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 dishonor of gaming/buying a reputation

Posted in About social networking, lawyer advertising

AIOPIA

There are a lot of lawyers in America.

Lots and lots.

With the demise of the telphone book, most lawyers now have websites.  Growing numbers use social media. A few pay for TV and radio ads.  And thankfully only a few (grossly) advertise on buses, cabs and billboards.

In days gone by, lawyers belonged to Martindale Hubbell.  A formal widely respected peer vetting system was involved where lawyers were rated as Average, Good, Very Good and ultimately Best.  Actually this system is still in place but appears to be an endangered species.

Then came Super Lawyers.  First as a regular magazine.  Now a once a year publication devoted to promoting lawyers with an associated website.  It is primarily a popularity contest.  But to the extent that lawyers are voting for those whom they know and respect, it is not such a bad thing.  Though some of the cronyism can be annoying.

Enter the new lawyer advertising venues.  Avvo.com tops the list.  Oftentimes, an Avvo profile ranks higher on Google than an attorney’s own website.  Started by attorney Mark Britton, Avvo uses a rating system that includes objective factors like date of graduation, bar activities, bar troubles.  The system is sometimes criticized for its ability to be gamed by those who put forth the effort and expense to fluff up their ranking.  I’ve found lawyers who have only practiced a few years who have higher ranking numbers  than well known excellent longstanding lawyers.  Despite its flaws, Avvo does have a certain level of rigor that puts it at the head of the marketing pack.  Plus it does not try to pretend that it is something that it isn’t.

Dialing down to my specific profession, personal injury lawyers are very concerned about attracting potential clients.  One of the ways that an attorney can bolster their resume, is by the addition of memberships in socieities and awards.  The public is impressed by those sorts of things.  And sometimes they should be.

Any personal injury lawyer who is a real personal injury lawyer, will belong to a state or national trial lawyer organization.  The national organization is AAJ (American Association for Justice formerly known as ATLA - Association of Trial Lawyers of America).  The state organizations affiliated with AAJ are all trial lawyer associations though some of their names have been changed to match the ATLA to AAJ transition.  In Washington State, we are the Washington State Association for Justice formerly known as Washington State Trial Lawyer Association.  These are legitimate organizations made up of peers and run as bona fide nonprofits.  The common mission is to advocate on behalf of injured people in the courts and legislatures.  When these organizations give out awards, there are actual legitimate peer vetting processes in place.  The awards are covetted, treasured and have meaning.

There are other trial organizations that are real.  Such as the invitation only American Board of Trial Advocates (ABOTA) which is a collection of experienced plaintiff and defense civil lawyers who have vowed to uphold the right to jury trial.  And Public Justice  which fights cases of broad public import and whose membership overlaps with AAJ.

And then there are trial attorney organizations that are really marketing organizations.  You are invited to be a member.  Pay a fee.  And then get to put a sticker on your website saying that you are great, when in fact you did nothing other than pay the fee.  These organizations  make money catering to this hunger for accollades.

Today I received an invitation from AIOPIA.  American Institute of Personal Injury Attorneys.  I went to their website to see who they were and found no evidence of  humankind.  Just the use of the royal “we”: “The American Institute of Personal Injury Attorneys is an impartial third-party attorney rating service recognizing excellence of fellow practitioners in the field. We compile an exclusive list of the “10 Best” Attorneys for each State…”

I  get the award if I fill out the form and pay them $275.00.  Which leads me to Webster’s dictionary.    Award: something (such as a prize) that is given to someone or something for being excellent or for doing something that is admired

Buying an award is an oxymoron.

Maybe AIOPIA is seeking to compete with Avvo.  Maybe it is simply a Buy a Reputation organization.  Don’t know which.

But this is what I do know.  The only real plaintiff lawyer organizations are AAJ, the State TLAs, and Public Justice.

Photo:  My 10 best nomination from AIOPIA before it hit the recycle bin.

 

 

And on the tenth day, the Court declared a mistrial…

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

 cows

Tomorrow we were supposed to be giving closing arguments.

Instead, today the Court sent everyone home.

