The Velvet Hammer™ -

Yesterday night Noelle didn't come home.  I worried about her.  Even though I figured she was staying at her friend Leda's house.  Noelle is 19.  Old enough to think that she doesn't have to check in every single minute of the day with me.  I have a hard time with that. Cristina and Alysha, her older sisters, know that 19 is not my magic cut off number.  Because I still call them and ask where they are every single day as well.

Today am working on two different cases where two kids Noelle's age, didn't come home ever again.  Here's the story of one of them.

S was actually a year younger than Noelle.  He and two buddies went to a 7-11 to pick up some candy and chips.  Happily munching their snacks as they walked home, they were mowed down from the rear by a drunk driver.   Once this despicable individual (and his buddy) stumbled out of their junker and realized what they hit was human, they got back in and fled the scene.  Until they hit a tree.  And eventually were caught.

Now, I don't learn all this simply by talking to people.  Or having Bryson my investigator tell me what people said to him.  No.  I learn it by re-living it.  Scour ever sentence of the 376 page police report.  Examine at zoom-in level each photo.  Study each line of the Medical Examiner's report - googling all the medical terms to make sure I get it.  Look at the broken covered body of S.  Look at the broken uncovered body of S.  Look at every single thing there is to see.  And it is overwhelming.  And sad.  And devasting as I think of his family.  In particular his father who raised him after he was deserted by his mother.

At times am crying.  This young person died on a cold, hard, road.  The last person to look at him before he left this world, was a police officer.  There was no one to whisper words of love.  To hold him.  To kiss him goodbye.

And then I get angry. 

Angry at the insurance company who says there is no case. 

Angry at The State of Washington for disrespecting the family.  For drawing a fake line in the sand.  That a parent has no rights when their child is killed if that child is over 17 years old.  That a parent's right to the love, care, companionship, and affection of their child vanishes on a birthday.

Noelle calls to say she's on her way home.  And somehow, I need to put S and his dad and all these details and images out of my mind.  And try not to drive her batty with my over-protective instincts borne of an elemental love - that the State of Washington could care less about.

Photo:  Every parent's nightmare.

The alarm is ringing.  Try to ignore it, but know cannot.  Look at the phone/clock and it is 4:30.  As in a.m.  Put on ugly red glasses.  Only wear them when no one can see me.  Like now.  Lie there til 4:45.  Finally jump up because  have to make a plane.  Open the drapes.  There is a gigantic full moon that seems to be shining a path across puget sound right into my bedroom. 

Rush around. Put on black clothing.  Tell Nala to get up.  Out the door.  Drop her at doggie daycare.  Make it to the airport by 6.  Stand in sluggish security line.  Even the special Spokane shuttle line is clogged.  No worries.  Have time to get a scone and bottle of water from D'Lish.

Eat mediocre blueberry scone in waiting area.  Wait until everyone else has boarded.  Then get on plane.  Make two people already seated in the row get up to let me in.  Close eyes and semi-fall asleep but not really.  Bump.  We've landed.  Open eyes.  Shuffle out of plane.  Call Steve Nordstrom my co-counsel.  He says he's already here.  Walk outside and there he is.  He asks if I mind if he opens the car door for me.  I say, by all means.  He's worried about it.  Apparently he did this to another female lawyer and she chewed him a new one.  The way I feel about it, if someone wants to open a door for me go for it.

We drive downtown.  It is too early.  Stop by Madeleine's french pastry shop.  Get an almost pure sugar creation.  Eat it.   Yes if you're counting this is a two pastry morning.

Go to mediation.  Gary Bloom's office at the US Bank building.  We get off at 4th floor.  Wrong.  We get back into elevator get off at 13th floor.  Our client is there.  First time I've met him.  I've been on this case about three months.  Steve has had it for over three years.  But asked me to help get it ready for trial.  Thank you Steve.

Fall in love with client.  Gary comes in and does his spectacular mediator dance. Goes out to the other room and repeats it.  Comes back and does some more.  And on it goes for two hours.  At which point we have to hurry off to court.  Yes that's right.  In the middle of mediation me, Steve, the defense attorney, his associate, the adjuster who's flown in, the defendant, the defendant's personal counsel all trot off to court.  Our client doesn't come with us.  We want to spare him.

Steve opens and closes doors for me several more times before we reach the courtroom.  I then sit at counsel table and do nothing other than take this picture.  The defense wants to stay the trial which is set to start in a month.  They want the court of appeals to rule on an issue (the county was dismissed).  Steve tells the court the only reason they want to do this is because our client has cancer.  They want to delay the case so he will never have his day in court.   Paul, the county attorney adds some nice arguments.

The defense lawyer makes his argument.  But it's hard to do a good job when you know you're going to lose.  Which he does.

So Steve opens and shuts more doors for me.  We get back up to the mediation room.  Gary comes back in and resumes his dance.

It is a very emotional mediation.  As you will recall, our client has cancer.  Not the good kind.  After we've strutted around and puffed out our feathers a bit, the case settles.  It is not confidential and I could tell you how much, but that isn't the point of this story.   I could also get the client's permission to tell you his reaction, but I don't want to do that because that is his story. 

What I can tell you, is that I hate settling cases in mediation as a general rule.  I want to try cases.  Don't want to compromise off of what I think is a proper value.  Perhaps in my entire career as a plaintiff lawyer have settled ten or less cases in mediation that was really pleased about.  For various reasons.

Well, this is one of those cases.

Gary comes back in with the paperwork.  Says the defendant truck driver would like to come in.  Just to see our client and apologize again.  The driver actually had visited our client in the hospital.  You'd think this would be what most bad drivers would do - but they almost never do.  So we like him for being decent.    I tell Gary he can come in if they will pay more money.  Gary falls back in his chair.  Tell him just kidding.  The driver comes in with all the lawyers and adjuster.  They are very respectful and gracious.  Then leave.

I hug the client goodbye.  Say bye to Gary.  Steve opens and closes various doors for me as he gets me to the airport.   It is 4. Hug him goodbye.   Go to the grill and eat a very bad quesadilla and garden salad (uh - no garden in that salad).

Am last to board plane.  Make woman in the aisle seat get up to let me in.  Sit down.  Close eyes and do not open them until. Bump.  Have landed.

Rush home.  Throw on running gear.  It is 7:15.  Sun sets at 8:15.  Run down hill. Along waterfront.  Up over bridge.  Pick up Nala at doggie daycare.  Back over bridge.  Through train yard.  Up hill.  Sun has set.  Meander through residential district.  Thinking what a very good job everyone did today. Our side and their side.  We all got it right.

Get home.  Look at calendar.  Oh no.

Have to make another 7:00 am plane tomorrow.  Crud.

Photo:  During the break in mediation today.  Steve arguing in court.  Paul studying up.

Flashback 1991

Tom Chambers has summoned me.  I walk down the hall past Sheila - Tom’s right hand office manager whom we have nicknamed Sheera Princess of Power.  Enter his fake office.  The one where he meets with clients or other lawyers and important people.   It is as big as a large living room.   Sitting proudly next to the marble fireplace is an imposing desk.  There is one small pile of papers neatly stacked on it just so.  As if ready for a magazine photo shoot.

Ignoring all of the magnificence, I head towards an open door on the left side of the room.   The door leads to a closet.    Tom’s real office.   Inside, papers and files are piled high on unimposing furniture.  Tom sits there contentedly.  Surrounded by his cases.    

The room is so small that I have to stand outside of its doorway.  Tom hands me a file.  He has obtained a large uninsured motorist award in an arbitration.  It well exceeds the policy limits.  He tried to settle with the insurance company.  But as usual they are obstinate, unreasonable, and have forced litigation.  Now after making its insureds waste time and expense fighting for payment, the insurance company is only willing to pay the award up to its policy limits.  But Tom has another idea.  The idea involves me.  My assignment is to get the insurance company to pay the rest of the money.

Me:        I don’t see how this can be done.

TJC:        It can be.

Me:        Is there precedence for this.  Do you have anything for me to work from. 

TJC:       Just looks at me with that steady unblinking semi-smile of his.

Me:        I don’t see how this can be done.  (Mentally roll my eyes).

I take the file.  Review it.  Research it.  Write a brief.  Read the opposition brief and know we are going to lose.  Remind Tom of this.  Research more.  Write the reply brief.

The day has dawned for the motion hearing.   Complain one more time to Tom.   He barely blinks.  Try a different approach:  Hey Tom maybe you’d like to argue this.  No.  He wouldn’t.

Alysha is still an infant.  Hand her carrier to Sheila so she can watch her.  Drive the few miles to Third & James. 

Trudge into Judge Faith Ireland’s courtroom.    This is going to be so embarrassing.  Am going to lose this big time.  Say hi to the defense lawyer with downcast eyes.  Preparing for the inevitable thrashing.

Judge enters.  Calls me to the bench.  I stand up and deliver. 

Defense lawyer goes next.  Haughty and snotty.  Says I am a dumb dumb and don’t know what the heck I’m talking about (paraphrasing just a little).

Judge Ireland says:  motion granted.  I smile slightly and pull out a proposed order.  As if I always expected to win and this is no big deal.

Defense lawyer is continuing to argue.  Her face is actually red.  Finally the court shuts her down.  Signs the order and sends us on our way.

Drive back to the office.  Walk up the stairs.  Cross the fake office.  Stand in the doorway of the real office. 

Tom looks at me.  With his half smile. 

I shamefully announce the news that I won.

And he grins.

Moral of the story:  The biggest mistake trial lawyers make is giving up too soon.

Photo:  My nephews Ben and EJ playing chess

We used a ton of visuals in this case. Opening was filled with animations, blow up charts, video, and story boards. In this brief excerpt you can hear what was said to weave in all the images.  As with all transcripts, I leave in all the typos as well as all my word flubs.  I say "you know" too much.  That's for sure. 

Transcript of a portion of the opening statement to the jury: 

This is the overview of C's injuries that I'm going to talk to you about now. She had what's generally called a diffuse axonal injury, meaning that there wasn't one, you know, particular -- there it is, that's the part of the hemorrhage that is the problem, it's all over her brain.

It's in all of these different areas that are noted here. It's pretty much all through it. The doctors -- and you'll be able to see brain and neurologists looking into the brain and showing you all of the problems by videotape.

At this point we are going to show you an animation that's not an actual brain surgery, but we -- there are so many medical records; for me to tell you them would take a long time and be very boring, and instead, we can show it to you. This was recreated, and doctors have signed off on it as being what happened with C. I'm going to do this without any explanation. During trial we'll have somebody explain this.

(Video playing).

That was the first surgery. And what basically happened, I'm not a neurosurgeon, but just so you know, when the brain is injured like that, like any body part, it wants to swell. So in order to prevent probably death in this case, the doctors have the technique where they actually take off parts of the skull, and that allows the brain to swell beyond, you know, the head, where it needs to go, and then eventually it will go back. And that happened. They actually put the skull in a freezer, a piece of it in a freezer, and it stays there for, in this case, about half a year.

So this is going to be the second surgery of this procedure. There were lots of other surgeries, and I'll talk to you about those later, but this is the second surgery on putting the skull back.

(Video playing.)

It's amazing, surgery, and -- they were able to put most of it back together, but you can see it's not quite all the way. Looking at the damage to C's brain is an interesting medical feat. There is a neurologist who is -- has a very, very high quality brain imaging beyond MRI.

And this is kind of Greek to some people, including me, but I have a blowup here. And MRIs are kind of like, they take slices this way, so it's kind of -- you're not seeing a three-dimensional, and that's why there's so many of them.

So, for example, what this shows are pretty much black holes. The black holes are where the brain hemorrhages were that have permanently damaged the brain. And these, again, are scattered all through C's brain.mBut I just wanted to pull one so you could see it. There will be more testimony on how her brain was injured from a scientific standpoint. C was in a coma for five weeks at Southwest Medical Center. She has had a very difficult course of treatment and came close to death many times.

She is, you know, a miracle, because in April they were going to put her in a, basically a, I don't know a better word to say this, but more like a warehouse type of place where a person that's completely non-responsive, you don't need therapy but they'll care for you. It's a hospital bed where -- so she'd been stabilized by this time. And I think it was the morning that she was destined to be moved, she started -- it's in the chart notes, and it's quite remarkable, that that was one of her miracle points, and changed the course of what she's able to do today.

This is C, this is when she has had -- her skull piece is not there, so you can see that her temple is sunk in. This is her long-term boyfriend, who is still her boyfriend and fiancé, J. Because of the coma, and then how she's been able to recuperate and what she's left with, C is appearing in this case under her guardian, KB is here. He won't be here during the entire trial due to his commitments because he's a full-time guardian. He's appointed by the court to authorize this litigation. And this -- and basically, at this point, to manage every single aspect of C's life because she did not -- she was incompetent to do so, in part because of the coma, and then her severe restrictions after. So I'd like to talk about some of these injuries. These are hard to read, but we're going to be going over them quite a bit.

Do people want to stand up while I do this?

THE COURT: Do you need to set up?

MS. KOEHLER: I just need to get it, and then set it up.

THE COURT: (To the jurors) Did you want to stand up for a second? You're welcome to.

MS. KOEHLER: So these are the injuries that she suffered. And I'm doing it this way rather than showing you, literally this many medical records, piece by piece. So we already talked about the traumatic brain injury, which is the most severe injury. She --

THE COURT: Do you need a laser pointer?

MS. KOEHLER: No, I'm okay. This is a little bit bigger, so you could see it a little bit better. She was obviously not able to function without mechanical equipment, so she agreed, through a tracheotomy tube that was placed, and you'll see that she did have a recurrent lung collapsing. Unfortunately she got MRSA.

She had right-sided rib fracture, she had problems with her lungs, fluid buildup in the lungs, she had -- her spleen was lacerated from the collision. She had major problems with her feeding tube. To this day she has -- she literally has a scar that looks about like this, maybe it's a little taller, it's a big -- it's very thick. Because they had to do so many operations on that feeding tube, it got infected.

She just -- that was -- it was almost life-threatening at times, it was very, very problematic. Peritonitis, which was the infection, she has septic shock, recurrent urinary tract infections because of the catheter injuries, and she also ended up having a blood clot. This was just a very sick gal.

So let me go to the surgeries. And this is a little bigger. These are just representatives. This is of what would generally happen. So the first procedure that was done of her brain was to put a monotron device inside of it, into it. You saw this surgery, the second surgery is one of the surgeries that you saw.

She had a chest tube surgery, she had feeding tube surgery, she had breathing tube surgery, she had another chest tube surgery because of complications. On March 11 she had the abdominal leaking and the sepsis and all that, so she had that repeated feeding tube surgery. She had to have lung intubationon March 14, she had to have it again on March 21st.

And then like I said, it's about half a year later, September 23rd, she had the final surgery to reattach her skull piece. So these are surgical procedures, not the multiple other procedures that she had. The date of her discharge diagnosis -- normally when you go to the hospital and you have a discharge diagnosis you have one or two things. As you can see, she had 14 items on her discharge diagnosis. I'm going to show you those in a minute.

