The Velvet Hammer

The Velvet Hammer

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

Why I saw Trainwreck for the third time – recovering from a Mind Meld

Posted in About practicing law, direct exam

theater

 

Psychodrama is popular in trial lawyer circles.  This weekend it is taught at our trial lawyer convention.  I do not attend.  Happily.

I don’t care for the term psychodrama.  I’ve heard many good reviews from friends and colleagues.  I know many of the people who teach it.  But honestly, just hearing the word psychodrama causes a bit of a nose wrinkling reaction deep within me.

Please don’t hate me or think any less of me for being honest about this.  Psychodrama is the “in” thing.  More power to everyone who can learn from and benefit from these techniques.  But for me, it is just too much hullabaloo.  Too much in the brain.  Too much technique.  Too much consciousness for that which is in the intuitive realm.

One of the most wonderful but also emotionally horrific opportunities we have as plaintiff lawyers, is to learn about our clients and their families and friends.  We get to hear their private stories.  We get invited into their homes and hearts.  It is humbling to know how much we are trusted.  They know we are there only to help.  And that we will never hurt them.  But still we are lawyers.  Doing a job.

When I interview survivors and other people who have been personally touched and affected by a loss, I do not do psychodrama.   I do not go through a checklist.  I do not have an advance plan.  I have no outline.   I do not have a specific end goal.    I tell them that I am Oprah and they are my guest.    But there is something else that goes on and the best way I can describe it is to talk about Star Trek.

Now I am not Spock emotionally.  Just ask my kids.  However, I do appear to have developed a Spock like trait.  It is the Mind Meld.

The person I am interviewing will sit down.   We will get as close as feels right.  Lock eyes, and go to wherever we end up going.  We are human to human.  There is no artifice.  I don’t mind if we are speaking in present or past tense.  It doesn’t matter if we are physically acting out what happened, or just telling the story.  Our emotions are connected.  There is no judgment.  The anxiety fades away.

This is not to say that we shouldn’t learn techniques like psychodrama if they help.

But for me, I’m all about the Mind Meld.

There is an after effect however.  When Spock came out of a Mind Meld, he felt a bit faint.  This is true also for me.  Mind Meld is an almost out of body experience because it is all about the other person.  Every ounce of my being is focused on seeing, hearing, understanding, comforting, acknowledging, validating and being fully there with the other person during our journey.   When we separate from this bond, recovery is needed.

And so this weekend, after the convention, I drive to a small city.  Engage in four Mind Melds.  Then needing to decompress, find the local theater through Fandango.  And watch Trainwreck for the third time.  Amy Schumer is hilarious.

Photo:  The theater

 

 

 

Dear Karen – Do you wear suits to trial, if not what’s your typical “trialwear”

Posted in About practicing law, Women

 

outside

A male news anchor from Australia wore the same suit every day for a year - changing his shirt and tie – and no one noticed.  He did this to prove a point after becoming frustrated with the constant criticisms levied by the public against his female co-anchor’s appearance.

“No one has noticed; no one gives a s**t.  But women, they wear the wrong colour and they get pulled up.  Women are judged much more harshly and keenly for what they do, what they say and what they wear.”

I am pragmatic in dealing with this kind of double standard.

My top priority is my client.  I have to do everything in my power to put their interests first.  If jurors or  judges are going to have inherent biases against me based on appearance, it is my j.o.b. to do my best to make sure these biases are neutralized one way or the other.

I choose not to spend my time railing against the unfairness of stereotypical gender based clothing differences in the legal profession.  Instead, I focus on the positives:

1.  The stereotype of the “shark” lawyer that our public dislikes – is a white male in a suit and tie carrying a briefcase.  I will never look like that and am not so quickly type cast.

2.  The “male suit” looks formal and harsh, like a coat of armor, unless you are wearing seer sucker or linen which pretty much never happens in the Pacific NW.

3.  The differences between a gray, black and dark blue “male suit” – are negligible.  You will always look the same.  This is why Mr. Australia Anchorman got away with his one suit year.

4.  Remember what the people of China looked like when Mao ruled.  I’m  American and value individuality.  I don’t want to look like a prototype.

5.  We won our independence from Britain in 1776 and created a superior civil justice system that includes the right to trial by a jury of our peers.  We don’t have to wear uniforms of powdered wigs and black capes.  We are free of that.

6.   Sometimes I want to look like Power Woman.  Sometimes I want to look Gentle (which contrasts nicely if I am doing a hard cross of an expert). Sometimes I simply want to look the opposite of what the defense lawyers look like.   I want to be able to harness every ounce of persuasive ability that I can muster.  And that includes my visual appearance.

