The Velvet Hammer

The Velvet Hammer

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

Running in the rain – the joy of puddles and a squirrel obsessed dog

Posted in About Nala, About running

nalarain

Am wound up tight.   Aggressive tendencies barely restrained.  Okay, maybe not restrained at all.  In full warrior mode.

The defense lawyers haven’t been too bad lately.  Wish they were bad.  Then could have an outlet for this simmering fury.

Sometimes there are organizational politics involved in being a trial lawyer.  We need to band together to deal with the insurance industry and big corporations.  Even when we are on the same side, people get their feelings hurt.  Or want their way.  Or are unhappy that you are going your way instead of theirs.  Or want you to be quiet.  Or want you to stop fighting for what you think is right – because others don’t agree.  Or are scared that dissension will lead to collapse.

Today is a day filled with these politics.  Would much rather be doing client work.  Would much rather be doing just about anything else.

It is pouring outside.  The wind is knocking all the giant maple leaves off their stems.  Blowing them down the road.  Until they give up – waterlogged.  Unable to float anymore.

Go home.  Put on gear.  Rain coat over gear.  Rain vest on Nala.  Leash.  And we are out the door.

The rain has lessened but is constant.  Shoes squish.  By the time we reach the top of the hill, rain coat is completely soaked.  Am warm.  Toss off hood.  Roll up sleeves.  Cold rain hits skin.

A squirrel runs across our path.  Nala zooms after it.  I am braced for impact.  Saw the squirrel at the same time she did.  Nala’s leash is tied around her torso.  Attached at her chest.  Not neck.  So she bounces back to me.  We keep going.  She keeps looking.  Anticipating the next squirrel sighting.

Up we run.  Past Betty Bowen Park and  Kerry Park.  Wind through the residential roads.   Two stooped Asian women are at their usual haunting place on the East side of the top of the hill.  With bumpy bags and grabbers.  Scouring the ground for fallen chestnuts.

Squish.  Squish. Squish.  Back we run through the parks.  Down the hill.  To home.  Wash down Nala.  Dry her off.  And smile.

Photo:  Nala still wet after her run.

Killed by a drunk driver: sample dramshop settlement letter to a bar’s insurance company

Posted in About practicing law, Tips for Attorneys, Wrongful death

bar scene 4

Drunks in cars kill.  But blame is also shared by the bars that choose to over serve intoxicated customers who get in their cars.

This is the story of three young friends who got in the way of two over served drunks in a car.

Excerpt from settlement demand:

The three friends were enjoying a quiet, laid back evening.  The highlight was to stop by 7-11 and pick up some drinks, chips and candy.  They were planning to eat the snacks while watching Cats & Dogs, a family movie.  They left 7-11 and were headed northbound along the four foot paved shoulder of Shoultes Road.   The group was well to the right of the fog line.  Street lighting provided clear illumination.

AA and JJ were walking on the inside of the shoulder.  SS was perched next to them on a small bike he had borrowed from another friend.  SS was the closest to the travelled portion of the roadway.

One minute they were smiling and chatting. The next they were flying through the air.  The friends had no time to run for cover.  No time to react at all.  The VW had accelerated, swerved and struck them from behind.   The force was so tremendous that their shoes and clothing were ripped from their bodies. 

SS was thrown towards the right shoulder.  JJ was thrown to the left, landing in the center of the roadway.  AA was vaulted up into the windshield and driven farther down the roadway before landing on the right shoulder.  Their bodies came to rest 50 to a 100 feet apart from one another.

Witness PDL was watching the wildly swerving vehicle and at first thought it hit a tree limb.  As her vehicle reached the scene, she saw the scattered bodies and debris.  She began screaming and crying.  Her driver Witness M stopped and jumped out of the car to halt traffic and protect the kids until help arrived.  Witness PDL called 911 and stayed on the phone until aid arrived.