This is -- her day of admission was February 27th and her date of discharge, which was, as I told you, the miracle when she was able to not be discharged to be warehoused to be rehabilitated. This is a bigger version of her discharge diagnosis. So again, her admission discharge is different than your discharge diagnosis, which is why I'm going through this again. She has a traumatic brain injury, and this is their words, not mine, acute respiratory failure with tracheostomy placement and also removal, right pneumothorax with chest tube placement times two resolved.
Pulmonary contusion, the fracture of the right fifth rib, the splenic injury, grade 1. Her gastro tube placement. She had a laparotomy for the G-tube erosion with new placement of the G-tube. Spasticity, the entire left side, greatest in the hand and foot.

She had some other issues like dehydration, acute blood loss, anemia, hyperkalemia, leukocytoses, and narcotic dependence due to the pain medications they were giving her, so this was as of April 3rd, 2009.

What I'm going to show you now is a video of C taken on May 12, 2009. So this is -- I need power.

All right, so this in May of 2009. I believe that this entire video is like an hour and a half, so it's not what you're going to be watching, you're going to be watching, I believe it's something like four minutes, so you might see some editing, and it's simply because it was an hour and a half.

So this is C in rehab on May 12, 2009. Let me tell you one other thing. We're going to have sound with this, and I'm not sure, because this is an open therapy room, you might hear therapists that are talking to C, and other people talking, so it might be a little distracting,

MS. KOEHLER: My apologies. She was discharged from the hospital on April 30, so a month and a week later in the rehab. The other woman in this film is KF , which is C's grandmother, the blond woman.

(Video concluded.)

Visual by Duane Hoffman

Prologue:  Failure to Mitigate is a legal defense.  The charge here, is the injured person made herself worse by not following doctors orders.

We break for lunch.

I’m out in the hall.  Meeting the parade of C’s own health care providers that Nick is calling to testify in the defense case against her. 

At 1:00 a prisoner in shackles is marched in.  The courtroom fills.  Cristina comes out to the hall about half an hour later.  She looks flustered.  What happened.  I’d told her to stay and watch as it would be interesting.

Well, it is apparently a bit brutal.  A sentencing hearing.  The guy beat his girlfriend with a metal pipe.  First fracturing her hands and wrists as she held them up to shield her head; then fracturing her skull.  She’s alive so it isn’t a murder charge.

Judge W comes rushing out to go take a break before we resume.  Looks just as upset as Cristina.  Says – I gave him the maximum possible sentence 28 years.  And strides out the door.

The prisoner comes through next.  Flanked by five officers.  Apparently he assaulted someone in jail.  Not a nice fellow.  Followed out of the courtroom by the woman and her family.  All crying.

We start trial about 20 minutes late.

Nick is calling a physician’s assistant and three physical therapists.   It is never a good sign when the defense calls the plaintiff’s own treating providers.  Here, the reason is that C was told she needed to wear a large brace on her left leg to assist with foot drop and hyperextension of the knee.  But she never followed through.  Over and over again they tried to get her to do it.  But she didn’t.  Plus he wants to pull out paragraphs here and there to show how good she was performing on certain tests.

That is his goal.  And that is what he does.  But the story isn’t over.  Because we get to cross.  Which doesn’t mean that we are trying to impeach or contradict these witness.  Au contraire.

Witness number one: the physician’s assistant.  Nick trots him through carefully selected portions of his medical records.  Gets him to admit C didn’t wear her brace. 

Cross time.  I am fiddling with the video (to show some speech therapy).  Get tangled in cords.  Realize I need the speaker.  And apparently begin to drive Nick nuts.  I then pull out exhibit 30, the famous brace.  Objection.  Overruled.  I decide to put it on.  Need a chair.  Am boxed in.  As I try to figure out what to do, Nick offers me his chair.  Why thank you Mr. Scarpelli.   Sit down.  Take off my shoes.  This takes a while because I have little ankle straps.   Begin to strap on the brace.   The jurors stand up.  Smiling.  Trying to get a good look at what I'm doing.

Limp over to the PA witness, but he’s not real familiar with how this contraption is going to work.  Says I should ask the physical therapist.  Good idea.

Limp back to chair. Take off brace.  Ask the court for permission to publish it to the jury.  Nick objects.  Argues - waste of time.  What he’s really saying is – are you freakin’ kidding me, this woman drives me crazy.  Objection overruled.  The jury passes it around as I slowly buckle my shoes back on.

Witness number two:  the first physical therapist.  Nick takes her through the paragraphs of her chart.  Gets her to say C didn’t follow through with her brace.

Cross time.   I am showing her a video of C walking two months ago.  She comes up to the tv.  Uses my pointer.  (Did I tell you that I misplaced my pointer, but Anne pulled one off an old boom box.  It is duct taped.  The judge loves it and always makes a comment about the old chevy it must have come from).   The therapist points at C’s moving image with it.  This brings to life the problem we’ve heard described and pretended to understand.  But really haven’t until now.   I look at her with a smile and ask what size shoe she wears.   Perfect!

Basically I can hear a groan or snort or some sort of gasp for air from Nick’s direction. 

Can you put this brace on and show the jury how it works.

Sure she says. 

But before she can put it on, Nick loses it.  A major meltdown moment.   In a loud voice he accuses me of wasting time and basically of being a bad lawyer.

This is of course the moment that I’ve been waiting for.  Never thinking it would actually come.  Because lawyers know that no matter how much we may argue, we must always be professional.  Especially in front of a judge, clerk, 14 jurors, 3 lawyers, 1 paralegal, 1 tech guy, my daughter, and several other observers.

Apparently I’ve gotten under Nick’s skin.

When Nick is done berating me, I ask with limpid eyes, in a sweet, soft, hurt voice: why are you being so mean to me, I’ve been nothing but nice to you.  

This does not calm him down.

Judge W and the jurors would surely like to break out the popcorn.

He objects to having the therapist put on the brace.  I respond in the same soft, sweet puzzled voice.  But Mr. Scarpelli, the last witness said I should ask this question of PT and that’s what I’m doing.  Objection overruled.

The witness puts on the brace.  The jury stands up to look.  Just like they did for me.  And learns something new.

 Photo:  Nick unsuccessfully objecting to my cross demonstration with the blasted brace.

The insurance company hires two defense doctors to testify.  They don't examine the patient.  Just read the records and come up with opinions.  A nice way for a couch doctor to earn $750 to $1000 per hour.

I take their depositions one after the other.  Dr. 1 is taken at 2:00 and lasts for an hour.  The next is set to start at 3:30.  So what do you think.  Will Dr. 1 and Dr. 2 try to get their story straight in the 15 minutes between the two depositions.  Read on.

11
 7   Q    Did you speak with Dr. 1?
 8   A    Yes.
 9   Q    When?
10   A    Not very long ago.  It must have been after his
11        deposition.  He called me before his deposition, and we
12        talked extremely briefly, and then he called me back
13        for -- I was in my car, actually -- for perhaps eight
14        minutes.
15   Q    So I just took his deposition, and then you talked to
16        him before your deposition in the car.  So what did he
17        have to say?
18   A    Well, I had formed some opinions, and he confirmed, you
19        know, my thoughts, so we seemed to be in concordance, if
20        I understood him correctly.
21   Q    In concordance or in cahoots?
22                     MR. CROWELL:  Object.
23   A    That wasn't necessary, ma'am.
24   Q    (By Ms. Koehler)  How often do you try to talk to
25        somebody after their deposition that is right before
                            12
 1        your deposition to make sure that your testimony is the
 2        same as theirs?
 3   A    Well, the way you asked that question no matter what I
 4        answer I'm going to be a crook, so I'm not going to
 5        answer your question, because I can't.

Tip for Attorneys:  Ask the defense experts about their conversations not only with defense lawyers, but the other expert witnesses.

Ms. A is insured by State Farm with UIM. They do not want to pay the claim.  They hire this psychiatrist to do a records review. To help them challenge the injury claim.   Dr. P never meets or interviews Ms. A.   But being the God-like creature that he is, will testify that Ms. A somaticizes her injuries and has "secondary gain."   What this means in real people language - is that she is making the injuries up.   My job is to show that he is the one making things up.

In order to get the full flavor you have to picture:  a) The court reporter and I are in my office; b) the doctor is on the phone from California; c) the defense lawyer is on the phone in his office; d) as I begin to lose my temper am - waving arms in air, rolling eyes around head, throwing head down on arms on table, and being major drama queen.  You get the drift.  This is the nice part about doing a deposition when no one else can see you.

A teeny bit of background.  Ms. A is in her mid 20s when this happens while she is getting her PhD. She now is doing post doctoral work.  She brings a claim for medical bills and personal injuries.  She is not making a wage loss claim.

I am asking for his opinions.  And the fight begins:

25   Anything else?
                            25
 1   A    Well, I think I -- I believe she's using her symptoms
 2        for secondary gain, that is, to get benefits that she
 3        would not otherwise receive.
 4   Q    So, this -- let me get this straight.  She hasn't seen a
 5        doctor for psychological issues since two thousand --
 6        for almost four years.  She functions at a very high
 7        level, she is in a successful relationship, and she is
 8        making up her symptoms so she can get money from her
 9        uninsured motorist insurance company?
10   A    No, that's not correct, and that's not what I said.  I
11        said --
12   Q    Well, it sure sounded like it.
13   A    Allow me to finish, please.  I said that she has
14        secondary gain motivation.  I didn't say that -- you
15        know, any of what you said.
16   Q    Well, secondary gain from this litigation means she's
17        trying to get money by making up or magnifying her
18        symptoms.
19   A    No, you have a misunderstanding of secondary gain.
20   Q    Well, you tell me then what your understanding of it is.
21   A    Well, what it means is that she is attempting to use her
22        symptoms -- and as far as I can tell it's unconscious --
23        to get benefits that she would otherwise not receive.
24        If I had evidence that she was consciously, you know,
25        using her symptoms to gain benefits that she would not
                            26
 1        otherwise receive, that would be malingering.  I'm not
 2        saying she's malingering, I'm saying she has secondary
 3        gain motivations.  That's different.
 4   Q    So your opinion is that she's not a malingerer?
 5   A    I did not say that.  I said I did not have evidence that
 6        she is malingering.  I don't know whether she is or is
 7        not malingering.
 8   Q    Am I correct that there is no evidence that she's
 9        malingering?
10   A    I never said that.  She could be.
11   Q    Doctor, that's not what I said.  I said you have found
12        no evidence that she's a malingerer?
13   A    No, that's not correct.
14   Q    What evidence have you found that she's malingering?
15   A    I've found that she's reporting more physical symptoms
16        than can be objectively accounted for based on the
17        nature of the accident she's experienced.
18   Q    Are you telling us on a more probable than not basis
19        that she is a malingerer or not?
20   A    I said, I am not -- I do not have -- I do not conclude
21        at this point that she is malingering.  However, is it
22        possible she's malingering?  Yes, it's possible.
23   Q    I don't care about possibilities.  We only care about
24        more probable than not.  You know that.
25   A    At this moment I do not think it's probable she's
                            27
 1        malingering.  That opinion could change if additional
 2        material were provided.
 3   Q    But you do believe she has secondary gain?
 4   A    Oh, yes, of course.
 5   Q    And what is the benefit that she's trying to get?
 6   A    Well, money, for one.  She's trying to get money, she's
 7        getting concern, care, support from others -- for
 8        instance -- let me just find this.  She was -- she
 9        was -- she was going to have -- somebody else was going
10        to present a paper for her, and I -- that -- you know,
11        so that she wouldn't have to present it because of her
12        physical symptoms.  Now, it turned out that that didn't
13        actually happen.  She herself did, in fact, go ahead and
14        present the paper.
15             And also, her supervisor at the University of
16        Washington, he was -- I think it's a he, I'm not sure
17        about that, but whoever her supervisor was, was going to
18        also -- I have to find that.  I have it here
19        someplace -- was going to help her out in some way.  So
20        those are examples of secondary gain right there.
21   Q    Secondary gain because somebody that's as prideful as
22        her and as accomplished as her needs to have help?  I
23        find your insinuations to be shockingly rude.
24   A    No, you're misinterpreting what I'm saying.  I'm saying
25        on a psychological basis, this lady -- okay, look.  This
                            28
 1        lady has unmet dependency needs.  Her parents were
 2        divorced when she was four.  She was raised by her
 3        paternal grandparents until ten.  She then -- her father
 4        then got custody of her, which is extraordinarily
 5        unusual in California, which I believe that happened.
 6        And then her mother then got custody of her the
 7        following year, okay?  This lady has unmet dependency
 8        needs.  She is using these symptoms that she has to try
 9        to get these unmet dependency needs met for secondary
10        gain purposes.
11   Q    I find your opinions outrageous.  You have not even met
12        her.
13   A    I have records that --
14   Q    I mean, honestly --
15                     MR. CROWELL:  Objection, argumentative.
16   Q    (By Ms. Koehler)  I am absolutely appalled.
17                     MR. CROWELL:  Is that a question, Counsel?
18   Q    (By Ms. Koehler)  Oprah Winfrey was abused as a child
19        and she's one of the most powerful women in the world.
20        How can you try to insinuate that she's got secondary
21        gain issues because of her abandonment and family of
22        origin issues?  I mean, that is an extraordinary leap of
23        faith.
24   A    If she has unmet dependency needs, and if those are
25        there, which I believe they are -- and I can show you
                            29
 1        some other evidence for that.  But if she does, and I
 2        believe that she does, then, she is in a position to
 3        attempt to get those unmet dependency needs met, and one
 4        of the ways -- and this is unconscious.  I'm not saying
 5        this lady is doing this consciously, deliberately.
 6        Don't get me wrong.  She's functioning at a very high
 7        level.  She's doing very well.  But psychologically I
 8        believe what I'm saying is going on, and that accounts
 9        for some -- some of the -- some of the behavior that we
10        see.
11   Q    Doctor, do you have a crystal ball on the other end of
12        that phone?
13   A    What are you talking about?
14   Q    How can you make this kind of declaration when you've
15        never examined her, when you've said that you're -- that
16        testing should have been performed that wasn't
17        performed, and that there's information that you think
18        is missing?  How can you jump to these conclusions when
19        you don't have any basis to make them?
20   A    You're wrong.  I have my knowledge, training, and
21        experience.  I know what happens in these kind of
22        situations.  I know what happens when parents are -- you
23        know, when a person -- parents are divorced when they're
24        four years old.  I know what that does.  There's all
25        kinds of research that indicates what happens.
                            30
 1   Q    Well, I'm really offended now --
 2   A    Judith Wallerstein wrote a whole book about this kind of
 3        thing in Marin County here.  I mean, she's a
 4        psychoanalyst.  I mean, this is well known.  This is
 5        hardly something that's not known.
 6   Q    Well, I have a daughter who was four years old when her
 7        parents were divorced and she doesn't appear to have
 8        unmet dependency issues.  She's functioning quite highly
 9        and very well.
10   A    Look.  Miss A is functioning highly as well.  But
11        we're talking accounting for certain kinds of behavior
12        and symptoms.  And just because somebody was, you know,
13        parents were divorced when they were four, that doesn't
14        necessarily mean that that will be the result.  But in
15        this case, when I put everything together that is
16        present, and you know, using my knowledge, training and
17        experience, I think it's a reasonable conclusion.  I
18        think it's more likely than not.
19   Q    Well, I think that you should be ashamed.