So the answer to the young lawyer who asked me the question of what is my typical trial wear is this:

I am formal but not overly so.  I always wear a jacket but it may range from a tailored black button down Hugo Boss, to a swingy three quarter length wide sleeve, from buttons to snaps, collars to no collars.  Labels to H&M.  I wear a lot of skirts. A line is too confining.  Typically above the knee, but there are a few longer ones.   I have only a few true suits and they are all more than 10 years old.   Everything is mix and match.  Just gave away my last white button down shirts because never wore them.  Like soft cotton or silk shirts.  Dresses too.  I don’t wear a lot of pants, but will.  I am a blue jean/legging person and don’t care for slacks as much.  No tan colored nylons.   Black tights in the winter and lots of lotion in the summer.

Finally, I mainly wear black and some gray.  For a few years, I tried to go lighter.  But black is my favorite color.  Plus everything matches which makes it easier to throw things together.

Photo:  By Cristina of Me and Nala when not in trial.

 

 

 

 

Mad John

Posted in About practicing law, depositions

madjohn

John doesn’t get angry.

He may get grumpy (on rare occasion).

But he doesn’t get angry.

I take for granted his smiles.  His good attitude.

John do this.  John do that.

Okay, he says and does.

I can be pretty bossy.  Comes with the territory of being a trial lawyer.

But today John is not happy.

We have been trying to schedule a deposition.

This doesn’t sound like it should be difficult.  But it almost always is.  Have to find a time that works for everyone.  In this case, the witness who is not a party is also bringing his own lawyer.  Finally find a date.  Send out the notices.  Book flight and car on Monday.  Always wait just to make sure.

2:00 pm Wednesday email from defense – “unfortunately” the witnesses’ “counsel can longer attend the deposition on Friday.”

2:05 pm email from me –  “These things happen and I don’t blame you.  But crap.”

John has been rushing around helping get materials ready for deposition and doing many other things for many other cases.

He comes into room.  I say – the deposition is off.

And then mad John appears.

This rare sighting results in the above picture.

Photo:  Mad John

On hospital introduced flesh eating bacteria and superbugs

Posted in Wrongful death

thor1

 

The calls are coming in with increasing frequency.  Loves ones have died after simple medical procedures.  The cause:  killer bacteria introduced into the body sometime during or after the procedure.  Surgical incisions aren’t even necessary.

The survivors are usually in shock.  One day the husband has some problem with the digestive tract and is going in for an exploratory scope.  A little while later, his organs have rotted and died from the inside out due to a hospital introduced micro piranha feeding frenzy.

If a person dies from this type of bacterial infestation, the hospital needs to be proactive.  It should immediately conduct an investigation to determine the exact microorganism involved and an autopsy should be ordered.

The procedure should be no different than what we expect if a restaurant causes someone to get e-coli or other food borne illness.  The restaurant needs to figure out what happened immediately.  Isolate the cause.  Scrub down and eliminate the hazard.  And take care of the people sickened or killed.

When public safety is involved, institutions shouldn’t try to protect themselves from possible lawsuits by pretending life threatening contamination problems don’t exist.

Photo:  Thor – given to me by my future son in law Sol on mother’s day.  Thor would strike his mighty hammer and deal with these organisms and institutions.  Swiftly and surely.

Jane the Court Reporter

Posted in About practicing law, depositions

jane

I met Allison when I was a defense lawyer.  She was so darling that she became my go-to court reporter.  When I became a plaintiff lawyer, nothing changed.  I still used Allison.  Others liked her as well, so Allison grew her business (Verb8tim Reporting) and hired Jane.

Yesterday, Allison was the court reporter for me.  This morning it’s Jane’s turn.

Court reporters are neutral professionals.  They don’t take sides.    Allison and Jane are my two favorites.  They always have a smile.  Never fall asleep (I would).  And do a great job.

Today, we are shooting the breeze, talking about Jane’s newest greatest steno machine.  Goodbye large metal stand carried in a suitcase.  We chat about her dog and dad.  Dad has just turned 99.  Amazing.  And about some of the funny things she’s transcribed over the years.  Like the witness who testified that the “car driver was driving erotically.”

The moral of this story is that court reporters are people too.  Here are some tips on how attorneys should treat a court reporter.

  • Say good morning, how are you, yes please and thank you.
  • Make eye contact occasionally.
  • If the deposition is going to go through the lunch hour – make sure that’s okay.  (I once knew a court reporter who had hypoglycemia and grew faint when lunch time came and went).
  • If the deposition is going to go past normal business hours – make sure that’s okay in advance.
  • If you need a transcript on a rush basis, do not yell and throw a fit.
  • When reading, do not race through the text.
  • When speaking do not mumble or speak with your chin resting on your hand
  • Ask the court reporter where you should sit if you are unsure
  • Do not talk at the same time as the witness
  • Do not talk at the same time as the other attorney
  • Do not talk at the same time as the interpreter
  • Wait until the court reporter has finished marking an exhibit before you start talking again
  • Make sure to provide a case caption
  • Be prepared to help provide the correct spellings for names and other case specific terminology

Photo:  Jane with her light speed steno machine

The Woodpecker and another tale of betrayal

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

woody

Someone is knocking on the door.  Nala starts barking.  Reach over for phone.  It is 6:30 a.m.  The knocking continues.  Realize it isn’t knocking.

