The Velvet Hammer

The Velvet Hammer

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

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.

 

 

If at first you don’t succeed…The Tale of Mr. T part 2

Posted in About Nala, About practicing law, About running, About writing, The most obnoxious..., Tips for Attorneys

NalaMrT

The movie gift that just keeps giving – is the showdown between Tom Cruise and Jack Nicholson in A Few Good Men.  That moment on the witness stand when Jack defiantly declares his magnificence.  Gets up to leave.  And Tom says – sit back down.  And Jack has to.  Because he’s in court.

Mr. T, as you may recall , gave a rather similar performance in deposition last month.   And then some.  Because no judge was present.

I returned to my office.  Waited awhile for the transcript.  And during one of my afternoon runs with Nala, came up with a plan.

Mr. T is from Oregon though licensed in Washington.   I decide to bring a motion to compel that is not your typical motion.  Many areas of the law are quite form based.  Not so with tort law.  Too many variables.  It’s fun that we can be creative and not complete paperwork by rote.

The motion asks the Court to put the burden on the defendant insurance company to produce Mr. T for another deposition at their expense and to require the production of his time records and any other missing file records before the lawsuit was brought.  This type of motion requires that I show Mr. T’s conduct to have been evasive in the deposition.  Here are three short examples :

  1. Q Why haven’t you done anything to prepare for today?
  2. LEID: Object to the form. Go ahead.
  3. A Because I’m a fact witness, and I don’t prepare for depositions when I’m a fact witness. You haven’t asked me to prepare for anything, and I’m not under an obligation to prepare anything.
  4. Q Okay. So you are just going by your memory?
  5. A No.
  6. LEID: Object to the form.  Go ahead.
  7. A So if you ask me a question, I’ll do my best to answer it, if I recall it. If you show me a document, I’ll answer to the best of my ability about what the document is and my involvement in it.
  8. Q Do you intentionally not prepare when you’re called as a fact witness?
  9. A I don’t understand your question. I don’t know what you mean by that.

***

  1. Q Is there any mention of Mr. V and November 29 in there?
  2. A Okay, I just read the paragraph. The document speaks for itself.  This paragraph is about Mr. R’s effort to secure a recorded statement.
  3. Q Why didn’t you include Mr. V’s –
  4. A You’re asking me to remember — You’re asking me to speculate as to why that wasn’t put in there in August of 2011. Is that your question?  I have no idea.
  5. Q All right. And then on December 5, you wrote that Mr. S — You can read it if you want.  Why don’t you read it.
  6. A Here’s what I would generally say: This is an exhibit; it speaks for itself.  I don’t have a recollection of this.  I’ve never found it effective to ask someone to discuss a document that’s an exhibit, that they’ve said is an accurate exhibit.  I think it’s an incredible waste of time.   And I don’t really want to sit here for three hours and have you go over documents like this, because you’re wasting time.  I’m not going to elaborate on this because I cannot elaborate on it.  It was four years ago.  The document was produced by my office, okay.
  7. Q What I find to be an incredible waste of time is for me to come down here and hear that you didn’t even look at your file to prepare for your deposition. And then when I show you a document, you don’t even answer the questions because you find that to be a waste of time.  So I think we’re at an impasse as to who is wasting whose time.
  8. LEID: Objection. Is that a question, Counsel?

***

  1. (BY MS. KOEHLER:) Did you not get your own file documents from your own counsel?
  2. A Go ahead and ask your next question.
  3. Q Were you given your file documents before today?
  4. LEID: Object to the form.
  5. A Go ahead and ask another question.
  6. Q That is my question.
  7. A I’m not going to answer that question.
  8. Q On what basis?
  9. A I’m just not going to answer it. You’re welcome to call the judge and have her require me to answer it, if you’d like.

And so, that’s exactly what I did by motion.  And what the Judge Ordered.

The motion is attached here.CompelTMtn

The order is attached here. CompelTOrdr

Photo:  Nala and the reason running helps with thinking things through.

 

 

Argument by iphone

Posted in About practicing law

tissue

Alarm goes off.  Am already conscious.  Tissues surround me.  Am ill.

Have to be in court by 8:45.  Go through the motions.  Get there in time.  Judge S is late.  We are set to argue before a jury trial starts at 9.  They are at the voir dire phase.  The prosecutor and defender are chatting.

Pull out spanking new computer.  It’s awesome.  Open it.  Can’t connect to internet.

Haven’t saved all the documents to the hard drive.  They are all on email or the server.