There should really  be an exclamation mark after the word ashamed!

But perhaps the most amazing part comes at the end of cross examination the next week.  Today in fact.  During the UIM Arbitration proceeding.    After testifying again to the above crapola, I ask the doctor for any evidence he has that Ms. A somaticized before the car crash.  And here is what he says.  No lie.  Am not kidding.

She had headaches which is evidence of somatization.  She also had dysmenorrhea which again is evidence of somatization.  I actually look it up on the internet to make sure I have this right.  Yep.  I do.

So you are saying, doctor that headaches and pain with menstruation are evidence of somatization. 

Yes.

So a woman who has headaches and pain with menstruation is likely somatizing the events.

Yes.

Since women are the only ones who have pain with menstruation, I suppose the statistics show that women have a much higher incidence of somatization than men.

Yes.

Pinch my leg to make sure have not time travelled back to the 1930s.  Yes, ladies and gentleman, this is the kind of defense expert your good neighbor will hire to testify against you, if you are hurt in a crash and bring an underinsured motorist claim.

Photo:  At the arbitration before State Farm's special video connect program (not skype) failed to work.

I teach trial advocacy with Judith Shahn who is a voice coach.  Judy has been a senior lecturer at the University of Washington's School of Drama since 1990.

Here are Judy's top suggestions for more effective speaking:

Ten Voice Essentials to Remember:

1.      Keep your weight on both feet

(when you move – move deliberately and land on both feet)

2.      Keep your hands relaxed at your sides

(when you have the impulse to gesture – let your hands help you; when you don’t – let them just relax. Don’t hold your hands behind you or in front of you – what are you hiding?) 

3.      Allow your first breath and others may follow

Relax your outer belly muscles (leave the control top panty hose at home) and allow the breath in. Each new thought begins with a breath – thus the word, “inspiration”.

Practice whispering “huh”

 Now voice it – “huh”

 Now say “hey”, “hi”, “hello”, “how are you?”

(can you feel your middle responding?)

 Now, much stronger, “HOW DARE YOU?” The “h” will connect you with your diaphragm. 

4.      Vocal Energy is what carries your words out to all in the courtroom.

In a jury trial, everything you say is for the benefit of the jury, whether it’s opening, closing or examining a witness. If you had a volume dial from 1-10, you should be between 4 and 6 during the trial. 

5.      Speak at the speed of your thinking

If you speak too fast, you leave the jury behind you – speak too slowly, and they are way ahead. Your speed will shift, depending on your thinking: example – “The prosecution is trying to make you believe that the circumstances are enough to convict my client in this case; but, after examining the evidence, I believe you will do the right thing and find Mr. Smith – innocent!” The first part of the sentence wants to move quicker, whereas you want the jury to stay with you for the important words: evidence, right thing, and innocent. 

6.      Employ vocal highlighting

This is something we do naturally when we are expressing something important, but sometimes we forget when we’re under pressure and everything flattens out to sound the same.

Practice emphasizing different words with the simple sentence:

Billy Button bought a bunch of beautiful bananas.

Notice how each new emphasis changes the meaning. Now try with this one:

Mr. Smith never entered the house on Elm Street at 9:00 pm on December 5^th, because witnesses identified him at the same time at the George St. Tavern across town. So, he never had the opportunity to murder Sarah Jones. 

7.      Pitch is thought

Human beings use pitch as a way to inflect their thinking and make it more expressive. Pitch is also an emotional response.

As lawyers, you can use pitch to be more authorative, understanding, ironic, humorous, friendly or factual, for example.

Your voice getting stuck on one pitch is like serving the jury the same meal every day or telling the same, predictable joke. Women tend to get stuck on the higher end and men, on the lower end, but either way is deadly.

8.  Timing is everything

Never underestimate the power of rhythm in speaking. Good writers are really aware of it, good actors can accomplish it and good lawyers should take advantage of it. Vary your rhythm as much as possible. Slow down to make a point – use mono syllables when something’s really important. Shakespeare did it:

“that but this blow must be the be all and the end all….here.”

9.“Words are the boats that travel on the river of sound”

This saying is from Kristin Linklater, an internationally renowned voice teacher. In essence, your intention must always be going forward towards the people you are speaking to. If your voice is swallowed or nasal, we are not receiving you.

Practice fluttering your lips: bbrrrreee, bbrrrrrrey, bbrrrrah

or trilling your r’s: rrrrrrreeeeeeeee, rrrrrrrrrrey, rrrrrrrrah

Or practice tossing a ball with someone while you are speaking. Let the final word in your sentence land as the other person catches the ball.

10. There is drama in the room

This may be obvious, but knowing when the light is on you and you are the center of attention is a very important tool. Sensing when to move and when to stay still, when to look directly at someone and when to avoid them, when to be expressive or when to be factual are important tools to have. Playing an intention puts you in charge. For example: are you trying to: educate, inform, entertain, shock, warn, mock, protect, reveal, plead,demand, instruct (or any other intention).  This will inform your way of speaking and ultimately how you get through.

Lawyers cannot take communication for granted. The art of persuasiveness can only be finessed with practice. There is always room for improvement.  It is wise to periodically to reexamine your modes of expressing yourself: your body language, vocal quality, pacing, clarity, phrasing and intentionality.

Cartoon:  By Jay Flynn (c)  2010

We are packed in his former office building.  Reminiscing.  Rubbing elbows.  Smiling and sometimes shedding tears.  Marveling over the career of this brilliant man. 

Born over a gas station in rural Washington.  Becoming one of the best plaintiff trial lawyers the state has ever seen.  President of the trial lawyers.  President of the state bar.  And finally Supreme Court Justice.  We are here to honor Tom Chambers.

This video clip features:

Justice Tom Chambers

Lori Haskell, Emcee

Speakers in order:  Chief Justice Barbara Madsen; UW Law School Dean KellyeTesty; Trial lawyers -  Paul Luvera, Karen Koehler, Bill Bailey; Justice Tom Chambers

Youtube link:  http://www.youtube.com/watch?v=rHGDTRG2l68

Videographer:  Laura Anglin, Justice Chamber's Supreme Court Clerk

Party planner:  Sheila Gunderson, Tom's long time assistant

My parents had a pretty good strategy on how to keep the five of us out of trouble.   Both of them worked.  We had various babysitters (one of whom ripped us off but that's another story).  This was in the days when neighbors kept a lookout for us kids as well.   Still, mom and dad left nothing to chance.

The strategy was to keep us busy.  For me, in addition to regular school it meant piano lessons (and practicing every day), religious school twice a week, being in various extracurricular school activities, and lots of time outside.  We had a mobile home between Stevens Pass and Leavenworth that we drove to (in the Chrysler town & country) every weekend. 

In high school I continued to take piano, practice two hours a day, taught students of my own, was co-editor of the student newspaper, in the orchestra (string bass), sometimes in the band, performed piano accompaniment for soloists, parliamentarian of student government, and was in charge of raising the "three little kids" (Susan, Jen & Greg the youngest of us 5). 

Forward fast.

Mary Ann has come to help with bookkeeping for the nonprofit organization that I head.  She takes a look around and remarks:  wow.  your desk doesn't usually look like this."  It is a mess. 

I'm preparing for my third trial in as many months.  But this trial is unlike the other two. 

Usually I can get ready for trial without causing hardly a ripple in our office.  With the exception of John and Anne my paralegals, Garth who handles jury instructions, and Mike/Ryan who help with tech set up; the other attorneys, paralegals and support staff go about their merry way.

Not so this time.

This is a very big case.  My co-counsel is here from out of state.  He's set up a trial lawyer's technological dream downstairs in our mock court room.  The 70" tv that we will bring with us is connected to our laptops and ipads and elmo and dvd.    We have a bag of cords, piles of big board exhibits,  easels, laptop and ipad stands.  The stuff keeps accumulating.  

Anne is the lead paralegal.  She's running around so much that she finally has to let go of something precious.  She takes off her gilt gold high heeled sandles that match her leopard skin sparkly flouncy top.  I do a double take when she shows up in sneakers.  There's a first for everything.

Jody is the second lead paralegal, she is in our Hoquiam office.  I can imagine her running around just like Anne.  John loads 100s of exhibits onto my ipad,  Mike is editing videos and dealing with tech, Ryan is dealing with tech and laughing at me, Patti stays late to help Anne (one time they were here til 10 - as in p.m.). Ken helps with exhibit creation and enlarging.  Thelma fields the masses of calls and mail. Jayne works for my cocounsel far far away.  And there are others in this wonderful firm of mine.  All helping us out.  Two of my partners, Paul and Garth have worked on the case for a long time.  Helping to fend off attacks from the defense.   It takes a village. 

My days now start at 8 and end around 2 in the morning.  Briefs have to be researched and written.  Witnesses coordinated.  Exhibits organized and digested.  Depositions read. Testimony outlines prepared.  Defense counsel handled.  Software figured out.  Other cases managed. 

I sit on the bouncy ball, surrounded by my computer screens, covered by paper, on the phone with an expert, texting co-counsel and a daughter,  Earth Wind & Fire Pandora playing, Nala crunching her bone in the background.

And silently thank my parents for preparing me so well.

Photo:  my desk centered with a card from Cristina

Note:  I do write trial diaries.  Portions of those diaries are sometimes published in this blog.  They are never posted until after the trial ends and the jury verdict is entered. 

I first tried a MIST case (Minor Impact Soft Tissue) fifteen years ago. Glenn Phillips (he of the billboard/tv/bus/cab advertising fame) was the defense lawyer.

I was going to be speaking in the country’s first “How to Hammer Allstate” seminar conceived by my then law partner Pat LePley. So I needed a sample case. One of my existing clients was involved in a zero property damage car strike. I took it on to see what Allstate would do. They hired Glenn, his associate, a biomechanic expert and an orthopedic surgeon who wrote a 35 page report. Our side had a chiro who had never testified before even in deposition. And the husband (a Boeing engineer) to counter the defense biomechanic. Well, we beat the zero offer. And got over a grand in sanctions because Allstate refused to admit fault until the first day of trial. My love affair with MIST cases was born.

SCREEEEAATCHHHHHHHHH! (Old fashioned record comes to a jagged ear splitting halt).

The Stritmatter law firm where I work is one of the most prestigious in the region. We are known for handling huge, giant, big damage cases. And yet… And yet, I still try MIST cases. Proudly.

Here is where the struggle comes in and the reason why this diary was almost not written.

Because “great” trial lawyers win gigantic verdicts. They don’t win more than zero in a MIST case. Right?

Let’s be real and honest.

Look at our Trial News magazines. Look at the books by top lawyers that we read. Do we as a profession trumpet our wins and losses of MIST cases. No. We don’t. Other than the occasional surprising win, we silently bear the lowball settlements, the demoralizing losses.

Many lawyers will hang up the phone if someone calls asking for representation in a MIST case. Even though we know that people are truly injured in low speed collisions all the time. Jurors easily buy into the insurance companies' "no crash no cash" defense. And usually disregard what the injured person and their doctors have to say.

I am part of a law firm. I owe them my fealty. My actions reflect on them. If I take on a MIST case and lose it, I impact the reputation of the firm. Because if great lawyers get great big results. Then by logic poor low/defense results means poor lawyers. Right?

Our braggadocio based trial lawyer culture is eating away at our souls. We don’t take small cases to trial because we worry that we will lose and be seen as losers. We only talk about our wins because we can build up our reputations and get more and better cases. Our fear of being branded as a member of the trial lawyer caste that handles small cases, has made it easy for the insurance industry to offer peanuts to those who deserve so much more.

There is another factor involved. A bit more selfish. We’re still being real right?

I am a trial lawyer. I want to grow as a trial lawyer. Good big cases settle. About once every three years, an opportunity comes around where I can try a fantastic big case. So what happens in between. Do I go to trial college. Do I read more books.

Heck no.

I try cases. Small, big, supposedly too tough to win - anything I can sink my teeth into. I will try it. Even when it is a case that is like the one starting tomorrow. A case that seems impossible to win. And may well be.

This diary was almost not written, because I worried that my firm should not suffer loss of reputation from my writing about trying an uphill MIST case. The fact that it is being written is a testament to their strength and belief in me. And to the cause of right to jury trial that we stand for.

This entry is derived from an excerpt in my trial diary of Sept. 2012.

Photo: the best picture of vehicle damage in the case. Thank goodness the finger shows us where to look.

Flashback.

I've been a lawyer for about three years.  The other lawyer has been mean to me since day one.  Today we are arguing in court.  I win the motion.  The judge signs the order.  There are no copy machines in the courtroom.  We need to take the order down to the clerk's office, copy and then file it. 

The lawyer is holding the order.   Once we are out of the judge's earshot, he says something derogatory.  I trail him to the copy machine.  He puts the order on it.  Drops in some change.  Makes his copy.  I am waiting for him to get out of the way so I can put my change in.  He won't move.  I reach over to drop the change in.  He snarls at me not to touch the machine.  Tells me to give him the change and he will do it.   Says he doesn't trust me.  Am so stunned that I hand over the change.  Careful to make sure I don't touch his fingers.   

Welcome to the world of nasty lawyers.  They are not the norm.  Thank heavens.  But they most certainly do exist. 

Two decades have passed since the Mr. You-Can't-Be-Trusted-To-Make-A-Copy episode.  Here are some of the strategies that have helped me to deal with awful opposing counsel:

1. Severe all emotionality with the lawyer.  You are the professor watching this interesting/silly specimen flail about in its petri dish.
2. The louder they yell, the calmer you grow.
3. Don't trust anything they say - document everything.
4. Be gracious, sweet, kind, even solicitous in your writings.  Instead of saying:  Dear Bad Attorney you are a mean jerk.  Say - Dear George - thank you so much for your most recent letter.  I greatly enjoyed reading it.  There are a few areas where you were a little mistaken in your beliefs.  Here, let me spell them out for you.  I know that sometimes it is hard for you to keep these details straight.  I'm honored to be able to help you do your job better.  If you need my assistance again in the future.  Then by all means.  Simply ask.  I'm happy to help.
5. Protect your client.  This is what motions for protective order are for.   Dealing with rude lawyers is an occupational hazard that we need to be prepared for.  But our clients are entitled to be treated with dignity and respect.  Fight for them!
6. Protect your staff.  Pick on me all you want, but leave staff out of it.  If the line is crossed, ice the lawyer.  They will have to communicate in writing or via our direct phone line.
7. Keep a sense of humor. 

Speaking of which, I leave you with a true story.  You will wonder who the awful opposing counsel was in this one.

Super Flashback.

