The Velvet Hammer

The Velvet Hammer

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

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

Cross exam of the expert – why jab when you can stab.

Posted in About practicing law, cross examAdd category, Drop Dead Diva, Trial Tips for Attorneys

shellie

 

Prologue:

Shellie:  I’m addicted to Drop Dead Diva.  You were right.

K3:  I know – isn’t it entertaining.

Shellie:  Who would have thought.

K3:  It is such a ludicrous concept, but executed so brilliantly.

Shellie:  I love how she flicks her hair over her shoulder when she scores a point.

K3:  You get the case in the morning and try it in the afternoon.

Shellie:   So entertaining.

K3:  I love how it just takes a few sentences to shred a witness in cross exam.    In fact, she has inspired me to change the way I do cross.  Instead of pecking at the expert, now I get right to it.  While being completely sweet and charming at the same time of course. 

Case study:

Am co-counseling on an asbestos case handling damages.  The defense is presenting its economic expert.  Typically not a real jazzy point in trial.  Am listening to the attorney qualify the witness.  Have never encountered this witness before.   Know pretty much nothing about him.  Here is the beginning of direct.  I’ve highlighted the words that catch my attention:

82
16                   DIRECT EXAMINATION
17   BY MR. WOOD:
18       Q.   Good afternoon.
19       A.   Good afternoon.
20       Q.   State your name and address.
21       A.   Mark Newton.  And my address here in Seattle
22   is 1601 Fifth Avenue, Seattle 98101.
23       Q.   And why are you here?
24       A.   I’m here to testify regarding the economic
25   damages of the plaintiffs in this case.
83
1       Q.   Could you give me a brief summary of your
2   educational background?
3       A.   Well, I went to college for one quarter at UC
4   Santa Barbara back in 1970.  And then I transferred to
5   UCLA later that year.  And then graduated with a
6   degree in economics in 1974.  And that’s basically it.
7   So I have a degree in economics.
8               In terms of education after that, I did
9   that to take some additional accounting courses after
10   graduating to qualify to sit at the CPA exam.
11       Q.   Okay.  And you are presently licensed as a
12   CPA in the state of Washington, is that correct?
13       A.   Yes.
14       Q.   Okay.  Why don’t you give me a brief overview
15   of your professional background?
16       A.   Sure.  Yeah.  Well, I have worked for this
17   company HSNO.  I began in that — in those initial –
18   it wasn’t that when I started.  It was accounting
19   under the name of the founder of the firm back then.
20   Anyway so I have worked technically for the same
21   company since 1974.  Since I graduated from UCLA.  And
22   so generally my work has been in forensic accounting
23   and economics.  And I became a CPA.
24               I do a lot of work in cases like this,
25   where we are talking about economic damage on what I
84
1   would call personal economic cases.  I personally do
2   wrongful death.  We also do a significant amount of
3   work and other commercial types of disputes in courts.
4   So contract disputes.  Other damages.  Unfair business
5   practices, wherever we are evaluating the effects of
6   business from some alleged action.  And in terms –
7   basically in terms of property damage.  And then I
8   also do quite a large cases involving (inaudible)
9   cases, where somebody is concerned that someone who is
10   managing a business, for instance, may have been
11   misusing the assets of the business.  So we get
12   involved in tracing that kind of work.
13               And then the last category, generally
14   speaking is we do a lot of work on insurance claims.
15   So these would be fires, floods, hurricanes, things of
16   that nature.  And we help determine how much –
17   usually, usually business interruption type lawsuits
18   would be paid under an insurance policy.
19       Q.   And you may have said this and I missed it,
20   but what does HSNO stand for?
21       A.   Well, Hagen, Streiff, Newton & Oshiro.
22       Q.   And that’s the name of the company you are
23   working at?
24       A.   Yes.
25       Q.   And have you ever taught any courses?
85
1       A.   Well, I have taught — in essence, yes.  I
2   have taught a lot of classes over the years, usually
3   in the context of seminars at conferences.  So usually
4   professional organizations.  And I address certain
5   topics in those cases, yes.
6       Q.   And I think you mentioned you have been
7   qualified to testify as an expert in courts of law
8   before, is that correct?
9       A.   Yes, I have.
10       Q.   Which courts?
11       A.   Well, primarily — actually this was the
12   first chance I have had to testify in the state of
13   Washington.  But I testified very often in California.
14   I started off my career in California and I have been
15   here for about 9 years.  And just hadn’t had this
16   opportunity for that time.  But I testified at scores
17   of times in California.  Testified in federal court
18   cases in Nevada, Ohio.  Where else have I testified
19   at?  I have testified before the International Trade
20   Commissioner in the late ’80s.  I even testified in a
21   case in Seoul, Korea.
22       Q.   And you have been retained on occasion for –
23   as an expert for plaintiffs in personal injury
24   lawsuits, is that true?
25       A.   Yes.
86
1       Q.   But when it comes to asbestos lawsuits have
2   you been retained by plaintiff/defendants?
3       A.   Always on the defense on asbestos cases we
4   have just — over the years it’s evolved where we work
5   for only the defendants.
6       Q.   What’s the hourly rate you charge for your
7   testimony?
8       A.   For my testimony it’s $450 per hour.
9       Q.   Okay.  And could I ask you that when you give
10   your opinions for me here today, that you do so with a
11   reasonable degree of scientific certainty?
12       A.   Yes.
13       Q.   And you agree that you will give me opinions
14   that are more likely than not true?
15       A.   Yes.