Try this.  Try that.  Nothing works.  Can’t figure out this blasted new fangled computer and MSFT 8.  Achoo!

Wonder if can do the whole thing by heart.  We are comparing three different orders on competing motions for summary judgment.   I need to see the documents.  Do not panic.  No time for that.

Email John – can you email everything again. He does.

Judge S arrives.  Takes the bench.  Rory is appearing by speaker phone.  I may be sneezing, but in person is always better.

Judge S:  Good morning counsel.

K3:  Good morning your honor.  Before we begin, I’d like to apologize but I can’t figure out how to access my documents for this hearing on my new computer.  So I will be using my iphone.  No disrespect intended.

Judge S:  Smiling.  That’s fine counsel.

And so that’s what happens.  For the next twenty minutes, I  scroll back and forth on the iphone.  Arguing across the bench from her Honor, the clerk, the bailiff, and the speaker phone.

Photo:  self explanatory.

 

 

 

 

 

 

The Office Fitbit Solution

Posted in About Nala, Women

officedog

Anne has started off the new year with a Fitbit.   Her goal – add steps to her sedentary work day.  Tearing herself away from her desk has proven difficult.  Anne always has more work than she can complete.

Enter Nala.  She comes to work most days.  There are many hours spent lying on the floor, chewing an old antler, digging the stuffing out of her bed, and otherwise being bored.  She doesn’t complain though.  Afterwards we typically go for a run.

About three weeks ago, Anne had an aha moment.  She was watching  Nala who as usual, was exercising bad manners and jumping on someone who had come into my office for a visit.  Hmm, Anne thought.  And just like peanut butter and jelly the two souls came together.

Nala now has a new walking pal.  And Anne has found a fun way to add between 1000 and 2000 steps to her new contraption each day.

Photo:  Sunny, 50 degrees, and 3:00 Monday afternoon.

 

The origins of my initials and an updated motion to permit skype testimony at trial

Posted in About me, About practicing law, Forms, Trial Tips for Attorneys

swiss

Pick up mom from Shoreline.  It is 58 degrees out and she is in a faux fur black maxi coat with brass buttons.  She bought it for $25.  Half off at the consignment store.  Brand new from Sears.

Take her to late lunch at Din Tai Fung University Village.  Hour and a half wait.  Meet up with my brother Greg and his wife Laurie.  We say forget it.  Go to Boom Noodle.  Eat lunch.  Not as good as Din Tai Fung but quicker.  Greg and Laurie take Nala for doggie sitting play date.  I drive with mom to the movie theater at The Landing in Renton.  My sister Jenny pulls up.  Out jump her boys Ben and EJ.  We eat popcorn and watch Paddington Bear.  Quite delightful.

Movie ends.  Jenny retrieves the young ones.  Take mom back first to get Nala then back to Shoreline.  It is a bit of a haul.  She talks nonstop.  Her memory has been returning.

MFK:  You know when I was in the Bureau of Mines (she was a chemical engineer), I was third in command in case someone had to push “the” button.

K3:  Really.

MFK:   Yep.  At one point, everyone got a promotion.  I was waiting for mine.  I was seven months pregnant with you.  Boss said – well, you’ve got me over the barrel.  If I give you a promotion (and raise) how do I know you’ll even come back.  I said – if you don’t give me a promotion and a raise I will leave right now.  I wasn’t going to let him get away with treating me like that.  Just because I was a woman and it was 1960. Not to mention the Chinese part.   The next day he gave me a promotion and a raise.

K3:  Smile.  (No response necessary).

MFK:  His name was Ken K__ K___.  That’s when I decided if he could live with those initials then so could you.  (Laughing raucously).    Anyway you’re just K cubed.

K3:  (Thinking, ah so there was a scientific reason beyond all of this).  That’s real nice mom.

MFK:  So the next day he gave me the raise.   I had you.  And then a year later we left for Europe (for your dad’s post-doctoral program in Zurich).

Photo:   Mom (Mary Fung Koehler) and I in Switzerland

Motion to permit Skype testimony at trial:  newMtoallowSkype

 

Nala and my delicious red grapes – a cautionary tale

Posted in About Nala, About practicing law

vet

 

Today Nala almost killed herself.

It is drizzling.  We are running around the neighborhood.   Both of us in our rain gear.  Splish.  Splash. It starts pouring.   Get home.  Wash off the dirt.  Towel her.  Repeat process with myself.

Need to file a brief this morning.  A discovery teleconference is scheduled to start soon.

Hurry.