I am a teenager paralegal for my mom.  We are in trial on a terrible "war of the roses" type divorce case.  There is a break in action.  The courtroom space is small.  The husband's lawyer needs to walk behind my mom's chair to get to the door.  She has a big square briefcase on the floor by her chair.  He walks by and kicks her briefcase.  Apparently to move it.  My mom, in all of her 5'2" glory, comes roaring up out of her chair.  And socks him.  Hard.  He pushes her back.  They are tussling in the middle of the courtroom.

The judge comes back on the bench.  He hasn't seen this but somehow has heard of it.  Probably from his staff. He scolds the two boxers.  The trial continues.

Yes, indeed. 

Photo:  Mom and me at Marshall Park 2012

Trial day 3.

Swim to consciousness through Nyquil fog.  Can almost breathe through both nostrils.  But there is a weight on my body.  The left over pall from yesterday. 

The tooth brush whirls.  Do not feel like full-speed-ahead-charge!-Karen on the White Stallion.  Somberly put on black combat uniform and head back out into the desert.

In the hall outside the courtroom there’s a desk area.  The clients are with their two children.  This has been planned because the sitters could only cover for two days.  They are cute blue eyed little sweethearts.  Drawing pictures of houses with crayons.  I’ve offered for them to hang out in my hotel room.  They can play in the pool and watch tv.  The parents will switch off as each other testifies. First the kids want to see the courtroom.

Court starts up.  Judge A asks if there is any other matter.  I say, your honor, I would like to introduce my client's children.  They will be out in the hall but wanted to come and see what a courtroom is like.  Judge A breaks into a big smile and greets each child.   She is kind and sweet.   How old are you she asks.  The five year old holds up one hand, waves all her fingers and giggles.  The little boy bounces up with shiny eyes and grins that he’s ten.

Barely a second passes.  Frowning the defense lawyer, Keley, announces she needs to register an objection to the children being in the courtroom.  That she has children too, but a courtroom is no place for them.  She doesn’t want them distracting the jury or acting inappropriately and causing disturbances.  She’s really probably thinking that we intend to parade them in front of the jury.  I guess to get them to like us more.  Which they absolutely wouldn’t.  Like us more that is.

Judge A pauses.  In a level voice says the courthouse is open to the public and she won’t impose additional restrictions on this family.  She leaves the bench to wait for the jury.  The children and mom leave.  I lean over to Kelley and hiss in a voice choking with fury:  that was absolutely inappropriate, unnecessary and rude.  The judge comes back in (probably catches me call Kelley rude) and we begin.

Now I didn’t tell you this, but yesterday, Kelley accused me of violating a motion in limine and asked the judge to caution me (which she did).  During opening I apologized for being a bit under the weather, not my usual perky self and didn’t want them to feel this was a reflection on my belief in my client’s case.  The MIL says we are not to express our personal beliefs as to the merits of the case.  Kelley is so petty about this, that it  takes my breath away.  With a sigh, Judge A says technically it does violate the MIL.  I can tell she chalks this up to big bad city lawyer cut throat positioning. I know this because she  says so.   I don’t like to be clumped together with Kelley on this.  But I am.

Back to today.  Kelley’s negative trial karma is going to catch up with her. 

We finish the plaintiff expert physician's testimony.  Then recess.  Judge A calls us into chambers.  I’m thinking – uh oh, did we lose another juror (yesterday we lost the alternate on condition that if we lost another we would go to a jury of 11).

We sit down.  The judge closes the door.   Then absolutely royally in no uncertain terms rips into Kelley for her comments about the kids.   This may well be the single most eloquent powerful dressing down of a lawyer I have ever seen in chambers.  Judge A is brilliant.  In that moment I love her.  My eyes well and overflow.   I can’t help it.    She is championing the moral outrage that coursed through my body when Kelley rained on the little children’s parade.  Judge A hands me her tissue box.  Kelley says she apologizes, that she has kids too and that’s why she raised the issue in the first place.  Then her voice falters and she sheds a tear and also is given a tissue.  I feel no sympathy for her.  Not that I don’t like her.  In all of our interactions outside of the courtroom she is really one of my favorite defense lawyers.  No nonsense, straight and true.  But she is willing to risk collateral damage when she goes for the jugular during trial.  The way she disrespected the family was really crappy and wrong.

We are ushered back outside, the judge and jury on our heels.  The plaintiff is on the stand and it is back to business. 

The rest of the day is summed up like this.  Yahoo!!! 

I wish you could have seen the plaintiff testify.  I wish you could have seen Kelley’s awful cross.  I wish you could have seen the wife make my eyes water just a teeny little bit.  That perfect place where nothing overflows. 

We rest.  Defense calls a five minute witness who adds absolutely nothing.  Court adjourns.

But wait.  It is not quite over.

We must come back to do instructions after the arraignment calendar.  An hour later at 5:00 we are back in court.  (Note:  this will take us two hours.  Judge A really goes above and beyond).  The judge has gone to take off her robe.   I have my laptop and ipad out with each set of instructions.  Kelley is shuffling piles of papers getting set up.

 Crash!!!!! Bang!!!! Hahaha. 

I turn around. Whaaaaaaaat!

Kelley is lying on the ground on her back.  Half way back to the spectator bar. Roller chair sidewise.  Three foot long elegant legs sticking in the air.  She rolls over and springs up.  Jokingly asks me to represent her.

I smile and laugh with her.   I really do like her. I do.  I really do. 

But inside, am thinking. 

Poetic justice strikes again.

Photo:  Judge A's courtroom in Wenatchee, WA

The defense is perpetuating the testimony of its defense medical examiner for trial.  The doctor is answering the defense lawyer's questions.  And then this happens:

Q MR C:  This says, "JANE DOE is present

3 for complete physical exam, also pap smear, fasting labs."

4 MS. KOEHLER: All right. I'm going to move to

5 strike. This is ridiculous.

6 MR. C: Why? You just -- You just asked the

7 doctor about --

8 MS. KOEHLER: You are talking about pap smears.

9 This is a car accident.

10 MR. C: She is here for a physical examination,

11 counselor. This is just what you -- You had the doctor just

12 read to page 45 of the deposition regarding what she was

13 going to tell her doctor.

14 MS. KOEHLER: Like I said, I'm going to move to

15 strike. You are being rude. And you are also testifying,

16 so --

17 MR. C: I see.

18 MS. KOEHLER: If you have a question, ask a

19 question.

20 MR. C: Counselor, I'm sorry that you feel like

21 I'm being rude. I was --

22 MS. KOEHLER: Talking about a pap smear is not

23 appropriate in a car accident case involving the neck.

24 MR. C Okay. Then I will omit that reference,

25 and let's start over.

Photo:  video still  from the defense medical examination by two doctors.

There is a school of thought that you should not object during trial.  Just let the bad questions go where they will.   So the jury won't think you are trying to hide something by objecting.  Maybe so.  Maybe not.

But in a video perpetuation deposition the court rules on the objections ahead of time.  And then the videotape is edited.  The jury isn't dragged through the technical details.

In this example, the defense lawyer is used to leading his witnesses by the nose through their depositions.  Enter one irritated plaintiff lawyer (moi).  Here is how it starts off.

11   Q    So when you use the term "volitional control," you
12        mean something that you can verify?
13   A    Correct.
14                MS. KOEHLER:  Object to the form of the
15        question.  Leading. 
16   Q    Is that correct, Doctor, that objective refers to
17        something that can be verified?
18   A    It does. 
19                MS. KOEHLER:  Same objection.  Double
20        leading.

Now this could go on all day.  Instead, after suffering through a bit more of this, I try to deal with it in one fell swoop:

 9               MS. KOEHLER:  I'm going to -- I'm going to
10        object and I'm going to ask for a side bar right now. 
11                A, every question you ask is leading.  The
12        reason that I notice this is because all the Doctor is
13        doing is saying "yes."  There's no explanation. 
14                So I'm trying not to object to every single
15        question that you ask, but everything that you've
16        asked is a leading question.  And so I can just make a
17        global objection to all the leading questions that
18        you're asking, but then you're not going to be able to
19        cure them if you choose to do so.  So I'm not trying
20        to be difficult, but that's the clue, is if the Doctor
21        is just saying "yes," it's a leading question.  And
22        there's just, it's one after the other, after the
23        other, after the other.  So tell me what you want me
24        to do.
25                MR. C:  I want you to make your objection
                            15
 1        to each question if you think it's objectionable and
 2        tell me the basis for it.
 3                MS. KOEHLER:  All right.

Sigh.  The defense lawyer wants me to object each and every time.  And I do so.  With nicely rolled eye balls.

I told my kids a lot of stories when they were little.  Pictures were good and well.  But what they really liked was when I acted out the characters. 

In trial opening is the opportunity to tell the story.  There are no rules that say we need to read it and be boring.  Over the years I have ben a bus, a cross walk, and other various objects or people when I've told the opening story.   But look what happened in this case.  The judge was not used to having a story told with quite as much dramatic flair. 

What follows is an excerpt from my trial diary:

Trial day 3:

There’s a lot of muscling around today.

Opening statement and we’re going for the gusto.  Kevin (my law partner) starts off and he IS chrysotile – an asbestos fiber.  He does a splendid job.  He doesn’t act light hearted.  He is after all, a very dangerous and deadly fiber.  He explains how  industry has know about the danger of asbestos for over a hundred years and yet how Domco Texas decided to use it anyway.   t’s my cue and here is what happens (verbatim):

Ms. Koehler:  My name is Jim B.  And I was born in 1942 in Seattle, Washington.  My entire family lives here.  They are from here.  In 1960, I graduated from Ballard High School.  I wasn’t a perfect person, I have never been a perfect person, I would never tell you I’m a perfect person.  But I have  lived a full, full life…to a certain point.  I have been married before I married Colleen...

Ms. Loftis:  You honor, I do have an issue for the court.

The Court:  Want to state your objection?

Ms. Loftis:  Sure.  I think it is inappropriate for counsel to put herself in the place of the plaintiff, especially in light of the rules – the rulings in this court pre-trial.

The Court:  All right.  Let’s focus on what the evidence is going to show, counsel, in opening statement.

 Ms. Koehler:  Your Honor, I am –

 The Court:  Please proceed with what the evidence will show.  (stern knitted brow look)

 Ms. Koehler:  That’s fine.  Turn to the jury and start over.   There are three wives before me.  My name is Colleen---

 Ms. Loftis:  Your Honor, I think it is inappropriate for the same reason.

The Court:  Sustained.  Let’s just talk about what the evidence will show, let’s address damages.  (stern knitted brow look)

Ms. Koehler:  Yes, your Honor.  Turn to the jury and start over. Mr. B graduated from Ballard high school in 1960…

Last night when I decide to take on the dead man's persona to tell the story, I consider whether the fact that I will be channeling a dead person will draw an objection.  I’ve previously researched this issue and there is no law that says I can't.  This morning, Judge H tells us (right before the jury comes in), that he does not like side bars [where the judge and jury talk outside of the jury's presence about technical issues].  Instead he likes to deal with objections for the most part in front of the jury but he will not allow speaking objections. 

What he doesn’t advise, is that he doesn’t allow anything other than the word "objection" to come from my lips.  I am terminated with a "look" in the midst of asking for a sidebar.  I am fully prepared to challenge defendant’s grounds for the objections.  But the judge’s look is unrelenting. 

So I change from the dead person.  And morph into the widow which is shot down yet again.  Finally the jury watches me morph to pure storyteller.  Is this a good or bad thing I wonder, that they can see me change personas.  Snap.  Like this. 

Afterwards – as in at 4:00 pm after the jury has been excused- the judge permits me to make a record.  I explain the “golden rule” that defense is ballyhooing about, doesn’t apply.  I didn’t put the jury in the shoes of the decedent.  I stepped into them myself.   

The court says:  “I sustained the objection because there’s a fine line between presenting the facts and arguing.  It is a fuzzy line but this court generally gives parties a great deal of leeway and in this case the court did in terms of making a lot of emotional arguments.  The court felt that by putting yourself in the first person that you crossed the line and converted an opening statement into an opening argument and that is the basis for my ruling.” 

At which point Kevin the Asbestos Fiber pipes in - so you’re fine with us using the first person in closing - to which the defendant objects and the court says he will entertain briefing on that.

The clerk sends an email on Thursday.  Our trial starts Monday.  Or it is supposed to.  This case has been scheduled for trial for over a year.  But SNAP!  Just like that.  A criminal case pushes its way past us.  This happens in November.

Fast forward.  We are now set to start the same trial June 4.  After a six month delay.  Everyone is ready to go.  Some of the witnesses have booked flights and hotels.  But wait.  SNAP!  Just like that.  We are bumped again.  By another criminal case.    We are now supposed to start this whole thing over again in October. Supposedly.

Now you may be wondering.  So what.  A little bit of inconvenience.  What's a year in the big scheme of things.  Well, let me tell you what has to be done everytime a very large case gets delayed like this.  In fact - keep this list.  In case this happens to you.

1. Have melt down holy cow moment
2. Ask the clerk to ask the court if there's anyway to save the date
3. Hear that there's no way because criminal settings go first
4. Talk to the other attorneys and paralegals and assistants for all the parties and whine and try to come up with a solution for the court
5. Give a solution to the court
6. Have the solution rejected by the court
7. Have paralegals stall the witnesses who are getting ready to come to town until there's final confirmation that the date is completely gone
8. Ask for a hearing with the court to discuss possibilities, probabilities and logistics
9. Be told by the clerk that the court is in trial and cannot have a hearing for a week
10. Continue to stall witnesses who have scheduling questions
11. Read email from the clerk giving possible future court dates
12. Read emails from defense attorneys saying they cannot do the earlier date, they can only do the later date
13. Gnash teeth, whine, groan, moan and continue to have holy cow fit
14. Ask the court why we can't start the trial a week late to accommodate the criminal trial
15. Be told that another criminal trial is set for the first week of July.  Our trial is too long and would cause the criminal trial to start late (Oh poor them.  Join the crowd).
16. Realize we are trapped at both ends by criminal trials
17. Field worried messages from paralegals that witnesses want to know what is happening
18. Finally tell paralegals to tell witnesses we are being bumped again
19. Try to have zen calm yoga like moment.  And fail
20. Eat an entire costco cinnamon roll as a snack
21. Push papers around on desk
22. Look at our trial flow chart of all the witnesses we spent weeks scheduling.  It will now have to be completely redone.
23. Take Nala potty
24. Call my three girls - Alysha put on yogapalooza at the UW today.
25. Stew
26. Have paralegal cancel three weeks worth of hotel reservations (trial is out of the area)
27. Decide can now go to visit Noelle's new college.  Book last minute flight.
28. Look at box of three exhibit binders in the corner of my office.  Decide they need to be moved.  Don't move them
29. Send email to opposing counsel to finish his edits on depositions so we can have the films finalized.  Not that it matters now.
30. Have lunch with friend Jeff Donchez who reminds me that plaintiff lawyers are "glass is half full kind of people."
31. Email with friend Pat LePley - book lunch for June 4 which is when we would have been in trial.
32. Walk past our "war room" filled with our trial exhibits, blow ups, and equipment.  Seethe.
33. Come to the house to meet Cristina and Noelle.  Move two chairs (they moved them) to my office.  Kiss them goodbye
34. Give Catherine my other two office chairs.
35. Take Nala potty.
36. Commisserate with Anne (my wonderful paralegal)
37. Buy 5 dark chocolate with almonds candy bars to support Paul Whelan's son's crew team
38. Meet with John (my other wonderful paralegal) about getting things done on another case
39. Realize there are two other trials set earlier in October.  I will be log jammed
40. Hear wierd noise.