Can’t write about what exactly happened.  This case is going to be tried again.

But can tell you what it’s like to have a Judge say they’re granting a defense motion for mistrial.

This is the third time I’ve had the experience.

The first time , it was because I told the jury in opening statement, that we were in court because the defendant filed a jury demand.  The defense lawyer and the judge were both former criminal prosecutors.  The defense lawyer argued my comments violated his client’s due process rights because he had a constitutional right to a jury.  The judge agreed, over my sputtering protests that this was a civil case.  This is what I learned from that experience:  even if a judge is completely wrong, it doesn’t matter.  Once they announce a mistrial and send the jury home, there’s nothing you can say or do to change the fact that the trial will need to start all up again.

The second time, it was because I was able to excuse so many jurors for cause.  There were not enough left to empanel a jury.  That was more interesting than anything.  Sure we were inconvenienced, but the actual taking of testimony hadn’t happened yet. 

This third time stands apart  because it was done virtually at the close of the case, after the defense had rested.

Here is what happens to a plaintiff lawyer when a judge grants a defense motion for mistrial:

  • Body tenses, bracing in case the judge actually agrees with the defense.
  • Initially hope the words out of the judge’s mouth are philosophical meanderings that will eventually come round to the concept of denying the motion.
  • Eventually lose that hope.
  • Hear the order without blinking, grimacing, or giving any cue of being upset.
  • Become inwardly upset.
  • Think about the client having to go through this all over again.
  • Think about how the jurors are going to feel when they get the phone call not to return.
  • Try to understand the court’s ruling, then realize there’s nothing to understand because it is over and done.
  • Think of all the reasons why the judge shouldn’t do this.
  • Look at the defense lawyers who are not making eye contact.
  • Consider the defense lawyers getting paid for trying a case that they are going to try all over again (and bill for all over again).   Am not saying defense lawyers who get paid by the hour have an incentive to ask for a mistrial at the end of a case.  Am not saying that…
  • Unplug computer, start rolling up cords, put projector in case, all while the judge is still talking about some type of logistical issue.  Have temporarily lost the ability to hear what the judge is saying.  Good thing co-counsel is paying attention.
  • Hear the Judge say they will give the jurors our contact info so they can talk to us if we wish.  We wish.
  • Email office announcing the mistrial and ask for Mike to come pick up the big screen.
  • Begin setting up appointments on other cases  to fill tomorrow now that will not be in trial.
  • Temporarily ignore the questions from law firm asking what happened.
  • Listen to tummy rumble due to spending the lunch hour researching legal grounds for mistrial in the law library
  • Decide that being upset won’t help anything.
  • Analyze feelings and decide more  resigned and irritated than actually mad.
  • Channel irritation, pick up Nala at doggie day care and get a salad at Whole Foods.
  • Think about eating salad, but instead  invite co-counsel over to the house to unwind.
  • Which is nice.
  • After she leaves for airport, eat salad which is delicious.
  • Go for run with Nala that includes a lot of wind, the sun going down, and the slightest amount of drizzle at the very end.
  • Make popcorn and watch yesterday’s episode of The Good Wife on Amazon.  It’s not the same without Will. 
  • Watch an episode of Drop Dead Diva. Decide it’s also past its prime.
  • Begin to write blog
  • See email come in from one of the jurors.  Asking what happened.

Photo:  The Court’s cow collection on the shelf behind us.