The first 911 call came in at 11:27 pm.  Officer King showed up within one minute of being dispatched.  He ran from one young man to the next.  Trying to determine if anyone was alive.  He  found SS about 20 feet south of the bicycle he had been riding.  SS was unresponsive, unconscious, but alive.  His loved ones were not by his side.  No one kissed him, whispered goodbye, or told him how beloved he was.   Medics tried to resuscitate him to no avail.    He died a few minutes after Officer King first checked on him.  Alone.   His head and upper body rested on the cold pavement.  His legs lay off the side of the road in dirt.  There he lay for over four hours, waiting for the Medical Examiner to arrive.

Text of demand – edited:  SKMBT_C55214101608470

Photo:  Bar surveillance video capture of the drunk having another drink

Lift off for Taos in Sonoma

Posted in About social networking, About writing, Lawyer convention drama, Lawyer seminar travel

taos

Steve Gursten:  I’d like you to consider joining the TAOS group.

K3:  What kind of a group is it.

SG:  Plaintiff lawyers who have become friends and share advice.

K3:  Steve thanks for asking.  Honestly, I belong to enough groups.

SG:  This is unlike any group you belong to.  We are small but geographically diverse.  This is a real personal group where we are friends.

K3:  That’s really nice of you Steve, but due  to my schedule I’m not sure if I have time.

A couple months pass.

Diane Gober:   Hi Karen – Steve and I would like to invite you to attend the TAOS meeting in Sonoma this fall.

K3:  Hi Diane and Steve – Um…That is so sweet of you.  But.. I don’t drink wine.

DG/SG:   No problem there is so much else to do there.  You will love this group.  It is wonderful.  We have such great times together.

K3:  Can you share the list with me.

DG/SG:  Sure here it is.

K3:  (Impressed).  I know a lot of people on your list.  What a great group.  I’m not sure about Sonoma.  It looks like everyone is a couple, I don’t drink wine or play golf, or spa, and am a vegetarian.    Maybe I should wait for the next meeting. 

DG:  Oh of course you’ll fit in.  Not everyone is a couple.  You can sightsee and go on hikes.   I always order vegetarian options.

This goes on for a few more weeks.  DG is optimistically indefatigable. 

K3:  Okay Diane and Steve – I’m coming and will bring my daughter.  Thank you so much for inviting me.

DG/SG:  You will have a great time.

Am then bombarded with menus, venues, directions, options,  notices of whose attending, and loving emails of friends greeting friends.  Diane may be the best party planner I’ve ever known.

A few weeks later:

SG:  I found a great way to introduce you to the group.  I’d like you to speak with me on blogging.

K3:  Don’t want to steal your thunder.  This is your time slot  to speak.  Am content to be the newbie, sit back and watch.

SG:  No I insist.  This will be fun.  As a matter of fact – let’s blog about our talk to Taos on blogging.  My blog is MichiganAutoLaw.com (see the Blog section) 

And before we know it here we are.  On our way to TAOS in Sonoma.

Photo:  Cristina and I on a bumpy prop plane bound for Sana Rosa.  She’s typing volunteer lists for the SCIAW Greenlake Walk & Roll Oct 19.  www.sciaw.org.   I’m typing this blog.

Yakkie the Goose: Direct exam of an eye witness

Posted in About practicing law, direct exam, Wrongful death

3,6,8

 

The defense is bringing in a memory expert from back east.  To say the surviving brother’s memory is not real.

This is an asbestos-mesothelioma trial.  The exposure happened in the 1970s.  The only witnesses who can identify the product are the brother (who was then eight) and the deceased.

We call the brother early.  The plan is to inoculate against the defense by proving his clear memory.  We have to do several other things as well.  Such as establishing enough evidence to overcome a motion for directed verdict.

The jury is solemn.   There is tension in the court.  The witness is nervous at first.  Settles in as soft routine questions surround him.  And then, the moment comes when you can feel the jury turn towards instead of away from our side.  The moment comes – with the Story of Yakkie the Goose.

20      Q. So let’s move up to a year to, let’s say you’re around

21   six years old.  Can you tell us a story about when you were

22   six that really sticks out in your mind?

23      A. Oh, well, we went fishing one time.  We seen some baby

24   geese.  It was (inaudible), I believe.  We wanted — me and

25   Jimmie wanted one of the geese.  So my dad went out there

                           108

 1   and he caught one.  We ended up taking it home, and we had

 2   it as a pet.

