is a big brute and a much better boxer.  I keep running towards them.   Cristina would not be happy with me.  But it is a wide sidewalk.

 The little guy goes down.  Woman yells.  Little guy gets up.  Big guy says you want more.  Woman yells stooooop.  Little guy wants more.  Excited bystanders come bounding over to get a better look.  I keep going.   The next building down is the custom’s office.  A guard is on the steps watching them slug it out.  As I approach, she decides it’s over and looks the other way. 

And this is the good part of town.

Am heading for the riverfront.  Have to pass several intersections to get there.  This normally wouldn’t be too much of a problem.  But there’s something missing – the bulbs in the pedestrian lights.  Try to figure out if can go or not based upon the traffic lights.  This is a bit of a guessing game. 

Get to waterfront.  There are fences and tarps everywhere.  They are fixing it up.  A cruise ship is docked at one end.  Am going the other way.   The water is not that lovely to look at.  Brown water rarely is.  But there are no cars.  Pass a group of happy hippie kids with rings in their noses who are lounging on the water’s edge getting high.  Reach the end of park, by the flea market in the french quarter.  Travel past the tourist section.  Into the residential district.  Very few cars here.  Like it better than the Garden District which ran yesterday. That district is nicer, but too busy.  And the sidewalks are even worse than here. 

Actually there is no such thing as an actual sidewalk.  Bits of brick, slate, mud, or concrete chunks pave the bumpy, pock filled, hazardous way.   Sometimes with tree roots growing up out through and around them.  Looking like giant petrified tentacles.

A woman passes by on a brown bicycle with big white wall tires.  Workers are excavating a building.  A man is walking his two dogs.  The aged bassett hound turns and lift his head up towards me.  His sad left eye is opaque from a cataract. 

The houses are generally ramshackle.  Some have given up completely and fallen into total disrepair.  Some have been revived quite nicely.  Others are painted brightly in garish colors.  Like tangerine orange, with blue and green trim.   Gates are rusted.  Or covered with paint that still shows the rust.  There are no straight lines.  Everything is crooked or bowed.  Mardi Gras beads slung over banisters.  A super-sized mask pinned to a screened door.

My eyes are focused downards almost always.  Watching out for holes and puddles and other booby traps within the broken bits of sidewalk.  Then of course, it darts out from under the car scurring across the sidewalk.  Disappearing under a garbage can.  One big fat rat.  Gross.


Neighborhood taverns dot street corners.  Rumpled patrons hanging over the bars.   Round the next bend, and there’s a coffee shop.  A preppie dude is sitting on the ground in front of it.  Earbuds in.  Talking on his cell phone.  Typing on his apple computer.  Look inside the windows – more of the same.

Weave in and out of all these little streets.  Back onto river trail.  Cross the non-pedestrian lighted intersections.  Through the revolving doors.  To the elevator. 

Guy from AAJ convention is chatting with me on the way up.  Says he is going to go for a run too.   But in the gym. 

Photo:  From yesterday in the Garden District.


Email smack down: dear defense lawyer – are you hoping our client will die

Posted in About practicing law



Adversarial litigation can  leave us feeling angry and indignant on behalf of our clients.  Someties we can turn our cheek.  Walk away.  Other times, we need to engage.  When we decide to strike back, we always need to remember to keep the court in mind. 

Written interchanges by mail or email have the potential to end up in a motion before the court. Retaliating to a bad email by throwing out a heated written slap is not a good idea.  It can end up as Exhibit A.

I used to wait 24 hours before responding to make sure was able to be logical and tactical instead of hotly emotional.  This is a good rule of thumb.  But not one that I still follow after 28 years of being in practice.  Write.  Re-read.  Look at it from the Perspective of – can it be Exhibit A.  If so, hit send.   

