The Velvet Hammer

The Velvet Hammer

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

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

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


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

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

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

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

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

Transcript from 2014 asbestos wrongful death trial.

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

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

Posted in About Nala, About running


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


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 (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.   I’m typing this blog.

Yakkie the Goose: Direct exam of an eye witness

Posted in About practicing law, direct exam, Wrongful death



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


 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?


 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


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


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


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


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.