 3      Q. Well, now how did you carry the goose — was it a

 4   goose or was it a baby goose?

 5      A. It was a baby.  It was tiny.

 6      Q. Do you remember details about how you even got it

 7   home?

 8      A. Well, put it in the car.  Me and Jimmie — we wanted

 9   to hold it but my mom said no.  You’re not — I think she

10   was scared we were going to squish it.  She held it on her

11   lap on the way home.  It pooped all over her lap, so we kind

12   of found that funny.

13      Q. And you would have been around six?

14      A. I believe so, yes.

15      Q. And tell me about the goose — I think — tell me what

16   happened to the goose?  Tell me about your life with the

17   goose?

18      A. We had him, I believe, at least a year.  He grew up to

19   probably — I don’t know, three foot tall.  Never could fly,

20   though.  He used to chase us around the yard.  He slept in

21   our house.  We would have to keep him on the back porch

22   because of my father and mother, but — he would sleep with

23   us on occasion.  He’d actually play hide and go seek with

24   us.

25      Q. How did the goose play hide and go seek?

                           109

 1      A. Well, he would stick his head under the couch

 2   cushions, and my mom would, you know, say go, hide.  And

 3   then she’d say, go get ‘em, Yakkie, and he would just pull

 4   his head out and scream.  He wouldn’t look for us.  He would

 5   just scream until we came out.

 6      Q. You named the goose?

 7      A. I did not.  Jimmie did.

 8      Q. Yakkie?

 9      A. He got to name it.  Yes, Yakkie.  Because he was

10   always yak, yak, yak.

11      Q. So was Yakkie around by the time of the incident that

12   we’re talking about today?

13      A. No.

14      Q. Okay.  So this would have been before your grandma.

15      A. Yes.

16      Q. So sometimes it seems like you have a fairly clear

17   memory.

18      A. Yes.

 

The full direct exam is attached.  You have to imagine the bantering tone that exists between attorney and witness.  The beautiful  simplicity of the messenger and his message.  And the bemused delighted laughter from the jury.

Transcript:   The goose

Photo:  The girls at ages 8, 6 and 3 (with their dogs Coco and Tucker) still remember hanging out on the front lawn that summer. 

 

 

Here Comes The Dean.

Posted in About social networking, Women

DeanClark

She is a stranger who sends me a handwritten letter after having read something about me.  I email her back and invite her to lunch.  She emails back and accepts.  Two months later…

“Hi!”  She says with her warm smile, walking into my room.  “I love this office.  You have great art.”

I take her over to chat with Paul Whelan.  Tour her through the maze that is our office.  Down to the old racket ball court now turned into a courtroom.  Out into the cool sunshine.  Down and across the street to the Boat Street Café.  Where we spend a delightful hour over our tasty baguette sandwiches.

Dean Annette E. Clark, M.D., J.D.  graduated from SU law (previously UPS law may it rest in peace) four years after me.  She immediately was hired on as a professor.  And now has been elevated to head the institution.  By all rights she could be stuck up and full of herself.  But she isn’t.

Her eyes dance.  She is talking and chewing with me.  She is so cozy to be with that  I have no hesitation admitting a piece of lettuce is stuck in my tooth.  Before I dig it out.

We talk of our children – she has two boys, one who is in law school , the other who is a mechanical engineer.  The hopes for our profession.   Whether I would agree to be an adjunct in trial advocacy at SU Law, now that my long time UW teaching partner Bill Bailey has become a full time professor.  How this blog got started.  Even Facebook.

And honestly the whole time I’m thinking, just how cool she is.

Photo:  By Ryan Monahan our IT guy – in our parking lot before Dean Clark hit the road.

Dear injured (or dead) person – hire me: The shame of being in a profession, where lawyers directly solicit clients.

Posted in Uncategorized

1

Based upon a true story:

Last week, my wife of 35 years was driving to the store and was hit by another car.  The police came to my house to take me to the hospital to see her.  She’s been there ever since.  We don’t think she will make it.