Nala is retching.  Grab garbage can to put under her mouth.  This does not go well.  She's running.  I'm chasing her around the office with the garbage can.  Trying to be nice but not wanting bad stuff on the carpet.  Finally corner her.  Substitute her water bowl for the can.  Hold it in front of her face.  She is heaving.  But I'm shocking her at the same time.  Tell her - it's okay.  Keep waiting for the moment.  But just like with the hiccups - I appear to have scared her out of them.  The moment passes.

For both of us.

Photo:  Nala's face says it all.

An attorney asked me to help try a case a week before trial.  Day one I arrived with a notice of appearance.  The defense lawyer objected due to "unfair surprise."  Overruled. 

It was not a complex trial but the defense lawyer struggled.  Mightily. 

After the good (for us) verdict came in this is what the jurors said.  They had a really hard time with how bad the defense lawyer was.  They felt very sorry for the defendant for having such a poor lawyer.  Closing argument was so awful they could not even "bear to look" at her.  They had to make extra sure they didn't rule against the defendant because of counsel.  So they tried to even things out.   Thankfully they were able to give us a good verdict but this left a permanent impression with me.

Here are the top 10 reasons I'd rather try a case against a good defense lawyer:

10.  Don't have to mute normal style and appear almost blase.

9.  Don't have to dumb down technique to avoid seeming too smooth.

8.  Jurors appreciate an evenly matched fight.

7.  Judge gets less exasperated.

6.  Easier to predict timing which helps with scheduling witnesses

5.  Don't get bogged down (bored) as much with foundation and procedural issues

4.  Hate waste of time and it can become difficult to hide impatience (eye rolling syndrome)

3.  The jury may decide it needs to do that lawyer's job.

2.  Makes the defense look like it doesn't have the resources to hire decent counsel (even though an insurance company is footing the bill); and most importantly

1.  It is way more fun to try a case against a really good lawyer.

P.S.  This isn't meant to scare new lawyers away from trying cases.   Everyone has to start somewhere.  But for heaven's sake if you haven't done this enough to be good at it - bring someone to trial to help.  Your clients deserve it.

P.S.S.  Maybe it isn't completely nice to say that I'd rather not try a case against an inexperienced or poor attorney.  But the truth will set you free.

Photo:  Reason why unable to discreetly roll eyeballs.

We used to write hundreds of boring (sounding) letters in a case.  Now we write hundreds of boring (sounding) emails and the occasional letter.

There is no court rule that says we need to be boring (sounding) when we communicate with opposing counsel. 

The first draft of this sample letter was written by my highly competent paralegal John.  It simply said:  Enclosed for your consideration are sample jury verdicts for similar cases.

Here is the less boring and more fun version:

Dear R&M: 

Before our settlement discussions went kaput, you mentioned that a defense offer would likely be roughly in the $45,000 to 60,000 range.  My highly polite response was something along the lines of: balderdash.  However, to engage in further due diligence, we undertook a jury verdict/settlement search of cases where a young male died without dependents.  Here are the results.

Once this case gets back on track and we eventually comply with the court’s order to mediate, you may want to keep these figures in mind - even though they remain on the low side.

Please consider this communication to be governed by ER 408.

Very truly yours,

Karen

Here are reader's suggestions for more "P"s to add to "The Ps".    Lawyers have a pretty intense vocabulary.  I had to look up a couple of these. 

Pushy – Not settling for the defendants’ BS answer, but working for the truth.

Positive – Believing in your clients, their cause, and your skills to bring justice and right a wrong.

Prescient – Understanding what is going to happen, and the likely issues in a case, ahead of time so you can prepare your client and your case.

… I was just reminded, FORCEFULLY, that we both left out the most important P – PARALEGAL.

M.A.  Chattanooga TN

My Father always stressed the "rule of P's":

Prior Planning Prevents Poor Performance

C.V.  Biloxi Mississippi

Progressive, Potential, Pleasant, Penal, Perpetual, Perplexed, Pronounce, Paraphrase, Precise, Punctual, Perfection, Performance, Placate, Presume, Plan, Practice, Pressure, Predispose, Platitude, Pacify, Postulate, Punishment, Preliminary, Parliamentary, Protocol, Pretense, Proud, Psychological, Plethora, Prime, Prime-time, Placement, Predominant and for the far out – Paranormal or am I just being Pissy.

K.M.  Seattle, WA

Polarizing the Case, ala Rick Friedman.

D.C. Hackensack, NJ

Procrastination and Pessimism– two things we have to learn to confront, and overcome

K.T.  Washington, DC

"Power” --- not just “power point”.  Claim your power and go with it. 

L.S.  Seattle, WA

How’s about “practicality” and “persistence” (a little different than “perseverance”)

A.G.  Roseland, NJ

 "P" - perspicuity: plain to the understanding because of clarity and precision of presentation;

"P" - perspicacity:  The power of seeing clearly; discernment; insight.

B.W. Seattle

What about Potential?  I think so many young lawyers, especially young female lawyers, feel that the practice is so daunting, given lack of female mentors, lack of opportunities, and what feels like a lack of support.  I think more young lawyers (female and male) need to recognize that they have so much potential to do better, to succeed, to make a difference—they just need a little reminder at times.

I have been fortunate to have great mentors (though, no female attorneys at my firm—I was the first female associate in some time, and I am now the first female partner at my firm) who saw potential in me and pushed me to succeed, but some days, I definitely needed a reminder that I was strong, capable, etc. 

R.H.  Spokane, WA

Patience. We need to be patient with our clients, and in the execution of our litigation strategy.

Prayer: sometimes when it looks like you are about to lose a case or when the demands of running a business get overwhelming, a little pause for a prayer to your God or Higher Power provides comfort that you are not really all alone.

S.B.  Delaware

So there you have it. 

It's been too long since the last trial.  Since the last argument.  Since the last fight.  The defense lawyers have been well mannered lately.  Which is all good and well.  But not that exciting.

This deposition excerpt is from a case where dude was on his phone when he ran down my angel client in a cross walk.  It was with one of my favorite adversaries.  He is hard headed and tenacious.  It is fun to bump heads with him.  And to do so with a smile.

Deposition excerpt:  

Scheild, J. Dep Transcript.pdf

I wrote this blog then lost the whole blasted thing.  Tis sits about how my iPad experience is going.  Humbling. 

Am deep in the world of free apps.  Used Zite to create a magazine of things that interest me.  some of which already don't and are destined for the delete key. Now have an alarm clock that tells the weather.  My favorite tho is the kissing kitties am going to send them to my girls.

Still cannot figure out how to cut and paste. So much for editing documents and creating them which is what I really need and miss the most,  according to the blogs laptops still cannot be surpassed by the iPad in that arena. So don't feel too bad.

Took a cool picture of nancy Pelosi at the reception tonight in iPhone,  emailed it to myself,  figured out how to say it on iPad,  but cannot crack the code of how to get it on this blog.  Maybe it is the platform that is causing the problem. 

Finally have decided biggest problem of iPads s a work stations s that it is ergonomic sky poor,  a you have to bend your head too much to work on it. 

Once upon a time, a dude entered an intersection and decided to turn left.  Problem was, there was another car (lawfully) coming on through.  So he crashed into it.  Since the female driver had a green light, anyone who drives a car knows - the dude should have yielded right of way.

Enter the defense lawyer.

I file the complaint.  The defense lawyer says -dude is not at fault.  I bring a motion to kick out the bogus defense.  The lawyer then threatens to ask the judge to sanction me for bringing a "frivolous" motion.   I ask his supervisors to remove him from the case.  They don't. 

This is all part of the insurance company's plan.  It is called Deny.  Delay.  Defend.   It is also called scorched earth tactics.  Designed to wear us plaintiff lawyers down.  Unless we have DNA that acts in reverse when confronted by adversity.  In which case... Bring.  It.  On.

Here's the transcript from the hearing.  You will be dazzled by the brilliance and logic of the defense lawyer's reasoning.  Or maybe not.

MR. SCISCIANI:  Your Honor, Counsel for the

                                                                  17

 1         plaintiff is correct, this is a case about a car accident

 2         in which the defendant, Matthew K, my client, was indeed

 3         turning left and that's when the collision occurred.  The

 4         scope of undisputed facts, that's it.  We don't have any

 5         evidence submitted by the plaintiff on Summary Judgment to

 6         close the door on contributory fault.  She seeks an order

 7         characterizing our client, Matthew K as negligent, and

 8         the sole cause of the accident.  She seeks an order

 9         characterizing her own behavior as blameless.  What the

10         plaintiff asks for by their Motion for Summary Judgment is

11         provided for in a jury instruction, which underscores the

12         fact that this is a question of fact for the jury.  The

13         jury instruction specifically says, and it is quoted in its

14         entirety on Page 10 of our brief, it says, "Statute

15         provides that a driver intending to turn to the left within

16         an intersection shall yield the right-of-way to any vehicle

17         approaching from the opposite direction that is within the

18         intersection or so close thereto as to constitute an

19         immediate hazard."  This right-of-way, however, is not

20         absolute but relative.  And if we look at Washington case

21         law --

22                       MS. KOEHLER:  Your Honor, I ask that he

23         complete reading that.

24                       MR. SCISCIANI:  I'd be happy to.  The entire

25         jury instruction is submitted in our brief:  "And the duty

                                                                    18

 1         to exercise ordinary care to avoid collisions at

 2         intersections rests on both drivers.  The primary duty,

 3         however, rests upon the driver turning to the left, which

 4         must be performed with reasonable regard to the maintenance

 5         of a fair margin of safety at all times."

 6                 If we look at the case law, even the cases relied

 7         upon by the plaintiff, there's cases -- there are cases out

 8         there, there's one in particular, the case that we cited in

 9         our opposition, that involves a pedestrian who was lawfully

10         in a crosswalk with the walk signal.  The question of

11         whether that pedestrian should have looked to see if there

12         was traffic that was not going to yield was submitted to

13         the jury.  The court underscored the fact that those issues

14         are questions of fact, they're provided for in the jury

15         instructions, and certainly in this case we recognize that

16         our client had the obligation to yield right-of-way.  The

17         question, then, is, did the plaintiff have an

18         opportunity -- we've all been cut off at intersections.  We

19         can't just steamroll through and plow into the left turning

20         vehicle, get out of our vehicle and blame it.  It's not

21         strict liability.  The oncoming driver has an obligation. 

22         If the jury finds that she had an opportunity to avoid this

23         collision, then there's contributory negligence.  Now, it

24         may be a 90-10, it may be an 80-20, may be 70-30, may be

25         95-5.

                                                                    19

 1                 The point is, on summary judgment without any

 2         evidence submitted by the plaintiff on the issue of

 3         contributory fault, the door stays open.  The record is

 4         devoid of evidence that she took evasive action.  As the

 5         moving party on Summary Judgment, seeking to close the door

 6         on contributory fault, and to seek an order from this court

 7         as a matter of law that her behavior, her driving was

 8         lawful and blameless, she has to come forward with the

 9         evidence to merit such a characterization.  There's no

10         evidence -- I've already read before the court the

11         statement from the witness that the vehicles collided. 

12         They shed no light on evasive action.  In fact, it's devoid

13         of any evidence that Ms. L swerved or braked.  From

14         the photographs, it could be reasonably deduced that these

15         cars would not have collided, notwithstanding my client's

16         failure to yield had some evasive action been taken.

17                 Now I'm not going to purport to be an accident

18         reconstructionist, and I'm not going to purport to have

19         been there at the accident to characterize what exactly

20         happened.  That's for the witnesses, that's for the jury. 

21         That's all I have, Your Honor.

22                       THE COURT:  Counsel?

23                       MS. KOEHLER:  Your Honor, did you see the

24         photographs of the vehicles? [head on impact]

25                       THE COURT:  Yes.

                                                                    20

 1                       MS. KOEHLER:  The defendant has, on a

 2         comparative fault claim, which is an affirmative defense, the

 3         burden of proof . There is no attempt other than speculation to say

 4         that this person, Miss L, going through a green ball

 5         on a green light behind another vehicle did anything wrong. 

 6         For this reason, we believe that Summary Judgment on these

 7         facts should be granted.

 8                       THE COURT:  All right.  Partial Summary

 9         Judgment is granted on liability.

10                       MS. KOEHLER:  Thank you, Your Honor.

Diagram:  By the defendant in his deposition.

Suitcase is packed.  We are out the door on the way to the airport. Cristina says - did you see the weather report.  Um, no Robert said it was in the mid 70s.  Seems a cool front is blowing in so minus that by at least 10.  I've packed shorts sandles, and a short skirt to give my talk in.   Oh great.

We land, get the rental car.  And drive in our red Chevy Aveo thru the Marie Antoinette style mansions lining the road to the historied Biltmore where the convention is.  Get lost but finally find registration.  They don't have me down.  Which is fine because my law partner has become ill.  So I check in as Paul and Cristina takes over Mary Elizabeth's spot.  Back to our car we go to the Bohm's house.

Robert, Georgia and their doggies welcome us to their charming villa.  We talk.  We eat. 

In the middle of it all, Cristina says Whitney Houston just died.  I think she's joking but not quite.  She isn't.  We look at FB and Twitter for more details.  Am on verge of tears.

Sarah the new associate joins us.  More talking.  More eating.  Finally cannot stall any longer.  It is 10:00 which means it is 11:00.  Which means haven't figured out a speech for tomorrow or done a powerpoint. 

Which means, must play with ipad.  Haven't done much with it yet.  Just got it.  Noelle started loading it with apps last week when I saw her.  Now it is Cristina's turn. 

Have you heard of Talking Tom. 

Why no, daughter I haven't.

You haven't. Really

No.

So up Talking Tom comes.  And we start talking to him.  And then we have him become us.  And well, there must be trial uses for such an app.  We investigate for 15 minutes. Click here to see the fruit of our efforts: 

http://www.youtube.com/watch?v=X9WCvE5-aRo&feature=youtu.be

Yes ladies and gentleman, this ipad app has enormous trial potential.

But for now, it's time to get down to business.  Must figure out PPT for speech.  So can focus all attention on Robert's chocolate chip pancakes in the morning.

If you are walking in a marked crosswalk with a pedestrian light on.  With friends.  And a guy in a Honda is talking on his cel and decides to turn left.  And mows you down.  The car strikes you.  You land on top of the hood and then fall down and strike the pavement.   And you are taken by ambulance to the hospital.  And end up bruised and hurting all over.  Then you my dear friend need to see Dr. Sean Ghidella.  Because according to him - you will be healed and back to normal within three months.  Boom.  Just like that.

That's what he testifies to today in a binding insurance arbitration proceeding.  Under oath.