Grab large bunch of delicious red grapes.  Rinse them.  Wrap in dishtowel.  Place in purse.

Run out the door to office.  Arrive.  Anne is waiting.  Follows me into office.

Close door.  Throw down purse.  Go over final briefing touches.

Two minutes late for teleconference.  Dial number.  Rory and Jennifer are on the phone.  We chit.  We chat.  Write confirming email.

Cristina brings in cupcakes from Morpheys.  This is good because never got to eat breakfast.  Also some samples of cake and frosting that we are to taste for her wedding purposes.

Go to grab grapes.  Want to eat something healthy before sugar rush commences.  Pull dishtowel out of purse.  It is wet.  But empty.

The other night saw the very depressing movie:  Still Alice.  Julianne Moore may win the Oscar.  So went to see it.   Look at towel and think.  Pretty sure washed grapes and put them in towel in purse.  Maybe didn’t.  Maybe did.  Hmmm.  Look at Nala.  She stares blithely past me.   Bear down.  Make eye contact with her.  There’s no doubt.

Google:  dogs and grapes.  https://www.aspca.org/pet-care/virtual-pet-behaviorist/dog-behavior/foods-are-hazardous-dogs

Grapes are toxic for dogs and related to kidney failure.

Call Dr. Clare at Urban Vet.

Receptionist: How many did she eat.  If just a couple she’s fine.

K3:  I think she ate an entire two handed bunch of grapes.

Receptionist:  Let me check with Dr. Clare….can you bring her in right away.

K3:  yes.

Pack her up.  Tail wagging.  Drive down the road.  Get to Urban Vet.  Dr. Clare comes out to get her.  Tells me to go back to office.  Will call when ready to be picked up.  She needs to be given some medicine to make her throw up.

Drive back to office.  Walk in door. Brief has been filed.  Cristina returns.  We eat cupcakes.  Very tasty. Except the almond frosting is yucky.

Phone rings.  They say it worked fast.  She just vomited about 70 grapes.  Three times the level at which they would be toxic.

Cristina drives with me to get her.  Pay enough money to buy 25 entire grape vines fully loaded.

Thank Dr. Clare.  She says if we hadn’t caught it so quickly it would have been a big problem.  There would have been many more medical tests and procedures.  To say the least.   Thank her for being such a good and caring doctor

Return to office.  Attend meeting of an accident reconstructionist with Brad.

While Nala  cruises around.  Happy as can be.

Photo:  Dr. Clare of Urban Vet and Nala

 

 

This is a stickup – give us all his money: the true story of young brain injured John T

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

1131698_IMG_1668.JPG

 

One of the hazards of driving while high, is that you become a very bad driver.  A year ago, Mr. H decided not to take my word for it.  He smoked some pot.  Went for a drive.  Creamed a car.  In the back of the car, right where he t-boned it, sat high school student John T.  And his doggie who was instantly killed.

But this isn’t the story of Mr. H.   Or  of his arrest.  It is the story of the other villain in this case.

To complete his circle of irresponsibility, Mr. H was uninsured.  John was horribly and permanently injured.  Amazingly, the insurance company for the car in which he was riding, decided to make things as right as it could.   It agreed to pay all of the coverage it had on the car.  What a good neighbor.

Enter Swedish Health Services. (You can start booing now).

John’s mom was a nurse at Swedish Medical Center.  Every month this mom paid money for premiums for health insurance through SHS.

SHS started out by doing what it had to do.  It paid his medical bills.  These amounted to hundreds of thousands of dollars.

SHS was told the car insurance company was going to compensate John for his injuries.  SHS said – we want all of it.  Every single last dime.  Fork it over.  Except 20% to be paid to the attorneys for getting it.

SHS cited the legal principle of subrogation.   http://fightsubro.com/  This concept, allows health insurers – if they choose – to stick up the people they insure.  So that’s what they decided to do:

“While we sympathize with Mr. T’s situation, the law requires us to administer the Plan in accordance with its terms.  The Plan provides for the payment of attorneys in the amount of 20% of recovery, but does not authorize a waiver of its subrogation rights.  The Plan will accept the (entire) settlement, less 20% for attorneys fees, as partial satisfaction of its lien.  Please note that this acceptance is not a waiver of the ZPlan’s right to collect the remainder of its subrogation lien int he event additional funds are awarded to Mr. T in connection with this accident.  Please make checks payable to First Choice Health.”

Upon receiving this letter, Anne sent me an email that said this:

“Karen: Please see letter from First Choice in response to our T subro lien reduction request.   This is an ERISA lien and they are _________ (noun).”