Nov. 26, 2013. 3:15 pm

Karen — As you know, we’ve been asking for more than a month for information about the PET scan that HS was supposed to have done in early October.  I also asked to know when it was done so that we could get the updated information as soon as it was performed.  You did initially tell me in response to my inquiry that it had been postponed due to your client’s hospitalization with pneumonia, but has it been done now, and if so when and where?  The judge said that within 24 hours of you getting medical records, you were supposed to provide them to us and the PET scan results was one of the key medical records we said we needed when the judge said this.  So do you have it (and “you” includes your client, case manager or any of your other experts or retained “case workers”)?

I understand at last week’s deposition at the Vancouver Clinic you expressly interfered with MC’s efforts to learn whether the PET scan results were contained in the Vancouver Clinic chart even though we have a valid release for those records and the chart had been subpoenaed for the deposition–I’m told that you instructed the physician not to provide us with the information from the chart or even to confirm yes or no whether the results were in the chart.  Our records retrieval vendor says they have checked with the Vancouver Clinic and Salmon Creek and one other location yet have been unable to obtain information or confirmation that the ordered PET scan was performed.  Clearly, as we have said many times, we need that information to assess damages.  If this mediation is going to be a serious effort to  settle this case, then it won’t work if you are hiding this critical information from us.  So please confirm one way or another whether HS has gone in for the PET scan that was ordered in early October, if so where and when it was performed, and if you will provide us with the results.  As we have been saying, we want to know this before the mediation.

Thanks, T

Nov. 26, 2013.  5:03 pm

Dear T -

As we have gotten to know each other quite well over these past several months, we’ve pondered interesting differences in our makeup.  One example being that your office tends to book your flights home late.  While mine books them early.  I’ve suggested there is a basic optimism present in the plaintiff lawyer that is countered by the relative skepticism of the defense lawyer.    Your email of this afternoon highlights yet another difference.  One that is perhaps a bit more stark.

You see T, there is an elemental and fundamental difference in the way that we look at this litigation process in the context of an ill young woman like HS.  The plaintiff team is dealing not only with pretrial litigation; we are dealing with the humanity of our client’s situation.  We were with her when she recently had three more inches of each leg sawn off.  We care about her deeply and see her not only as a plaintiff, but as a human being who is entitled to be treated with decency and respect.

You do not have a relationship with H and so we do not fault you for not caring about her the way that we do.  However, the defense’s almost single minded pursuit of any hint of a cancer diagnosis, has left those of us on the plaintiff side, feeling absolutely breathlessly – appalled.    Can you step back from your advocacy and see how this looks.  The message that you are transmitting.  At times it appears that you are hopeful that a cancer will indeed be found.

I’m sure this is not true.  But this is the message that you are transmitting by your actions and accusations.

Here are the facts.

HS received a PET scan on November 7.   Dr. H arranged for the PET scan.  We presume that Dr. H has the results.  HS has not been informed of the results.  She has not had her followup appointment with Dr. H.  HS has never seen the PET scan.  We have never seen the PET scan.  We have never been informed of the results.   We have asked the case manager if she can procure it, but she cannot.

I ask that you now step back T.  And look at this situation from a human perspective.  If you went through a medical procedure and were waiting to find out the results.  And the results could potentially be very serious.  Would you like the lawyer for someone whom you are suing, to see those results before you.   More importantly, what right would any human being – lawyer or not – have that would give them the privilege of viewing such utterly personal information before a patient.

Now let’s turn to Dr. C’s deposition taken last week.  As has occurred during each deposition of a plaintiff witness this month, the defense has tried to find out about the PET scan.  Dr. C was discharged as PCP by the plaintiff one year ago.  Her involvement in plaintiff’s care ceased one year ago.  It was improper from MC to attempt to have Dr. C dig through Vancouver clinic records that she did not create or utilize during her care of the plaintiff.  

Since we have not seen, heard, or learned of the PET scan results, we haven’t hidden anything from you.  Regardless, we will continue protect HS’ right to be treated decently, even if we cannot compel your human compassion and kindness.


Medical Illustration:  By Aaron Weholt