 

The expert is very professional looking.  Wearing a gorgeous tailored suit that puts mine to shame.  He is poised, confident and pleased with how fluidly the well scripted direct is going.

Skip now past 20 more pages of testimony and the laying down of his opinions.

Time for a Drop Dead Diva moment.  I summon the persona of Drop Dead Diva and approach the witness.  Let’s begin by breaking all cross examination rules and leading off with an open ended question.

108
13                    CROSS EXAMINATION
14   BY MS. KOEHLER:
15       Q.   Can you — sorry, can you tell me your degree
16   in economics, what was your degree?
17       A.   It’s a Bachelor of Arts degree in economics.
18       Q.   So when counsel asked you to testify within a
19   degree of scientific certainty, you are not capable of
20   doing that, are you?
21       A.   Well –
22       Q.   You are not a scientist?
23       A.   Well, I wouldn’t call myself a scientist, but
24   I would call myself a forensic economist.
25       Q.   So let me repeat my question.  Counsel asked
109
1   you if all your opinions were based upon a scientific
2   certainty, and you are unable to testify to that
3   level, am I correct?
4       A.   I don’t recall if that was the exact question
5   I was asked or not.  But I think in terms of what,
6   what I –
7       Q.   I just asked you a very specific question.
8       A.   Okay.  I don’t recall if that was the exact
9   question and answer.
10       Q.   Assume that that was the exact question that
11   was asked to you.  Did you tell this jury that  all
12   your opinions are made within a — a degree of
13   scientific certainty?  Assume that question was made
14   to you and you said yes.  Is that an incorrect
15   statement of your capacity to give an opinion to this
16   jury?
17       A.   If under your hypothetical that was the
18   question asked and that was the way I answered it,
19   yes.  I don’t think I could answer with certainty on
20   what more or less probable.  And I thought that was my
21   answer, but I apologize (inaudible).

Turn, sashay off and flick my hair over my shoulder…before resuming the rest of cross  which includes of course a few more reminders of how well he was stabbed right out of the gate.