How would you fill in that blank.

Stay tuned for part 2 in this ongoing series.

Photo by Seattle Police Department of the t-boned vehicle

 

 

Mr. T – a deposition tale

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

treadmill

 

5:45 am.  Phone beeps.  Count backward down to the minute have to get up to get out on time.  5:56 am get up.

Race through morning ritual.  Clothes put out the night before.  Black crop jeans.  Black t-shirt.  Deconstructed BCBG black and gray striped jacket.  Black doc martens.  2 black bags.  black raincoat.  Slick back hair that used to be black and now in places looks like tinsel.   Grab 2 luna bars, fat sumo orange and honey crisp apple for later.

Walk Nala to her patch of grass and back.  Hop in car.  Drop her at doggie day care.

Drive to airport.  3rd floor full.  5th floor full.  Find a spot on the 6th floor at the far edge.  Type in 6 – 55 on phone to remember spot. Magically am TSA pre-checked so hop through security line.  Get couscous cup from Dish d’lish for lunch and bottle of water.

7:20 Plane is on time and we board.  Eat 1 luna bar.   8:15 get off in Portland.  Go to rental counters – look at phone.  Booked on Budget.  Drat.  Hate Budget in Portland.  Have to take a shuttle.  Email Cristina and Anne whining about Budget.  No other passengers on shuttle.  No wait at rental counter.  Am assigned blue car that is not excellent.   Can’t figure out how to operate windshield wipers.  Start driving.   Apply brakes and car jerks to stop.  Touchy.

Input address and following phone commands to destination of today’s deposition.  Drive about 15 minutes past downtown.   To a vast non-descript office park.  9:35.  Have almost an hour.  Decide still hungry.  Type the word bakery into phone.  Follow commands.  Bakery turns out to be a 7-11.  No thank you.  Type in donut.  Fairly close.  Is in the JoAnn Fabric complex.  Sesame Seed Donuts or something like that.  Never had a sesame donut before.  Don’t try one now.  Get a glazed old fashioned.  Hold door open for elderly man carrying his newspaper.  He’s smiling in anticipation.   Consider this proof of merits of eating deep fried sugar coated dough.

Get back into rental.  Phone rings.  Answer.  It’s my bank.  Need to transfer money from one checking account to the other. Thank them for great customer service. Drive back to office building.  Park.  Open computer.  Transfer the money.  Eat donut.  Wipe sugar off face.  Grab black bags.  Exit blue bomber.  Climb three flights of stairs.  Open glass door.  Ask for Mr. T.

10:20 Follow receptionist down long blank beige hall to windowless conference room.   Say hello to court reporter.  She reminds me of my favorite librarian back in the day. Spectacles.  Carefully coiffed hair.   Is wearing a golden colored hummingbird broach on the lapel of her brown tweed-like  jacket.

10:30 Mr. T arrives along with defense counsel.

Mr. T is a lawyer.  Hired by insurance companies.  Rumor has it that he is quite unpleasant.  Am willing to suspend judgment and give him the benefit of the doubt.

He is wearing strict lawyer garb.  Looks older than his probable age.  Balding, overweight and with a circle beard (goatee connected to a mustache).   The soft spoken, gracious court reporter asks to take his photo (standard practice).  He tells her no.

What a gem.

For the next 6 hours less a 45 minute lunch break (eat couscous and fat sumo), we stay in that room.  Locked together.  Unpleasantly.

His involvement on this case started four years ago.  He is a fact witness.  He has done nothing to prepare for the deposition.  He hasn’t looked at his file.   Which is about 5000 pages worth.   He has for the most part – no  memory independent of what is contained in his file.    So he needs to see the file document in order to answer the question.  When I show him the file document, then he says it doesn’t refresh his memory and that the document speaks for itself.

5:00 approaches.  He says he has to go.  Actually he’s been saying this for awhile now.  Repeatedly leaning over to look at the clock on defense counsel’s computer.  Shifting about in his chair.  Asking the court reporter if she’s taping the proceeding.  So he can count the minutes where I am looking through documents. Acts even more rudely.  If that’s possible.

Say something to him like if you stop whining we can finish more quickly.  He doesn’t like that and jumps up.  Says this is over.  Walks out.  Defense counsel politely asks – how much longer would it take you to finish Karen. Say – gosh was almost done maybe 10 or 15 minutes at most.   He leaves to talk to the witness.  They return. Mr. T says – you have 9 minutes.