Each day I drive or am driven to the hospital by our children.  I stay there as long as I can.  I just had surgery myself.  So I need to come home to try to rest in between rushing back to be with her.

I have never felt so scared, alone, vulnerable and incredibly sad.  My grief and fear for her is overwhelming.

I manage to walk with a cane out to the mailbox.  There’s a letter from a law firm.  I don’t know them.  It is addressed to my wife.  I open it.  They want to represent her.  The letter comes with forms and a retainer agreement, all neatly organized in a glossy folder.  I close it, slightly stunned.  How do they know what has happened to my darling.

I walk back to the house.  Sit in my chair and gaze at the packet.  I don’t know what to make of it.  I can hardly face what is happening to my wife.  I don’t want to be thinking of lawyers.  How did they find out.  How did they find us.  I feel like my wounds are open for the world to see.  I need to cry in peace.  Not in front of my wife.  Not in front of our children.  Not in front of a lawyer I don’t know.  I want to cry alone.

The next day I go back to the hospital.  When I return home, there is another piece of mail from the law firm.  This time it is a certificate for a free accident report.   I don’t want to see a report.   I don’t want to think of lawyers.  I want to think of my wife.

A few more days pass.  My hope is dwindling that the love of my life will survive this collision.  The law firm keeps sending me more materials.  Even a CD rom.  I am growing angry and upset.  I didn’t respond to the first letter, or the second, or the third or the fourth why do they keep sending me more letters.

For over a decade the American Association for Justice has maintained a code of conduct for members.  The code provides:

  1. No AAJ member shall personally, or through a representative, contact any party, or an aggrieved survivor, in an attempt to solicit a potential client when there has been no request for such contact from the injured party, an aggrieved survivor, or a relative of either, or the injured parties’ union representative.
  2. No AAJ member shall go to the scene of an event which caused injury unless requested to do so by an interested party, an aggrieved survivor, a relative of either, or by an attorney representing an injured party or survivor.
  3. No AAJ member shall initiate a television appearance or initiate a comment to any news media concerning an event causing injury within 10 days of the event unless the member forgoes any financial return from the compensation of those injured or killed, provided , however, that an individual designated by a bar association may initiate such media contact to communicate such position.
  4. No AAJ member shall personally, or through an associate attorney, file a complaint with a specific addendum amount unless required by local rules of court. if such amount is stated, it shall be based upon good faith evaluation of facts which the member can demonstrate.
  5. No AAJ member shall personally, or through a representative, make representations of trial experience or past results of litigation either of which is in any way false or misleading.
  6. No AAJ member shall personally, or through a representative, initiate personal contact with a potential client (who is not a client, former client, relative or close personal friend of the attorney) for the purpose of advising that individual of the possibility of an unrecognized legal claim for damages unless the member forgoes any financial interest in the compensation of the injured party.
  7. No AAJ member shall file or maintain a frivolous suit, issue, or position. However, no AAJ member should refrain from urging or arguing any suit, issue, or position that he believes in good faith to have merit.
  8. The AAJ Board of Governors has condemned attorneys or legal clinics who advertise for clients in personal injury cases and who have no intention of handling the cases themselves, but do so for the sole purpose of brokering the case to other attorneys. Any AAJ member who enters a contract of representation on behalf of a claimant shall, at the time of retention, fully advise the client, in writing, of all relationships with other attorneys who will be involved in the representation, the role each attorney shall play, and the proposed division of fees among them. the client shall also be promptly advised of all changes affecting the representation.
  9. No AAJ member shall knowingly accept a referral from a person, whether an AAJ member or not, who obtained the representation by conduct which this code prohibits.

In Washington, our state bar association rules do not prohibit direct attorney solicitation of clients.  In Washington our trial lawyers association does not have a code of conduct similar to AAJ condemning such conduct. 

In my opinion, direct solicitation of clients by lawyers – is gross.  The few firms who do this – taint the public perception all of us who do not.

Photo:  The five pieces of mail described above.