Now there is an exception.  If you have a pre-existing susceptibility to injury the three month rule won't always apply.  But never fear.  It is highly doubtful you are alive if you suffer from the kind of pre-existing condition that Dr. G is talking about.

In this case, the 34 year old woman had scoliosis which is an abnormal curvature of the spine.  Some of us develop or are born with it.  We can be a bit out of whack because of it.  She also was having some spine discomfort due to a situation at work in the months leading up to being hit.  But was any of that a pre-condition that could have made it harder for her to heal.  No way.

Dr. G says - if you were on top of a building and fell eight (8) stories and had orthopedic injuries and survived - that would be a preexisting condition.

So the good news is the woman did not fall eight (8) stories before being hit by the car.  She should have healed in three months.

You know what a defense attorney does with that kind of testimony.  Um hum.  Attacks the woman's credibility.  All of her injuries (after the magic three months) are due to something else. 

Moral of the story:  if you are hit by a car and haven't fallen eight (8) stories before hand, then go see Dr. G.  He will heal you in three months.  Boom.  Just like that. 

Postscript:  The Arbitrator - Scott Holte - did not have quite as much faith in Dr. G as the defense.  In ruling for the plaintiff here is in part - what he said:  I do not find Dr. Ghidella's report and testimony on the causation issue is persuasive.  Specifically I don't find that Dr. Ghidella's opinions have a sufficient factual foundation...

.

The plane lands in the Tri Cities.  Am on way to rental car.  Defendants pull up in a work truck.  They are picking up Doug - the defense lawyer.  They motion for me to come on over.  They want to give me a lift.  How sweet is that.

Pull self into smelly dirty diesel.  Am wearing jeans so doesn't matter.  All good.

They are being very kind.  Charming.  Yucking it up with me.  Hoping I'll be sweet and kind during deposition.  Yuck it up right back.  Arrive at the office of friend lawyer, Jay Flynn.  We're going to conduct the depositions there.

Our client, Candelario is a quadriplegic.   He fell on a job site in the middle of nowhere.  There was no safety anything in place at all.  To make matters worse, he lay on the ground for hours waiting to be rescued.   These fellas bid a job, subcontracted it out, and thought all they had to do was rake in the profit.  Didn't realize that under the Stute case, they actually had an obligation to make sure the work site was safe.

Here are some excerpts from a deposition that proves yet again - honey works better than vinegar.

safetydepo.pdf

Alarm goes off at 6:45.  Slap it off.  Get up at 8.   Must get to bed earlier than 2:30.  Must rush.  Suitcase is already packed on the floor resting on top of a towel.  Nothing can touch the floors.  We are in the new house … just barely.  Won’t bore you with the details of how a trial lawyer orchestrates a house move.  Let’s just say it is intense.  And it isn’t over.

Throw on workout clothes.  Hair gets scraped back into ponytail.  Not a high glamour day.  Truck computer bag and purse down two flights of stairs to the very downstairs and put them on the counter.  Walk back up the two flights of stairs. Open the door to the girls’ room.  Nala is sleeping with Cristina.  Pick her up.  Her nails can’t touch the pristine floor.  Kiss Cristina goodbye.  Carry Nala down two flights of stairs.  Her legs do crazy bicycle motions in all directions.  Manage not to drop her. 

Make it to the bottom.  Put her in laundry room which has a moving blanket on the floor.  Feed her.  Wait.  Put on red leash that has been half chewed through.  Pick her up.  Carry her out the door.  Put on shoes.  Go down the stairs.  Walk up the hill.  She promptly does her business.  Doesn’t spy the dog down the street so am spared her theatrics.  Walk down the hill.  Open car and put her in the kennel.  Go back into house. Retrieve purse and bag.  This is going to be our new routine.  Minus eventually  the carrying her part.

Get salad and raspberries at Whole Foods.  Drop her at doggie daycare.  Get to office by 8:40.  Do not panic.  Put oatmeal in bowl with hot water.  Will microwave it in a minute.  Go to my room.  Eat raspberries and watch the newest film footage of our client.  Super.  Grab Mike.  Need to put both day in life films on a DVD.  Need all witness interview films.   Need to pull stills out of the collision animation and the surgery animations.   How many copies – 13.  He will handle.

Begin pulling together the mediation letter.  Have facts and figures.   Need to add humanity and structure.  It absolutely has to go out today.   

Anne arrives.   Three urgent projects.  She blanches.  First, on the M/S case – Tom the defense lawyer won’t let us take perpetuation depositions of doctors.  Need to bring a motion for order shortening time and a motion to permit them.  Drafted the motion and declaration yesterday.  She needs to do the rest.  Okay.  Second, on the same case, I did the trial brief, general voir dire, jury instructions, and motions in limine yesterday.  They need to be filed today.

Aren’t those due next week?

What?

Trial is Jan 9 aren’t they do the 3^rd?

Thought they were due today.  Crap.  Spent the time I could have been doing this mediation letter getting all of that done yesterday…

Well, the good news is they’re done early…

Crap.

Okay so there are only two urgent issues.  The second is this demand is going to be a beast.  All the exhibits need to be hyperlinked.  She leaves in a daze.

9:30 realize have forgotten oatmeal.  Go to kitchen.  It is pretty pasty looking.  Add more water.  Stick in microwave.

Take it back to room.  Not particularly delicious.

Put on Do Not Disturb and begin typing.  Email pops up – need to approve a motion for reconsideration.  Read it, add one sentence.  Thank you Garth and Paul.  Actually about two hundred emails pop up before  will finish.  Deal with the urgent ones.  Like the court clerk asking for status of upcoming trial.  Am email addict.  Love and adore it.  Cannot live without it. 

Hurry. Hurry. Hurry.

It is 1:40.  Realize missed lunch.  Delicious Whole Foods salad is in frig.  Go to kitchen.  Don’t have time to eat a salad. Box of donuts from the freezer are sitting on the table.  Cut off half of one and eat the frosting pretty much off of it. Sugar high is immediate.

Bounce back to office.  Anne comes in.  Deposition motion paperwork  is done.  Discuss who needs to be served with the mediation CD/DVDs.  Doesn’t know how to hyperlink.   Send an email out for help.  John the hyperlink master is on vacation.  Patti offers to do it.  Crisis averted.  Continue to type.  Gotta get it done.

Breathing is quick and shallow.  50 minutes later letter is finished.  It has to be.  Print it out and mark out location of all hyperlinks.  Anne takes it.   

Run across street to gym.  Am filled with adrenaline before even begin.  Hour whizzes by.   Drive home.  Take off shoes.  Up the stairs.  Gustavo the plumber is caulking in the bathroom.  Kick him out and take a shower.  Throw on clothes.  Finish packing.  Hurry downstairs.  Jon the genius builder needs to go over a few things.  Look quick.  Looks great.  He is the only reason am still sane.  Must leave.  Must hurry. It is 4:15.  Need to leave for the airport.  Flight is at 5:45 and it is rush hour.  

Step outside door.  Zip boots.  Dig in purse for keys.  Not there.  Dig again.  Nope.  Unzip boots.  Run upstairs.  Look in puffy coat pocket.  Not there. Look in bathroom, under bed, in closet.  Run downstairs and then back up again.  Like a hamster.   Am going to miss plane.  Am crazed.  Borderline panic.  Can draft a complex electronic settlement demand in a day but cannot find blasted keys.  Jon and Gustavo begin the search.  What the heck.  Fifteen minutes later Gustavo finds them.  In the kitchen. 

Rush back outside.  Zip boots.  Hop in car and hit the road.  Make it to the viaduct.   It is raining and traffic is at a standstill.  Call Anne.  Mike is still burning computer discs.  They’ve called Fed Ex and will drive to the airport to drop them off before 6:30.  If the traffic doesn’t get them first.  Tell Anne will call her back in 15 to report on whether will need her to reschedule the flight since may miss it.

After 20 minutes traffic breaks free.  Make it to the airport.  Barely.  The flight has been delayed half an hour.  Hurrah.  There are only a dozen people in the security line.   Grab a naked veggie burrito from Qdoba.  Cookie and water from Dish D’Lish.  Check email.  Load into plane.  Two and a half hours later unload in L.A. into the waiting arms of my sister Susan (President Pooh).

Probably around 11:00 will start preparing for the deposition.  Make that 11:30.

Photo:  Could not take picture of donut - already ate it.

The air starts crackling.

My mom, Mary Fung,  has come to watch opening.  Her smile stretches the width of her face.  She is wearing a polyester blue and white teeny striped suit that I distinctly remember from the 1970s.  Over a blue pair of Nike shock sneakers that I used to run in.  Hair pinned up in its forever bun.  She looks fairly adorable.  Everyone in the courtroom smiles back at her. 

 Am thinking – uh oh.

She tells me to comb my hair.  Offers me a comb.  Remind her the hair is not able to be combed.  She starts picking at my jacket.  There are strings hanging.  She starts to dig out a pair of clippers from her purse.  Tell her this is the style.  It is meant to unravel.  She wrinkles her nose up, scowls and makes a sound that sounds like this:   ugh.   Ron (co-counsel) comes over and says, just focus on opening.  Am thinking – no way.  Have to keep eye on mom. 

She begins to take cosmic readings.  Tells everyone that I don’t believe in her powers.  That doesn’t bother or stop her.

Tells our client she will heal him.  Tells the bailiff and clerk  their I.Q.s aren’t bad but she can help them improve.  To put this in perspective, she previously determined my brother’s dog Izzy had a higher I.Q. than George W. Bush.  Mine, if you must know, was quite high at birth.  Then my uncle Timmy dropped me on my head when I was two and that was that.  I’m pretty sure Izzy’s is higher than mine as well.

Her favorite thing to do in court is to sketch everyone (she’s really quite a good courtroom artist).  She then does their “readings.”  This is good because it keeps her occupied and I don’t have to worry that she’ll break out the crystal pendulum and start twirling it around.  It aids in her ability to make predictions and decisions.  Actually, probably should worry but have determined it to be a useless exercise.   The woman is incorrigible. 

Judge Hill returns.  The jury files in.  She reads the preliminary instruction.  The ritualistic words wash over me.  Mind grows still and focused.  Eyes close even though they physically are open.  This is what I say to myself:

This opening is for our client.    Let me speak the right words in the right way for him.  Give me calmness of spirit to do what needs to be done.  Give me strength for him.  Let the jury see the truth.  I am nothing but a conduit.  Let me do a good job for this man.

Don’t repeat it like a mantra.  Just let it cycle through once.   Breathing slows. Can feel the air as it rests in chest.  Breathe more slowly so it can rest more deeply.  Down to the center of where it needs to be.

Judge H finishes and says – please turn your attention to Ms. Koehler.

Walk back out, face the jury, and let it Flow.

After openings are over, check on mom.  She has made drawings of everyone.  There are mathematical calculations and little notes by all of their faces.  Instead of a jury consultant, we have a jury psychic.  She has to leave to babysit for my little sister.  She’ll share her findings with me later.

Walk her out to the hall.  Kiss her goodbye.  She says she is proud and gets a little tearful.  Am truly touched.  Watch the little polyester suit walk to the elevator.  Go back in.

Drawing:  Clark v. State jury by Mary Fung Koehler.

Note:  This is an excerpt from my trial diary day 2 Oct. 2011.

There are some aggravating people in this profession.  That suits me just fine.  Being nice has its place.  But it is fun to wrestle with opponents.  

Today am spammed with a brochure.  Touts a two day seminar on civility in the profession.  Sorry to say this pretty much brings up gag reflex.  Here's what it says:

In this intensive 2-day program we will strive to create a retreat-like seminar* to engage in a dialogue about civility. After we explore characteristics of civility, we will discuss the costs of incivility, the benefits of civility, the foundations of civility, and strategies to foster civility within our personal and professional lives. In addition to traditional lectures and presentations, this immersion seminar will include interactive and creative exercises.  *To facilitate a relaxed atmosphere please wear casual clothing and unplug from laptops, emails and phones.

So not only do they want us to become more civil - we have to unplug. 

Where's the fun in any of this. 

Nala is not a sweet, docile, obedient pooch.  Thank heavens.  She would be boring if she didn't pull the stuffing out of her toys.  If she didn't throw herself at the windows or doors when people walked by.  If she sat at my feet gazing up adoringly.  Waiting patiently for me to bestow attention.  Instead of throwing tantrums.

Sure there are lines that shouldn't be crossed in our profession.  No bad words or physical punches for example.  But a two day seminar on civility.  Thank you but no thanks.

Photo:  Nala preparing to fight Mr. Tiger.

We meet Dave the Bailiff first.  Through emails.  We are cooling our heels.  Waiting to see if our trial will start on time.  Instead of ignoring us, Dave gives us up to date emails.  Plus he has a sense of humor.

We are in trial for three weeks.  During this time we get to know Dave the Bailiff and his smile even better.  But there's someone next to him up on the bench.  Julie the Clerk.  She seems quiet but it is all an act.  She has a droll sense of humor.  We like both of them.

Each night after trial we get a special email from Julie.  It attaches an updated index of the exhibits.  Every night.  I've never had a clerk do this before.  It is amazing. It is wonderful.  Each night can't wait to get the email of exhibits from Julie the Clerk. 

So much goes on during trial that could never go on without bailiffs and clerks.  Dave and Julie not only get the job done.  They go that extra step.

Photo:  Julie the Clerk.  Dave was hanging with the jury.

Closing.pdf

This powerpoint was used in closing statement today during trial. 

The expert witness is making my blood boil.   Direct exam is a pre-rehearsed script.  The defense attorney reads a question the expert spews back an answer.  They don't come right out and say so, but the inference is the client isn't working because either: a) lazy or b) hoping for lawsuit lottery.  They don't have to be so nasty. 

Hand is on client's arm.  Whisper words of kindness from time to time.   Keep mask of pleasant person firmly on face.  Do not roll eyes.  Realize foot is tapping.  Become still.  Like a falcon.

The judge turns to me and says the magic words:  cross examination?

Even though you cannot see what physically is going on, this transcript gives you a sense of the drama of cross examination.  The first two battles involve seemingly simple questions.  First, want him to tell us how much he charged to work up this case.  Second, want to get him out of the witness chair to list the injuries on a white board.  

He balks at both simple requests.  And off we go. 

Click here to read the transcript:

 Skilling cross.pdf

The defense has filed motions asking the judge to keep evidence out of the trial.  Garth has written briefs to oppose the motions but they need more factual detail.  This means need to dig through half a dozen depositions and a six inch stack of documents.   Am taking an expert deposition at the same time by phone on a different case.  Finish it and hang up.  Phone rings  pick up repeat.  Paralegals running in and out.  Am known for being able to multi-task.  They talk, I answer while typing.  Try to be polite and make eye contact as well. (Piano lessons as young kid appear to have resulted in ability to type while doing just about anything else). Cristina wants to know what is happening for lunch.  Decide should feed our team so tell her to order Thai.  Conference call comes on.  Cristina brings in lunch.  Ask her to make a do not disturb sign for my door.  Probably do this once a year.  Like having door always open.  Am working on the second briefing project, eating phad see ew and helping plan seminars for WSAJ by phone.  Cristina walks into room and plasters window-wall with do not disturb signs.  Start to laugh.  I just meant one.  