Some defense lawyers can’t be friends too…

Posted in About practicing law, About social networking, mentoring

formerfriend

Last week something unpleasant happened.    I lost a friend.  Not a great one.  But a friend nonetheless.   I met him when he was still a law student and was one of his mentors.  He clerked for our firm.   Then a bit later he worked with us for a year.  He stayed in our building after that, working for another lawyer who was renting an office from us.  We kept in touch.   His boss moved his office.  And we wished them well.  A bit later,  I heard  he had quit and decided to take a job with a defense firm.  No shame in that.  You gotta do what you gotta do.  Especially when you have student loans and the economy isn’t that great.  Plus being a defense lawyer might be the opposite of what I do now, but I used to be one.  And my best friend in the whole wide world is one.  So am not prejudiced against defense lawyers.    Over the next year, heard some unflattering comments about how he was acting towards people he used to be colleagues with.  Figured he was probably trying to prove himself tough in his new gig.    Last summer ran into him and invited him to grab lunch one day.  We walked up to Tup Tim Thai and had a nice time.   My first experience with him as defense lawyer on a case was last week. I was in trial (still am) on another case.  Time does not stand still on other cases just because you are in trial.  He was covering for a lawyer I had been dealing with, who had gone on vacation.  John had emailed to confirm that a deposition would not be going forward because we had moved for a protective order.  Plus I had a conflict since I would still be in trial.   He sent an email telling us essentially – too bad.  Not only were they going forward with the deposition, but if we did not appear, he would “seek terms for the failure to appear to a properly noted deposition.”   This threat was made without ever having spoken to me about this case.     Many years ago – mainly when I was constantly fighting Allstate - I would ask the court for terms.  In fact, the beautiful painting above my desk was bought with sanction money I was awarded by a Judge against Allstate.  Back in the day when Glenn Phillips used to work for them.    Maybe I’ve mellowed with age … but I rarely ask for terms.  [Note:  there is a difference between requesting terms and threatening someone with the seeking of terms.] I save them for when someone’s been really bad.  Otherwise, asking for terms isn’t very nice.   Courts rarely grant them.  Plus you end up ticking off the other side.   His was a silly threat.  There was after all, a pending motion regarding the deposition.  Plus I was in trial and had a direct conflict.  There wasn’t any basis to actually haul me before a Federal Judge who would then punish me.   Still, it was a threat.  From someone with whom I’d had a friendship for several years.  so, I unilaterally broke up with him online.  Have to say, it was a swift and easy process.  First I unfriended him.  Then I went on a twitter rant.  Here are some of them:
  • As I was reading his obnoxious email, I felt a PING in my heart. It was the string of our friendship breaking.
  • And so I did what any modern American would do. I unfriended him. Instantly on Facebook
  • This is the first time, I’ve ever ended a friendship emotionally and then confirmed by the delete key. It is somehow affirming.

Photo:  Me and the former friend back when he used to work for my lawfirm.

Ellie – the courthouse dog

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

 Ellie

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

Ellie – time to wake up, she says.

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

Ellie…

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

Come on Ellie we need to get going…

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

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

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

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

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

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

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

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

Stroll out of there.

Back in the elevator.

Back to the prosecutor’s office.

Lie down under Paige’s desk.

Find my way back to that sandy beach.

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

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

Posted in About practicing law, Defense medical exams

dme

 

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

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

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

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

The latest dumbest antic involves a defense neuropsychologist.

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

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

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

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

Posted in About practicing law, Forms, Tips for Attorneys

24A

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

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

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

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

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

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

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

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

Photo:  Trial Exhibit from the case

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

Posted in About practicing law, Tips for Attorneys

broken

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

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

Here is the sequence of what happens:

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

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

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

4.  Defense lawyer files a motion to compel.

5.  Plaintiff lawyer responds.

6.  Defense files reply brief.

7.  Court rules on the motion

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

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

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

 

Paul Luvera’s special timer

Posted in About practicing law, about public speaking, mentoring

luvera

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

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

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

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

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

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

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

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

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

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

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

P.S:  Here’s his blog.

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

Posted in About practicing law, The Good Wife, Uncategorized

 Annesunglasses

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

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

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

A:  Can’t we just give it to the AAG.

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

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

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

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

K3:  Well, he may.

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

K3:  What.

A:  Jody mentioned it to me the other day.

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

A:  I wasn’t sure if you knew.

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

John:  I can go with you.

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

John:  That’s tv.

K3:  Trust me.  Won’t be a problem.

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

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

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

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

 

 

Reminder or threat: an insurance company’s intimidation tactics

Posted in Uncategorized

threat2

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

Here is what happened.

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

I brought a motion to the court which included this:

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

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

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

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

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

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

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

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

To which the insurance company responded:

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

To which I responded:

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

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