 

 

 

 

Use a kennel; save your dog’s life

Posted in True life stories, Wrongful death

dog

Am reading the police report on a new case:

T told me he had a dog in the vehicle. I checked and located a brown

lab type dog on the rear passenger floorboard. The dog was not

breathing and I could not feel a heartbeat. I asked SFD E31 to check the

dog too. there did not appear to be any signs of life in the dog.

We don’t leave our children unsecured in cars for the same reasons we shouldn’t let our dogs roam freely.  We may like to cuddle with them. They may be happy as they crane their necks out the window.  But the second that vehicle is violently struck; the dog will go airborne and almost surely die.

Use a crate, or secure your dog with a chest (not neck!) harness clipped into existing seat belt hardware.

Graphic by Duane Hoffman.  Trial exhibit of a seriously injured back seat passenger.  Upon impact, the 80 pound dog was thrown into the front seat.  Her back broke and she and died.

 

 

 

Tips for Attorneys: How to walk out of a mediation

Posted in Uncategorized

stritmediation

Patience is not always a virtue.

I have walked, trounced, and even skipped out of mediations before they’ve officially ended.  In fact, that used to be the norm for me.

About 15 years ago I was in the car, driving back over the bridge when the phone rang.

Larry Levy:  Where are you.

K3:  In the car.

L2: (Incredulous) – you left?!

K3:  Yep.

L2:  What happened.

K3:  You asked me what my goal was (during the last round that I stayed for).  And I told you – to beat rush hour.

L2:  You weren’t serious.

K3:  Apparently I was.

L2:  The defense has increased their offer to X.  They want a counter.  Will you come back.

K3:  My goal is to beat rush hour and so I’m not coming back.  I’ll think about a response and call you.

The negotiations continued for a bit and ultimately mediation failed.  I tried the case to verdict well above the last offer.

Over the years, my tendency to want to leave unfruitful mediations has not abated.  Mediators hate this.  They want you there.  They want the process to continue.  They want to settle the case and add to their reputation of being effective.

But sometimes, the best thing a plaintiff lawyer can do in a mediation – is walk right on out of there.  For example, sometimes the defense is not there to settle the case, but simply to yank your chain.  Other times, the defense lawyer would like to settle the case, but the insurance company doesn’t want to acknowledge the full loss.  Either way – your injured client is disrespected.  There’s no need to prolong the agony.

Here is how to walk out of a mediation after you’ve determined that it is a total waste of time:

  • Make the decision with your client whether or not to leave when the mediator is not in the room
  • Explain to your client, that mediation is not going to be fruitful that day, and they are free to leave.
  • Let them pack up and leave first.
  • Pack up your things.
  • Stay in the room until the mediator returns
  • Be respectful to the mediator and explain that you are open to further discussions when the defense decides to get real
  • If there are no interior windows in the mediation facility, feel free to run out of there.
  • If there are interior windows, put on fresh lipstick, shake your hair out, and sashay out of there, waving at the defense side as you leave.

Photo:  Paul Stritmatter.  Showing off his cool socks.  Right before we walked out of a mediation earlier in the month.

 

 

Official Press Release: Owen v. State – Stevens Pass Tree Fall Case

Posted in About practicing law, About the news, Client heroes

owencar

 

 

This is the official press release relating to the Owen v. State tree fall claim.

 September 5, 2014
**PRESS RELEASE **


Re: Estate of Tim Owen, Estate of Cheryl Owen, Jessica Owen, Jaime Mayer,
Steven Mayer, Jeremy Owen v. State of Washington…

Steven Mayer, Tim Owen, Jaime Mayer, Jeremy Owen, Jessica Owen, Cheryl Owen

The family members who survived the December 21, 2012 tree fall incident on U.S. 2 have settled their claims against the State of Washington for $10 Million.
In the days leading up to the tragedy, a combination of unusual weather events led to a highly dangerous situation in Chelan County. Soil was soft from earlier warmer and wetter weather. This increased the tendency for trees to lean. Heavy snowfall occurred, along with freezing temperatures and light winds. Trees were covered with especially high snow loads.