Have big giant lawyer crush on David Ball.  Have followed him around the country listening to his speeches like a faithful groupie.   So when Cristina stumps me with her question, decide to pose it to him.  Here's what he says.

Excellent question, though few people seem to be interested in the answers or even think about them.  So thanks for asking it.  The questioner was quite perceptive.

I've looked into this in some depth and over a period of years.  There are different reasons people sue -- reasons which plaintiffs are consciously aware of only to an extremely limited extent.  The most common of the reasons tend to combine with each other. In rough approximate order of occurrence, they are:

1.  First is the need for some kind of completion.  After any kind of wrongdoing is done to them, humans need to know that the other shoe has dropped-- by means of an apology or remorse from the wrongdoer that the wronged person can believe (think Yom Kippur -- or a murderer's remorse, the latter of which usually gets a capital to impose a life instead of death sentence), or revenge, or punishment, or compensation, or something.  One reason Jesus made such a big deal about turning the other cheek is that letting go is unnatural: so turning the other cheek is almost impossible and thus leaves the other shoe dropping up to the wrongdoer, which in Jesus's time -- not to mention ours -- was extremely unlikely for the wrongdoer to take care of; in societies of starkly unequal levels of power, the powerful never need to apologize.  Result: unavoidable anguish of incompletion for the victim, which JC wanted to alleviate.  The drive for the other shoe to drop is one of the strongest human drives we have -- because it is a survival necessity.  Lineages that did not share the drive for the other shoe to drop were unlikely to survive the forces of evolution.  If you wrong me and I do nothing about it, I am in greater danger of you wronging me again. "Other shoe dropping" means that there's less likely you'll wrong me again.  Eons ago, "wronging me" meant harming my survival chances by taking food, mate,  shelter, whatever, since that's all there was.  The drive for other-shoe-dropping is usually driven by anger, but can also be driven by a desire to begin the healing process (which often cannot start until the other shoe drops).  Needing the other shoe to drop is common to all human beings, and hence common to almost everyone who sues.  (For more on this, and one way to use it in trial, see pps. 82- 85 in Reptile.)

2.  Second is to try to make something good come out of something bad.  "I don't want this to happen to anyone else."  It is a way for victims to deal with loss or irreparable harm.  It makes the harm seem less of a loss.  A basic human drive -- one that is deeply inbred over the eons of evolution -- is that we have an automatic, unconscious, and almost irresistible drive to turn catastrophe into something good (the Phoenix rising from the ashes -- Katrina -- 9/11 new buildings -- "the only thing wrong with being knocked down is not getting up again" -- "turn adversity to advantage" -- etc.).  This drive follows every great community/national calamity, and many people feel it as they recover and look back on individual disasters.  Suing to prevent the same harm to others is one of the only ways individuals can do it when only an individual is the victim.  This drive is astonishingly common among plaintiffs; it's one reason that so many plaintiffs resist confidential settlements -- though they will usually do so for enough money.  (For more on this drive and one way to use it in trial, see pps. 85 - 87 in Reptile.)

3.  Third is the need for money for the victim to support himself or his family -- meds, money to live on, etc., depending on the case.

4.  Fourth is opportunism.  Not as rare as we might want.

5. Fifth: The plaintiff's need for the community -- in the form of a jury, the legal system, a judge, whatever -- to acknowledge that the plaintiff was wronged.  This is almost the same as #1, and can be impossible to distinguish from it, though there are differences.  

6.  Sixth is a desire for importance -- people see in movies, books, TV shows how much attention a plaintiff can get.  This is probably not enough on its own, but certainly accompanies the other reasons.  On the other hand, it may well be a lot more intertwined with some of the earlier reasons than we think. 

7.  Something to occupy the time.  When injuries take away much of  a person's ability to occupy herself with things she used to do to fill in her life, a lawsuit becomes a pursuit per se -- a passion, almost like a serious hobby, an artistic pursuit, or some other passion-driven activity.

8.  Obsession.

Obviously all these have strategy and moral ramifications for trial lawyers. 

Obviously indeed.

Am in Louisville, Kentucky preparing to give a speech at their annual convention.  Two people have randomly greeted me in passing and said "you have a hard act to follow - all the speakers have been great."   Should have known this would be prophetic.

Do not like to give recycled speeches. Do not like to memorize anything.  Need to FEEL in order for the words to flow well.   Lately have been interested in exploring how to reach jurors regardless of their political or religious leanings.  Accessing shared core human values.  So the topic is a bit obtuse.  Particularly where here, am not teaching how to do something in particular - like give an opening or closing statement.

Cristina has come along on the trip.  She is one of the reasons am so interested in this topic.  Her political beliefs are the opposite of mine. Yet love her to pieces and we rub along just fine.  Ask her what is the number one question you would want to know as a juror.  She answers:  why do people sue.  Why indeed.

This is how the speech starts.  Ask the audience to give non-lawyer/non-legal answers to the question: why do people sue.

Several attorneys valiantly try to answer in regular human being terms.  But can't.

• Because our system of justice has determined that ...  No. That is legal.
• To stand up for their rights...No. That is legal
• It is a legitimate way to obtain revenge and pay back... Better.  But still legal.

The audience looks expectantly at me for the answer.  Surely I have it.  But no.  Don't give them the answer because this is an obtuse subject.  Plus - don't know the answer.

Continue through the presentation.  Can feel that the overwhelming response is...uuuh.  Many are likely playing fantasy football on their computers, reading the news and checking email. 

The problem is that am not giving "a magic bullet."  Don't have a solution that if applied will win all cases.   

Travelled across country to give a speech that no one gets.  Blech.

Cristina sits through the speech (and confirms  later that fantasy football was indeed being played).  Ask her if anyone gave the right answer to the question - why do people sue.  She says no.   Ask her what the answer is.  She says:

Because they can.

Photo:  Before the speech (they were too polite to leave in the middle of it).

She opens the door before I knock.  I walk up the three pristine wooden steps and am inside.

Please, she says, and motions for me to take the royal blue recliner.  She sits near me on the couch.  There is not much bric a brac.  No little tables cluttering the narrow path that runs down the side of her slender home.  It is a white rectangle.  I can see the bedroom at the other end.  The kitchen is in between.  On top of the refrigerator is a pottery piece of three very green and large smiling frogs.

The home is perfectly kept.  I can picture her cleaning it.  Very slowly.  Every day.  Not just for company.   She sits on a couch under the picture of a lion that fills most of the wall.  The remaining space is taken up by the picture of a tiger.

It is warm out and she is wearing short sleeves.  She is so thin that the bones of her arms seem to be dressed in sheer wrinkled pieces of the finest cloth.  When she speaks – softly and slowly -  her arms move.  The wrinkles of cloth float and settle upon them.  Float and settle. 

She is not my client.  Her son has died.   I am meeting with a woman whose son has died, who doesn’t know me, and who isn’t my client.  The thought circles through my mid a few times. She cannot be my client.  In Washington the law doesn’t believe that parents of killed adult children suffer a loss that should be recognized in a courtroom.  (I represent the Estate which doesn't include her).

We settle deeper into our cushions.  She shares the memories that she can.   The saying goes that there is no greater sorrow for a parent, than to survive the death of a child.  We should go first.  We would willingly go first.  It is unspeakably terrible when we do not go first.

After awhile it is time for me to leave.  She takes longer to rise than I do.  I go to shake her hand.  She wraps her hard but soft arms around me.   I hug her back carefully.  And touch my hand to the dainty ridges of her back. 

Nala likes me to do her bidding.  She takes me for her walks.  She puts her head or paw on my foot when we are sitting here in the office.  We will have staring contests which she almost always wins before I give up and blink.  Am okay with that. 

Could have chosen to follow the instructions from the doggie obedience school (who had Nala trained perfectly for an entire month before we undid everything).  But was happier with letting Nala's own perky personality rule the day (and us).

In deposition am often confronted with defense lawyers trying to be The Alpha.  Don't like this.  Unlike Nala, am not interested in fostering their personalities (though some are certainly quite delightful).

This is where the money spent for doggie training comes in handy as can apply lessons learned.

In this deposition excerpt, the nice defense lawyer from Perkins Coie wants to make a speaking objection which is a NoNo.  In order to prevent this behavior must say No each time it occurs or is about to occur.  This must be done firmly and with stern eyes.  Yelling should be avoided as want to reinforce that it is the behavior that is bad not the doggie (person).  Positive reinforcement should come though probably not with a treat.  A smile will do.

Here is the excerpt: 

To the form.pdf

Photo of Nala in Kirkland by Cristina Greig

Was at a retreat recently where we took a personality test.  Several of the questions dealt with things like spontaneity.  Are you the type to make plans in advance or go with the flow.  In other words - can you jump on a plane with a moment's notice or are you the stodgy detail oriented uptight plan everything in advance boring type.

Hello.  Don't consider myself boring.  But this is what it takes to go on a vacation with my kids.

Step 1.   Go online and look at three sets of school calendars to find available common window of time. 

Step 2.   Look at office calendar.  At least 5 to 6 months in advance.  Block off the dates.   The better practice is to block off the calendar at least one year in advance.  Otherwise, court dates and deadlines will fill it up.  Courts won't move dates unless you already have tickets or reservations.  And even then, have ended up losing/truncating a vacation due to trial which is a real bummer.

Step 3.  Figure out where you're going then make the reservation.  Usually this involves having the eldest child act as travel agent and doing the booking.  Expedia can be helpful.  Am Ex has a travel agent service that can be helpful.  Whatever you do - don't do it yourself.  Been there done that and always screw it up somehow. 

Step 4.  Don't give it another thought until about two weeks before it is time to go.  And then, only because kids are getting excited and remind you that a trip is coming up.  Sporadically make lists in head of things that should get done.  But don't get them done.  For example, there was the time waited a little too long to get the kids' passports.  Am not going to tell you what had to happen to make it work - but admit to various levels of hysterics along the way.

Step 5.  With a week to spare, write down the list that has been hovering around in your head and do the absolute essentials.  Somehow.  Or have your kids do them...which is a safer bet.  Send emails back to whoever helped you make the reservations.  Tell them you lost them and need them again.

Step 6.  Disregard the suggestion that working during a vacation isn't a good thing.  Figure out how or if you will be able to be online.  Do whatever it takes.  If yes, then breathe.  If no, then mentally have a conniption fit because there's nothing else you can do.  Am not kidding about this - not working on vacation is traumatic. 

Step 7.  Figure out if you have a bathing suit (or other essentials).  If not don't even think about taking an afternoon off to go to the store.  Won't happen.  Instead, at about 2:00 a.m. go online like I did last night at VictoriaSecrets.com.  Amazon will work too.  And don't use standard shipping.  You have to pay the extra ten bucks for next day service or it will arrive after you leave.

Step 8.  Don't send a "notice of unavailability" to the lawyers and judges in all of your cases.  Whoever invented that.  If you're out of town and someone schedules something and won't take no for an answer when your staff or the voice mail says - AM NOT HERE - then what's the worse that can happen.  Will a court get mad at you for not responding to a motion that you didn't get because you were out of town.  Actually had best friend file a notice of unavailability when she was on pregnancy leave and the other attorney still hauled her into court.  A jerk will be a jerk.  Paper or no paper.

Step 9.  As the due date approaches, think about all the things you haven't gotten done for the trip.  Then don't think about them as will drive yourself nuts. 

Step 10.  Close the office door behind you when you leave.  Channel your inner-bohemian.  Go with the flow, be in the present, enjoy.  And Do Not think about all the emergencies that will greet you when you return. 

Photo: Cristina's legs (mine are much shorter) from one heck of a good vacation

This is my take on today's deposition of an expert engineer for the state.  Actually this is way better than how the real witness performed.

click here.  http://youtu.be/juZq059TH1U

I wrote about the botox effect in October 2010.  Intuition is partially based upon micro-expressions. I worried about being handicapped in trial.  What if a juror or witness had been  facially frozen.    The article concluded:  "This all means that I better embrace my wrinkles because I need a jury to believe that I am me."

Well, now comes an article that should raise a few eyebrows (or not).

Social psychologists are finding that people who have BEEN injected are less able to read emotions.  They believe this is because we identify emotions in part by mimicking each other's facial expressions.  When we can't mimic, we are less able to feel our own emotions. This can potentially interfere with our ability to empathize.

Yikes!  That settles it.   Come hither dear wrinkles. I promise not to botox you.

Photo:  untouched

The "thin skull" or "egg shell" plaintiff stems from this English case.

“If a man is negligently run over or otherwise negligently injured in his body, it is no answer to the sufferer’s claim for damage that he would have suffered less injury, or no injury at all, if he had not had an unusually thin skull or an unusually weak heart.”

Dulieu v. White and Sons,  2 KB 669 (1901).

The rule means an injured person should recover full compensation for all harms and losses that proximately result from a defendant's tortious act, even if some or all of the injuries might not have occurred but for the plaintiff's pre-existing physical condition, disease, or susceptibility to injury.  The primary policy reason for this doctrine is that as between the innocent victim and the negligent tortfeasor, the latter should answer for their negligent actions.  Without such an instruction, the inference or, indeed, the overt argument might prevail that the injured party's predisposition to injury was a defense for the defendant

Legalese can get quite confusing at times.   So, here is my way of explaining this rule:

Humpty Dumpty was a bit fragile

But her little issues didn’t stop her from being agile

Until one day somebody quite careless

Knocked her down causing severe distress

Perhaps she might have eventually cracked

Even without that great big whack

But guesses don’t count when applying the law

You take your victim as you find ‘em

When you cause them to fall.

Your loved one is killed.  You cannot function.  You cannot stop crying.  You cannot stop thinking about your beloved.  Your world seems like it is ending. 

On top of this, there is an awareness that someone may have caused this death.  Your loved one was killed not because of war or because of an Act of God.  Death came too soon because someone did something either negligently or on purpose.   And it is not right.

You are not a greedy person.  You do not want to "make money" off your beloved's death.  But you want whomever is responsible, to be held accountable.  You want the world to say:  your loved one's death was not in vain.  Your loved one was not invisible.  Your loved on was worthy of being treated with dignity, respect according to the law.  And so you come to see a lawyer.