Ask some more questions.  Read a colloquy.  Tell Mr. T it is not a question so he doesn’t need to respond.  He looks at me as if am an ant he’d like to crush with his heel.  Defense counsel objects to the colloquy.   Mr. T leaves.  Exchange pleasantries with defense counsel who has been totally pleasant and professional.  Say goodbye to court reporter as she packs up.

Walk down three flights.  Open building door.  It is dark.  Head to car.  Over here.  Wait.  Maybe over there.  Walk around a few minutes and realize.  Wrong parking lot.  Go back into big box building down long beige entry and out the exact other side.  Locate car by clicking key button.  Lights flash.  Get in.  5:30.  Drive in hideous rush hour traffic back to Budget.  Get lost because phone has no idea that Budget is not with the other companies in the terminal.  Call office.  Tell Anne how rude Mr. T was.  She commiserates.   6:20.  Have missed 6:30 flight.  She rebooks me.

Arrive at Budget.  Take shuttle to airport.  Cristina calls.  Tell her how rude Mr. T was.  She commiserates.  Get vegetable salad from take out place and a Lindor milk chocolate ball – the one in a red wrapper  Reach gate.  7:05.  Just in time to board plane departing at 7:30.

Plane delayed.  Eat salad and chocolate.

7:25 Plane arrives.  Board.  7:48 plane takes off.  Eat apple.  Read book on ipad (Fall of Giants by Ken Follett).

8:30 Arrive back in Seattle.  Phone tells me where am parked.  Go to 6th floor.  Get in.  Pay $28 to exit.  Call Steven.  Tell him how rude Mr. T was.  He commiserates.

Drive to doggie daycare.  They retrieve Nala. 9:20  She is  giant fur ball.  They have sprayed and fluffed her with a scent that is supposed to mask the odor of what happens when doggies roll around together for 12 hours.  It isn’t working.

9:30  home.  Read text message from Sol –  sorry you had to deal with Mr. T.  Text back – no problem it’s part of the job description.

Put away load of laundry.  Give Nala some water.  Eat handful of raspberries.

10:15 throw on running gear.  Go downstairs to treadmill.    Run while watching an episode of Game of Thrones.   Volume on high to drown out treadmill noise.   Daenerys Targaryen is struck by her abusive brother and knocked to the ground.  She reaches over to a pillow whereupon lies a magnificent bejeweled barbarian styled necklace.  Swings it back.  Strikes him in the face.  Cuts his cheek.  Calmly furious, warns if he lays hands upon her again, she will have them (the hands) removed.

Channel Daenery to facilitate discarding of pent up Mr. T related aggression.    Run until done.  Call it a day.

Photo:   Where I run when it is too dark outside.

 

 

 

 

 

 

 

 

 

Teaching Voir Dire with Bill Bailey and a little help from Trader Joes

Posted in About practicing law, Teaching, voir dire

snowtable

 

Prologue:

Taught trial advocacy for many years at UW School of Law with dear friend Bill Bailey.  Bill is now a full time professor at the school.  Since teaching without him would not be the same, decided to turn in adjunct badge.  However, today am going to the school to teach voir dire.

After factoring everything that could go wrong with traffic, arrive 30 minutes early.  Make a quick pit stop at  Trader Joes.  Scan the aisles and choose: 1) bag of mandarin oranges; 2) container of cookie butter chocolates; and 3) small bags of mixed nuts and dried fruit.  These are the secret ingredients.

Start class off.  Ask question.  Student answers.  Reward follows.  Chooses chocolate.  Throw one at him and he catches it.  Next person volunteers.  Chooses nuts. Toss it over and miss target.  Someone retrieves it for her.  And so on.  Needless to say, class participation is superb. 

During this event,  Bill is taking notes. 

Here they are:

 

From: Bill Bailey

Date: January 13, 2015 4:49:20 PM PST

To: Trial Advocacy adjunct professors

Subject: The Monday Class Report-Voir Dire Training With Karen Koehler

 

Dear Faculty, In keeping with my New Year’s resolution, I want to fill you in on the Monday class, which was a huge success, with great energy and participation by the students. Karen Koehler is a remarkable trial advocacy teacher who I was most fortunate to be paired with for a number of years here at UW. Her spontaneity, creativity and intuitive grasp make her uniquely suited to help students understand and perform one of the most feared parts of a trial

Karen broke the session into two parts, first talking about trust and communication in the courtroom and “us” (lawyers) versus “them” (jurors). Then we adjourned to the mock courtroom “set” in 138 Gates. The students filled the jury box and the first two center rows of 138. One by one, they took turns asking the panel about attitudes and issues pertinent to the Constantine case.