113
17   Q.   And is that what you are saying to this jury
18   is that the lost wages and lost earning potential are
19   the same?
20       A.   In this case, yes.
21       Q.   Okay.  Well, that’s an assumption that you
22   are making.
23       A.   I don’t believe it’s an assumption.  It’s a
24   conclusion that is my opinion that that would be the
25   case in this case.
114
1       Q.   And your opinion is on the basis of what
2   a — to what — what is the basis of your opinion?
3   What is the — what is the expertise of your opinion
4   so that we know what to call it?  Do you agree that
5   it’s not to a scientific level.  What it is?                          [Eyes wide and shrug shoulders to the jury]
6               MR. WOOD:  Objection, vague.
7       A.   Well –
8               THE COURT:  Well, if you understand it,
9   you can answer it.
10       A.   Yes.  I think the — when you threw in the
11   scientific reference to the scientific method, I’m not
12   sure what you mean in that phrase.
13       Q.   (By Ms. Koehler) Well, I didn’t come up with
14   that, your counsel did.
15               THE COURT:  Okay.  You know, you need a
16   question, okay.
17               MS. KOEHLER:  Okay.  I’m sorry, Your
18   Honor.
19       Q.   (By Ms. Koehler) The question is:  What
20   degree of — what is your testimony, what is your
21   opinion, what is it called?  Is this just a more
22   probable than not opinion, or do you have some kind of
23   way to do your opinion that you would like us to
24   consider?
25       A.   Well, it’s my — I’m sorry.
115
1               MR. WOOD:  Objection, vague.
2               THE COURT:  Do you feel you can answer the
3   question?
4               THE WITNESS:  I think I can.
5               THE COURT:  Go ahead.
6       A.   Well, I think it’s the basic premise that I
7   am using is more probable than not.

Photo:  Framed picture of me with my best friend in the whole world Shellie on her wedding day.   Sitting in my bookcase .

Trial diary excerpt: The case of the chunk

Posted in About practicing law, trial diary excerpts, voir dire

Chunk Weigh 2

This trial diary excerpt is from 2011 King County Superior Court.

Trial day 1

Am not smiling as leave the courtroom.  Judge Hill has just chewed me out.  All my energy is turning inward.  Breathe in.  Breath out.  Walk down the stairs to the car.  And leave.

It starts off as a promising day.  The sky is blue.  There are plenty of jurors available downstairs.  The first round is brought up.  19 are excused for hardship leaving 41.  Just in case, a second group of 20 is brought up.  12 of them are excused.  People are struggling to make ends meet.  A somber pall is cast over the courtroom.  Too many people have to publicly humiliate themselves explaining they are scraping by pay check to pay check. 

The judge reads the neutral statement:

Plaintiff claims, on June 18, 2008, he was driving his truck on I-5.  As he passed under the Holgate overpass, someone dropped a large chunk of concrete onto the freeway.  The concrete broke through Mr. Clark’s windshield and struck his right shoulder.  Mr. Clark claims the incident was foreseeable because of the history of the overpass and its location next to the area known as “The Jungle.”  He claims the Defendant State of Washington should have installed protective screening on the overpass and that its failure to do so was a cause of his injury.  Defendant State of Washington denies Mr. Clark’s claims.  It claims that the bridge was properly built according to applicable standards, that there was no need for screening and the only cause of injury was due to the intentional conduct of a third party. 

The jury doesn’t blink.  But I can feel backs stiffening.  The change in aura is palpable.

Judge H then asks the jury two pages of questions that we had hoped to issue via a written questionnaire but couldn’t due to – no time.  She does not ask a single followup question.  I actually approach the bench and ask if she will follow up with the two people who said they had “concerns” as to whether they could be fair jurors in the case.  She declines and tells me I can.

So I do.

Have never jumped out of an airplane.  But can imagine that feeling of catapulting oneself over the edge into a zone of pure fear.  Because that is what voir dire feels like today.  There’s no dipping a toe in first to gage the temperature.  No wiggling around the edges to find a cozy place to begin.  Have to launch right into the guts of the beast.

The first juror who said she couldn’t be fair turns out to be a former attorney general so she is excused.  A no brainer.  The second juror is number 70 something.  Way in the back.  As soon as I read his bio and see him walk in the room I mark his name (on my chart) with red for danger.  Hate it when those predictions turn out true.

He is a former cop.  For something like 43 years.  Die Hard in the flesh.   He may have retired a year ago but he is on a mission.  Nothing is going to stand in his way.  So when I ask him why he raised his hand as not being able to be fair, he spends the next two minutes explaining how he knows the State is wonderful, the City is wonderful, the officers do a perfect job, the area in question has been handled as best as can be, the bridge in question was built according to standards and there is no way anyone is responsible other than the crazy idiot who threw the rock off the overpass.  Judge H then asks the defense if they have any question, they ask one – and he reiterates his platform with even more vehemence.  I ask that he be excused for cause, she asks him a question which results in him restating his platform before she gently cuts him off and excuses him.