As a result, in the days before this tragedy, hundreds of trees were breaking and falling. Just three days earlier, on December 18, Chelan County had issued a Declaration of Emergency. The county was taking extraordinary measures to ensure public safety. Local drivers were asked to restrict travel. Even utility workers were restricted from restoring power due to the danger of falling trees. The State DOT did not echo any of these warnings to the general public. The Owen family was travelling from Bothell to Leavenworth. The only warning sign issued to the travelling public on U.S. 2 was “traction tires advised.”

Trees had been falling across U.S. 2 in the vicinity of where the Owen vehicle would be hit. Less than 12 hours before the fatal strike, another large tree fell near the same location. At around 1:30 p.m. the Owen family was almost at milepost 79, when a leaning, snow- and ice-laden 125-foot-tall grand fir tree, snapped and fell upon them.

Tim and Cheryl Owen were killed instantly. Jessie Owen, Jaime Mayer and Steven Mayer were seated in the middle and severely crushed. Jeremy Owen was in the rear. When Jeremy regained consciousness, his first thought was that everyone else had perished.

Later in the day, after the terrible scene was cleared and despite the danger, the State re-opened U.S. 2. That evening and the next day the trees continued to fall. A WSP officer twice requested that DOT close the roads. Each time they said no. Another tree fell within the same milepost as the Owen incident. This time, the tree struck a vehicle carrying four people including one who was pregnant. Only after this second major injury event, did the DOT close U.S. 2.

The State is generally not responsible for healthy trees falling and injuring innocent passersby. In this case, based upon casual inspection the tree did not appear to be rotten. It also was located outside of the required clear zone on the side of the roadway. However, the family claimed that the State should be responsible when it knows of extremely dangerous conditions that prevent its roadways from being reasonably safe for ordinary travel. In those situations, it has a duty to close its roads. This has been done regularly by the State in situations of avalanche or wild fire danger.

The State recognized that in this case, it could be found to have failed its duty to protect motorists by not closing a dangerous roadway. Though it maintained that other forces caused the incident, the State requested that the Owen family hold off on filing a lawsuit. The State instead requested that the parties participate in non-adversarial mediation.

The family was still reeling from the deaths of Tim and Cheryl Owen in addition to surviving their own catastrophic injuries. Despite receiving the best medical care possible, Jessie, Jaime and Steven have been left with major lifelong physical disabilities.

Past medical bills were in the several millions of dollars. Future medical and care expenses were projected to be even greater.

Preparation for the mediation took an entire year. Teresa Wakeen, a professional mediator, was selected to conduct the proceeding. Each side developed and explained their theory of the case. From a legal standpoint, there were no other cases where a governmental entity had been found liable for failing to close a road. The family pursued this case to make a point: it was not okay for WSDOT to leave the state highway open when Chelan County was closing its local roads because of the same dangers. The family wanted to ensure this would not happen again.

Ultimately, during the mediation, the State accepted that it was at risk to be found partially responsible for the incident. The family agreed to compromise their claims and accepted the State’s offer of $10 Million. The settlement money will be used to pay for past medical expenses and provide for the future needs of the survivors.

The family has issued this joint statement:
“From the moment the tree struck our car to this very day, we have been surrounded by friends, relatives, and even strangers who have done their best to help us. We can’t thank all of you enough.
The State acted humanely and compassionately towards us during the entire year we worked on the mediation. There were no accusations. There was no fighting. We were treated with dignity and respect, even though at times we agreed to disagree.
We hope that by financially acknowledging our loss, that the State will be more proactive in protecting the travelling public from known dangers. Temporarily closing a roadway may be an inconvenience. But a short delay is a small price to pay for the life of a loved one.”

The State’s team included executives from WSP, WSDOT and risk management. The team of Assistant Attorney Generals was led in the mediation process by AAG Gary Andrews. The family was represented by Karen Koehler of Stritmatter Kessler Whelan. Also assisting from the firm, were attorneys Ray Kahler, Dan Laurence, Paul Stritmatter and Garth Jones.

Information provided by:
Karen Koehler
206.448.1777
karenk@stritmatter.com

Graphic by Duane Hoffman of Hoffman Design