Prior to adjourning to the courtroom “set,” Karen asked for a show of hands, which class members considered themselves extroverts and which were on the introvert side. It was about evenly split. She went on to say that most lawyers are not the brash extroverts that the public thinks we are.

Then she asked for a show of hands on who was the kind that others confided secrets in during adolescence. About 5 students raised their hands. She asked them why they thought others trusted them. The replies varied. “”I am a good listener.” “I care about people.” “I could be trusted to keep a secret.”  “I am calm and rational.”

Her provocative question that followed was, “If you weren’t one of those people that others trusted then, what are the odds of shifting into that now?” One student had a very good answer to this, “High school was a strange time. I have matured a great deal since then, much more comfortable with myself.”

Karen then focused on the core challenge of voir dire: “How do you get information out of people in a courtroom on who is going to be biased against your clients?” She used the term “lawbotomy” to describe the biggest issue for lawyers. “We learn to speak in measured sentences full of the jargon we learned in law school. This separates us from real people.” Karen laid out the consequence. “It turns voir dire into us versus them. You have to figure out how to be real. You want to be on the side of the jury, not on the other side with the lawyers.”

She made some general remarks on how to approach voir dire successfully. “First impressions are formed quickly. The jury weighs everything coming out of your mouth. You want to set a tone that goes beneath the surface and gets things going. It has to be a dialog, not information collecting. Safe, not judgmental.

Your questions should be based on whatever the last answer from a panel member is, trying to keep it going. If you read questions from a script, you will get scripted answers. This needs to be a human interchange. Make your questions to the panel small, short and simple. Dial down, trying to explore an issue. React with real human expression. But never judge people based on their answers, always thanking them for their candor.

You work the panel like a talk show host, getting them aligned. Deal with issues in groups. “How many agree with that?” “Why?” “Who has an opposite view?”  You don’t want to be seen as just a data collector that is just trying to kick some of them off.

Karen’s view is that for many lawyers, voir dire is a time of stalling and giving empty platitudes, thanking the panel for their service, trying to curry favo. “Jurors want you to get into it. Hit the go button.”

She exhorted the students to be like the “normal, regular people they were before they went to law school.  Act like a real person. Just do it! Get in and be real.” She asked them, “How does a real person stand? What kind of acknowledgement or eye contact do they make? How do they hold their hands. How often do they smile?”

We then got into the voir dire process itself, with each student going about 2 minutes and then getting feedback from all of us. The liability areas touched on in the questioning were all very pertinent to the Constantine case, e.g., How do you feel about bicyclists on city streets? How many of you get irritated when you see them darting in and out of traffic? Who rides a bicycle regularly? How comfortable do you feel in traffic with cars? Who uses their cell phone while driving? How safe do you think this is? Who has ever rented a car in an unfamiliar city? Did it take you time to get used to the rental car? How do you navigate in an unfamiliar city? Who has ever used a crosswalk in downtown Seattle? Do you always look both ways? Are you concerned about being hit when you cross? Who ever has had a near miss as a pedestrian, when a car didn’t see you?” How careful are drivers in stopping for pedestrians? Who has ever motioned a pedestrian across a street when driving? How many of you consider yourselves safe drivers? How did you learn? Who taught you?”

Then we shifted to damages questions. How many of you have gone to college? How many of you changed your majors? How many times? Did anybody take time off during college or afterward? Has anyone ever lost a family member or close friend to trauma? How did that affect you? Did it change your daily life? How do you feel about awarding 4 for loss of life.”

In her feedback, Karen constantly urged the students to be themselves, “Know who you are and what makes you special. That’s what you go with in the courtroom. Be authentic.”
She also reminded them that “the purpose of voir dire is not just to get people off the jury. You are building trust. The trust relationship is the single biggest thing.”

The students were totally engaged in this, It was thrilling to see them put themselves out there for the sake of personal and professional growth. Karen created a climate in the classroom where they felt totally safe to explore the unknown.

Photo:  Nala and I on a picnic table at Lake Wenatchee state park.  Right before we jumped off.

 

Bump Bounce and Roll: Trying to start a trial.

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

spaceneedle

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

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

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

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

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

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

Gaaaaaaaaaaaaah.

Frustrated.  But not surprised.

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

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

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

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

Gaaaaaaaaaaaaah.

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

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

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

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