After he leaves, a juror raises his hand to speak.  Says he used to be a deputy knows that area well.  He can totally see how someone could throw a rock off it and why it should have a protective screen.  He is trying to say more but  Judge H cuts him off.  Am grateful for him.  We move on.

It is ugly.  As ugly as I’ve seen.    Another juror says bad people do bad things, that doesn’t make the government responsible.  If they had to screen this bridge, that would mean they would need to screen all of them.   That would come out of the pockets of the taxpayers who are us.  This case is “silly.”  80 percent or more of the jurors generally agree with her.  I ask how many have a different viewpoint and 8 timidly raise their numbers.  

How do you move forward when the jurors are condemning the case before it has even started.  Once you launch you keep going.  That’s how.  With all the positive energy you can muster.

There is a nucleus of six jurors who have said they aren’t just skeptical.  They are so skeptical that they don’t think they can be fair.  We are working to help them get excused for cause.  Right at the verge and

What?  No warning and we’re taking a break at 3:30 and court is over for the day at 4:00.

Am disoriented.  Want to rush up to the judge and yell wait and stop everyone from leaving the courtroom.   But don’t of course.

After the jury leaves approach the bench with the AGs and tell the judge – need to finish challenging that group for cause.

And that’s when she scolds me.

She’s mad at me and I didn’t even know.  Focused on the jury, she’s to my back and haven’t paid her much attention for the past half hour.  Well, am paying attention now.

She is talking and I’m still disoriented.  What is she saying.  Am thinking – need to finish the challenges for cause and she’s saying it’s the state’s turn now.  Waaaaaaaah.  But your honor, I was in the middle of challenging the jurors for cause.

She says that if I was to try to challenge them now, would fall short because haven’t asked them proper questions.    I “asked for it” by having them  judge the case before they heard any facts.  It is my fault they are taking these positions.  Should have asked -  if they are given a legal instruction will they follow that despite their beliefs.   Haven’t used those words.

Head is loopy. In a nanosecond am thinking – have we been in the same courtroom.   Am I losing my mind.  Have I done this all wrong.  Is it my fault that the jurors are speaking about their strong biases, calling this case silly and saying they can’t be fair, they aren’t the right jurors for this case.   Have I wrecked the process.  Did I not lay foundation to challenge for cause.  My head clicks back on right.  No. No. No.

Should probably bite my tongue, but am fighting to seat a decent jury for our client.   Say as respectfully as can – your Honor, the tone of the jury’s discussion was set when the cop got up and made his speech at the very beginning. This all had to be addressed at that point.   She doesn’t disagree.  Instead she says – you should have cut him off.

Wow.

I suppose she’s right.  If I didn’t want to hear the bad stuff and didn’t want the jury to hear the bad stuff I should have cut him off.   But that’s the exact opposite of how I choose to do voir dire.

Ultimately she decides we will end the day after the jury comes back from break.  But I am allowed to challenge them for cause in the morning before the state begins.

And so, I march out of the courtroom.  Focused.  Determined.  Scolded but not repentant.

Endless love

Posted in Tom Chambers

dolphins

Judy Chambers has passed away.  Eight months after Tom.

In September we received a picture postcard from their final scuba diving trip.  He later posted it to his blog:

http://tomchambers.com/a-picture-postcard-from-maui/

After reading it (and recovering my equilibrium) I sent Tom an email.  The interchange is a reminder to all of us (even the busiest of us trial lawyers) - of the importance of love.


———- Original Message ———-
From: Karen Koehler <karenk@stritmatter.com>
To: ‘tom chambers’ <speed4tom@netzero.net>
Subject: RE: A picture postcard
Date: Fri, 27 Sep 2013 03:15:05 +0000

Dear Tom – Nice way to save the tear jerker for the end.     I didn’t know that added to your accomplishments, was part-time jewelry designer.    The glimpse of these later years of life with Judy that you have shared, give me pause to reflect that maybe I shouldn’t stay single the rest of my life – perfectly content as I am to always get my own way and do whatever I want!  Your children are blessed to be able to witness such devotion and true love.  Thank you for sharing with me,

Aloha Tom,

karen

From: tom chambers [mailto:speed4tom@netzero.net]
Sent: Thursday, September 26, 2013 8:53 PM
To: Karen Koehler
Subject: RE: A picture postcard

I feel very fortunate having Judy and my children so close right now.  It would be a miserable life if I were alone.  But I am just damn lucky to have married one of the nicest creatures ever to have drawn breath on this planet.  That we both took up scuba diving was also a stroke of luck.  At our age, we have a sport in common that has taken us to warm sandy beaches around the world.