Jump out of bed.  Rush to the balcony door.  Throw it open.   There’s a flurry of beautiful brown and orange red wings.  The woodpecker flies onto the 45 year old maple tree.  Looks back at me over his shoulder.  And takes off.

Up until yesterday, I quite liked Woody.  Had seen him hanging around the neighborhood.  A  Northern Flicker.  Quite glorious.  I was putting a few flowers in pots on the deck (since we’ve skipped winter here in Seattle).  When from out of nowhere he flew up to my house and started pecking at it.  I ran upstairs.  Craned my neck.  Spied one large hole and several smaller ones on the upper corner of the siding.  How could he.

With visions of holes completely being drilled through the wall I ran downstairs.  Got duct tape and aluminum foil.  Ran back uipstairs.  Dragged a chair onto the little balcony.  Had visions of falling off backwards over the railing.  Didn’t fall.  Taped foil as close to the holes as I could reach.  Came back inside.  Googled – how to get rid of a woodpecker.  Saw that putting foil up was actually a pretty decent idea.

Then this morning I awaken to him pecking again.  Remember Google also said try a wind chime.  Just happen to have one downstairs.  Run downstairs.  Run back up. Spend ten minutes untangling the strings.   Alysha brought it home from Thailand.  Brown bamboo and silver.  With a little elephant holding onto everything from above.  Hang it on the light fixture.  Next to the the aluminum foil.  It tinkles in the breeze.   Hopefully this will do it.

Woody and I started off as friends.  But he turned on me.  Forever changing the nature of our relationship.

When getting to know a new insurance attorney, I extend every courtesy.  Start out with the assumption that they will act professionally and respectfully.  Tend to get along well with most counsel.  Have developed friendships that have endured well after a case has resolved.

There’s a defense lawyer – let’s call her Ms. A.   She’s newer to the practice.  So far we have gotten along just fine.  Ms. A does tend to be a bit strident in the tone of her writing.  But I’ve shrugged that off as stemming from trying-to-prove-herself type of issues.    Have  decided to give her the benefit of the doubt.

We periodically chit and chat off the record.  There are many times, when Ms. A shares her personal struggles with me.  I never tattle or use anything against her.  This is an unspoken code.  We appear to be able to be friendly while still being adversarial.

This week, she files a reply brief in the case involving  deposition witness Mr. T.    Apparently she’s finally read my blogs on Mr. T.  Not sure what took her so long.  The blogs are written with the full knowledge that the defense tracks them.

There’s nothing in the blog posts that should be that surprising -unless you are interested in my wardrobe, or what I watch late at night on the treadmill.  Yet she decides to use the blog to attribute petty  improper motives to me.   Also known in Latin as an ad hominem attack.  She says:

1.            Koehler “was personally motivated” to bring the motion to compel so she could create “fodder for her blog and as a means of gaining bragging rights.”

2.            Koehler is on a “personal vendetta” against Mr. T

3.            The blog posting was “maliciously motivated.”

4.            The blog postings are “simply not appropriate”

Unfortunately duct tape, foil and a wind chime will not take care of this.  I calm down long enough to send an email:

Dear A – My best friend in the whole wide world is a defense lawyer.  I used to be one.  I respect both sides of the bar.

That said, your passive aggressive nature of being polite in person and being personally insulting and rude on paper, can no longer be tolerated by me.  You have crossed the line.  For no good reason other than to try to win a motion that you already lost.

I shall not repeat the derogatory comments you shared with me privately concerning Mr. T.  However, do not ever share any personal story with me again.  Do not act as if I am your friend.  Do not expect me to treat you with kindness and compassion in the future. 

I am quite willing to be Pollyanna.  Eager for people to act decently.  But once they start pecking on my house, I am guided by the stern words of Dick Foreman.  The  senior litigator who first supervised me as a then young defense lawyer.  He said:  you are not here to make friends – you are here to represent your clients.

I bring a motion to strike Ms. A’s brief. And a motion to shorten time.  Which the defense opposes. 

The Court ultimately enters an Order pretty much confirming the prior ruling on Mr. T.  At the bottom she writes:

blog order

 

Photo:  Anti wood pecker pecking strategy.

 

 

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

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

NalaMrT

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

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

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

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

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

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

***

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

***

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

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

The motion is attached here.CompelTMtn

The order is attached here. CompelTOrdr

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

 

 

Argument by iphone

Posted in About practicing law

tissue

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

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

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

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

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

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

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

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

Judge S:  Good morning counsel.

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

Judge S:  Smiling.  That’s fine counsel.

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

Photo:  self explanatory.

 

 

 

 

 

 

The Office Fitbit Solution

Posted in About Nala, Women

officedog

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

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

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

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

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

 

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

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

swiss

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

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

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

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

K3:  Really.

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

K3:  Smile.  (No response necessary).

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

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

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

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

Motion to permit Skype testimony at trial:  newMtoallowSkype