Your daughters will always be close to you but they will have their own lives to live.  So take your time.  Choose a mate based not just upon passion but with whom you share common interest and activities and you can be best friends with for the rest of your life.  By the way, that means you must develop some activities other than trying cases.  Having a balanced life is not easy for a trial lawyer.  You must set you mind to do it and follow through.  I may be one of the few people to be able to influence you.  It is good that you have noticed how important relationships are to enjoying a rich life.

tom

Photo by Tom Chambers:    ”I am proud of the above pendant because I designed (or at least had the concept for) this pendant Judy wears more often than not.  The black pearl represents the world and the two dolphins represent Tom and Judy.  Judy is the dolphin in front in white gold and Tom is the dolphin in back in yellow gold.  To me it represents the joy, like two playful dolphins, we have shared scuba diving which has often taken us to exotic places.”

More is not always better: minimizing the histrionic overuse of adjectives

Posted in About practicing law, About writing, Tips for Attorneys, Tips for Young Attorneys

melodrama

“Atticus told me to delete the adjectives and I’d have the facts.” – Chapter 7 of To Kill a Mockingbird

Her right leg was catastrophically smashed, causing excruciating and unrelenting pain.  The limb felt like it was being stabbed a million times by a  sharp knife.  The sharp burning pain became absolutely unbearable to the point where she was forced to take vicodin.  She was reluctant to take this narcotic drug, but her overwhelming distress left her no better option.  Even so, when she finally managed to choke down the potentially addictive drug, it didn’t help alleviate her suffering.  She was unable to get a restful, healing and nurturing sleep, because every time she turned over or made any movement, her severely injured and damaged leg would go into spasms of terrible pain that strongly radiated throughout her fatigued and shaking body.  Fortunately, no bones were broken. It took almost six weeks before her badly stretched and tortured ligaments recovered enough for her to begin running again.

We learned the power of adjectives starting in about the second grade.  These “describing words” add color to our communication .

In the legal profession, lawyers tend to be very good with language.  We enjoy flexing our grammatical skills.   Adjectives are high on the list of words that we like to use.  So we use a lot of them.

But in our quest to persuade with adjectives, we run the risk of appearing overly melodramatic.  The melody and rhythm of what we are saying, is drowned out by disharmony.  The audience has difficulty finding its way through our tune.  And eventually resorts to ignoring the babble.   This process in turn subverts our perceived credibility with both judges and juries.

Here are some thoughts on using adjectives:

  • Less is (usually) more
  • Save strong ones for moments where emphasis is actually needed
  • Don’t use the same one repeatedly within a short time span
  • Don’t rely upon them to explain what is going on
  • Avoid stringing them together
  • Don’t assume they are helping to make your point
  • Stop thinking that you can manipulate the audience’s emotions through the use of adjectives
  • Practice self restraint in employing them
  • Try to hear (from others’ perspectives) what you are saying
  • Try to read (from others’ perspectives) what you are writing
  • Respect the delicacy involved in using them
  • Make sure they have the right tenor

Photo:  By Alysha – My melodramatic mother in her pink piggy slippers and slogan shirt. 

 

 

 

 

 

Where oh Where have you been…!

Posted in About me

refresh

K:  Catherine – I just tried to log into the blog and it won’t let me.

C:  I’ll figure it out.

K:  Thanks

C:  Gently prodding:  you haven’t written anything for a while, I’ve been checking the stats.

K:  Yeah.

C:  So glad you’re going to write again.

K:  If I can get into the blog.

A couple more days pass.  Glitch is fixed.  Still haven’t written.  Don’t feel like it.  It’s summer in Seattle.  Enough said.

Photo:  Taken by Cristina Greig on our way back down the Falls River hiking trail in Skamania, WA.