Here are some tips for conducting the first meeting with a potential new client in a wrongful death case:

• Do not start off the meeting by saying:  "I'm sorry for your loss" and then immediately start talking about the incident.
• Do not take copious notes during the meeting
• Notice who comes to the meeting - is there a family support structure in place
• If family or trusted friends come, learn their roles and connect equally with them
• Connect to the survivor by being a human being. 
• Figure out what is going on emotionally to your best ability
• Do not judge the survivor based upon how they present this first meeting.  Most are still heavily grieving and highly anxious.
• Use discretion on whether to ask routine intake questions.  There's no rule that says the first meeting needs to be the only meeting with a new client.
• Do not create anxiety.  For example, I often tell the survivor not to worry about signing a retainer agreement that same day.  To take it home, read it and then call with any questions or feel to come back to the office.
• Do not start talking about the facts of the incident or anything unless the survivor wants to talk about it or hear you talk about it.
• Discuss the eventual need for a probate and personal representative - not in great detail, but so the survivor can decide if they would like a dual role in the event of litigation
• Ask to see a photo of the deceased so you can get to know them
• Do not let family members see autopsy photos ever - even if they think they want to.  If they've seen them before contacting you, encourage them to get counseling
• Do not try to act as a mental health counselor.  Don't tell them what they should or shouldn't be doing in the grieving process. 
• Ask them to provide all bills so you can deal with any debt collectors or insurance issues
• If criminal proceedings are ongoing, get the name of the prosecutor and any victim's advocate to follow up with later. 
• Do not make them fill out a detailed intake form on the spot.  Let them take it home if they wish.
• Do not start talking about complex legal issues - particularly those related to convoluted wrongful death statutes (Washington State has nasty archaic wrongful death laws).
• Do not place a monetary values on the loss of life.  There's a time and place for everything.  This is never the right time.
• Take your cues from the survivor.  Some will want to stay for a long time and talk in great detail.  That's okay.  Oblige them.  But don't expect them to remember what you say.  Be prepared to later go through everything again.   Others won't be able to stay longer than half an hour.  That's okay too.

 READ part 1 and part 2 first.

From: Sims Weymuller   March 10, 2011 1:35 PM

Dear Karen,

It doesn’t matter to me what a lawyer is wearing, I just think we ought to show more respect to one another.

I did answer your question, just not as you phrased it because: (1) as phrased it didn’t make sense to me; and (2) it posed a false choice.  Is your point that, on the rarest of occasions—indeed one I have never seen—where the lawyer is faced with a choice between pursuing the client’s best interest on the one hand, and acting civilly on the other, the lawyer should act uncivilly?  If so, I suppose I would agree.  I just don’t think that happens very often, if ever.  I do, however, think that lawyers use that claim as an excuse for uncivilized conduct all the time; I just don’t buy it.

Can you provide examples where your duty to your client was inextricably opposed to your duty to act professionally or civilly?

Thanks,

Sims

From:  Karen Koehler  Mar 10, 2011, at 2:56 PM,

Dear Sims:

It has been so long since I’ve heard from you that I’ve completely lost track of our discussion.  It was highly enjoyable while it lasted.  But unless you have a pretty excuse (like the flu that I had), I consider the delay to be disrespectful.  Therefore, I decline to continue.

My best regards to you in your quest for civility. 

karen

From:  Sims Weymuller   March 10, 2011 3:05 PM

Seriously?

From:  Karen Koehler Mar 10, 2011, at 3:06 PM

Dear Sims:

My civility comes with teeth.

karen

From:  Sims Weymuller  March 10, 2011 3:17 PM

Too bad, I was curious if you had an example.  Oh well, whatever peels your potatoes, I suppose.

From:  Karen Koehler Mar 10, 2011, at 3:22 PM,

Dear Sims:  The article had to come to an end eventually.  This is a nice punchy way to end it.

karen

From: Sims Weymuller March 10, 2011 3:31 PM

karen,

I don't really think what we have is article worthy. I thought we would eventually get into a real discussion about the objective merits of or faults with civility (versus the personal approach). I don't think our readers would learn very much from what we have so far.

Sims

From:  Karen Koehler  Mar 10, 2011, at 3:35 PM

Dear Sims – I can understand your feelings.  Which is why I continue to completely disagree with what WSBA is doing regarding its civility mission.

karen

From: Sims Weymuller March 10, 2011 6:10 PM

Ha!  Touché.

 (Photo:  Cristina's mouth not mine).

Sent: Thursday, February 10, 2011 11:39 AM
Subject: WSBA Professionalism Article

Hi Karen,

It was great to speak with you today about this article.  I love your idea of exchanging emails to establish the body of the piece.  As we discussed, you will take the first shot and we can parry and thrust from there.

Cheers,

Sims Weymuller

From: Karen Koehler February 10, 2011 12:00 PM

Dear Sims:

What right does the WSBA have to tell us we need to smile when dealing with opponents.    If we aren’t violating the rules for professional conduct by doing something dastardly – like lying – why can’t we be stern.  Or down right grumpy.  Since when has society wanted attorneys to be nice and friendly  as we go off to fight for our clients’ rights.    As you can tell, I don’t think much of the WSBA’s new “civility” initiative.    I’m a trial attorney.  That means I’m a warrior.  As long as I behave professionally, it shouldn’t matter if I’m being sweet or not.

From: Sims Weymuller February 10, 2011 3:24 PM

Dear Karen,

Thanks for the email.  For starters, the WSBA is not telling you to do anything, at least not in the sense that the RPCs require you to do things.  The RPCs are the floor, we are talking about the ceiling or, better yet, the sky.  We are asking: to what do we aspire as professionals?  With regard to civility, our goal is to encourage the members of our profession to conduct themselves in a fashion appropriate for an officer of the court.   Nobody said anything about smiling and being sweet; that’s a straw-man argument.  You can and should fight for your client, just do it with some measure of decorum.  As members of the Bar, we are the keepers of an entire branch of government.  We must treat the system, and each other, with respect.

Now, you say that “[a]s long as I behave professionally, it shouldn’t matter if I’m being sweet or not.”  Agreed, but what in your view is professional behavior?

Sincerely,

Sims

From: Karen Koehler  February 10, 2011 7:20 PM

My dearest Sims:

Thank you for your exceedingly thoughtful email.  I appreciate the time you devoted to crafting such a remarkable reply.    Truly the poeticism employed – the floor, the ceiling, the sky – absolutely divine. 

I beg your permission to voice … hmmm,  how can I delicately put this…  my feelings.  Frankly… well I guess I shouldn’t be too frank... wouldn’t want to offend anyone...  Let me put it this way.  I wish WSBA was spending more energy on the critical funding failures that may result in the collapse of our courts.  Instead of trying to become Miss Manners.  I hope you understand that I say this with all due respect. 

Be that as it may.  Because WSBA has made civility a priority initiative, I suppose I am willing to be drawn into a polite fencing match with you over the joys and benefits of being an absolute darling during the litigation process.    Let me answer your question about defining “what is professional behavior”, by asking a question (thank you in advance for indulging me in this regard):

Is it better to: 1)  act professionally and be truly uncivil; or 2)  be professional and act uncivilly.

I look forward to what will surely be an intriguing response.  Thank you for your kind courtesies in engaging in this dialogue with me.

karen

(to be continued...civilly or not is the question)

Unlike what we see on t.v., silver-tongued, brash, flashy, charismatic lawyers, don't always do well in trial.  Jurors assume we have been trained to manipulate and persuade them.  They guard themselves against us.  By gosh – they aren’t going to fall for those darned lawyer tricks!

The insurance companies have figured this out.  Companies like Allstate keep stables of "in-house" lawyers on their payroll.  Though some of them are skilled.  Most of them are not.  But don't take it from me.

After trial, one of the jurors who did not make it onto the panel contacted me.  He worked for Microsoft and asked if I would have breakfast with him.  He wanted to know why I didn't choose him to sit as a juror.  We talked for an hour about his thoughts on voir dire.  He admitted it was probably good for my side that I did not select him.  He also said:  “On one hand I wanted to be on the jury.  But I was concerned because I didn’t want to sit through a trial with a defense lawyer who was so poor.  I couldn’t bear the thought of having to listen to that.    I felt that I might overcompensate for her, feel sorry for the defendant, and that in an attempt to give him a fair shot I would lean over to his side too much.”

That's right.  This juror was worried he would rule for the defense to make up for the defense lawyer being so awful.  And indeed she was.  Halted, mumbled, disjointed words would softly fall out of her mouth onto the floor.  Simply excruciating.  But at the end of the day the jurors didn't hold her performance against her.   She was so terrible she became credible.

Photo:  This look may work for a 70s disco party - but not for trial.

We set the case up for disaster if we build it way up and ignore what the defense is going to do to it.    This would be like a basketball coach only having the team practice offense. 

Instead, the coach studies the opponent.  Maybe sends out a scout.  Watches film.  Devises strategies.  Has the team practice then implement them. 

We've all heard the saying -sometimes, the best offense is a good defense.

Opening statement is similar.  We don’t want to spend too much time being defensive.  That will give too much credence to the other side. 

But we need to anticipate the defense.  We need to be upfront and tell the jury about our case weaknesses.  To prevent the defense from blowing them out of proportion.

I'm breathing through the mouth.  Because the nose is stuffed.

In the middle of four days of depositions in Vancouver WA. Get sick the night before I leave Seattle.  For the first day pretend I'm just fine.  This works only in my own mind.

We are in a large windowless court reporter's room in a converted machinery shop.  Three tables are fashioned together.  At one end sits the witness, the court reporter, me and the main defense lawyer Nic.  Next to me is my wonderful co-counsel Gordon who has flown in from Wisconsin.  Everyone else piles around down at the other end as far from the germ blower as they can be.  There are anywhere from seven attorneys on up in that room, plus insurance folk, risk managers, the guardian.

These depositions have been scheduled for months.  This means - can't be sick.  The court reporter brings me a giant box of tissue.  I steadily plow through it, tossing the crumpled sheets one by one into the black garbage can around the corner to my right.

The first day I feel pretty good "not" being sick.  The nose is a faucet but otherwise, no problem.  Decide to get some sudafed that evening.  No luck - in Oregon you need a doctor's prescription.  Thanks meth dealers.  Get some nyquil, pick up some bad Chinese food, go for a short run on the treadmill and call it a night before eleven.  This isn't a good sign.

Day two.  Wake up to snow that doesn't stick.  The non-sickness is still hanging around.  Nose isn't pouring quite so heavily.  Instead bad stuff appears to have taken residence inside my head. 

Go back to the deposition dungeon. Three first responders are being deposed in the morning.  Feels like I'm underwater.  Sometimes my ears are plugged.  When it comes time to watch the video transcripts, you'll be able to hear me ah-chooing.  It is miserable.  Can't think very well.  Slog ahead.  Suspect tomorrow its going to be worse.

Day three.  Yep, it's worse.  It's so bad that am not going to blog about it other than to say.  Good thing hotel is next door to court reporters.  Because have to come back to room to lie down every time there's a break. 

Day four.  Two more to go.  Actually feel a little better.  But not much.  Finish them off, then somehow manage to drive three hours home.  Hit the bed.  And recover over the weekend.

For the past two and a half weeks, I was in trial.  Just in case a juror might have found this website, for the most part I stopped blogging.   Instead, I wrote daily trial diaries.  Those were sent to my family, friends and colleagues.  They were not posted publicly on the internet.

I think that's the safest way for a trial lawyer to deal with their blog. 

Now that trial is over (and yes we did well), I thought you might like to see a few pictures.   This was Steve Hay's case.  He graciously invited me to try it with him.  We had a great time.  It is always a pleasure to try a case with a good lawyer.  Plus see all those papers.  He took care of all that. 

The two defense lawyers were Andrew Stanton and Todd Bowers.  They represented two different people.  This is the second trial I've had against Andrew. 

The WSBA will be pleased with me.  I was quite civil.  Sure, there were a few times when Todd in particular was a bit naughty.   And we had to be hmmm... stern... with a few of his witnesses.  But otherwise both lawyers were professional and good to work with.  They also had a nice sense of humor.

The front cover of our bar association journal announces a new series:  “Raising the Bar:  The promise of Civility in Our Profession.”

My skin is crawling and not because I’m a total beast.

I am all in favor of being civil whenever possible.  But sometimes it isn’t.  At least not for trial lawyers.  Our duty is to help our clients get a fair shake.  Rules require that we behave.  But since when did I need to focus on being kind and gracious to the other side.  Especially when they are trying to do bad things. 

Should I smile sweetly as they tear into my 16 year old client who is crying on the witness stand. 

Should I be affable when they ask the father if he is posing for a picture that shows him lifting his daughter into a wheelchair. 

Should I be polite when they say my airline captain pilot (and four other witnesses) are lying about the condition of a doorway.

Should I have be nice and accommodating when the defense lawyer acts like I am his employee and tells (not asks but tells) me to put his exhibit up on my projector so the jurors can see it. 

Excuse me.  Being polite is one thing.  But if I was to be sweet, affable, polite and nice all the time – I’d be a terrible trial lawyer!

Jurors don’t want us sniping at each other.  But they also don’t expect us to be loving friends.  We are opponents. 

Bad manners are unfortunate.  Some attorneys should definitely go to charm school.  But there is danger in the misconception that the goal of the legal process is to make and foster friendships.   After all, “Nothing is to be preferred before justice.”  Socrates.   Lawyers have a duty to act as “guardians of the law” in order to preserve the existence of a free and democratic society.  If we are not advocates first and foremost, then it is irrelevant whether we are polite or not.   

Plaintiff trial lawyers are used to fighting for the underdog. There is nothing civilized about letting bullies crush the weak.   Litigation is often by its very nature, a battle.  It is one that can and should be fought with the appearance of grace and dignity.  With all due respect dear bar association, I intend to be aggressive, relentless, passionate, effective and a tireless advocates for the sake of my clients and the cause of justice.  My politeness comes with teeth.

The temptation of rebuttal is to make absolutely positively sure the jury is told the right version of the case.  To have the last word and correct the defense.  But the jury wants to get going.  They are ready to start deliberation.  They’ve listened to the lawyers for long enough.  They don’t want to hear a rehash of what they already have been told.

Here are some of the mistakes lawyers make in rebuttal.

1. Take notes of everything the defense is saying.  If you have someone to help you, fine.  But if you are taking verbatim notes, you are missing the bigger picture of what is going on in the courtroom.  How is the jury reacting.  Do they look happy and pleased with the defense.  Are they withdrawn.    Plus what are you going to do with all your notes.  You don’t have time to analyze them.  As soon as closing is done, you are going to have to make your rebuttal. 
2. Act busy and disinterested during the defense closing.  Perhaps you are whispering with your co-counsel or client.  You rattle papers or start packing up the files.  The jurors are fine with a battle, but they don’t want you to be rude and disrespectful.  Plus it isn’t fair – they have to quietly sit there.  They expect you to do the same.
3. Use a line item approach.   You address each ridiculous, rude or incorrect statement by the defense.  You restate the case facts to reiterate that you are on the right side.  By now the jurors have heard it from plaintiff’s side in opening, during testimony, and during closing.  Hearing it for the fourth time isn’t going to make a difference.   Will this redundancy hurt the case?  Perhaps not.  But do you want to the jury to walk into the jury room thinking how boring and repetitive you were?  Not exactly a big positive motivator.
4. Attack the defense lawyer personally.  Yes, it is hard to resist the urge especially if they are cruel or lie.  And there are always exceptions.  But generally, ad hominem attacks will only make the jury disgusted with you.
5. Spend too much time.   The jurors have heard closing and have just about made up their minds.  Unless you are a great magician – there’s not much you can do to change them.  The last thing you want to do is drone on in a rambling unfocused manner. 

Really, once closings are over the only thing that will now move jurors are other jurors in the deliberation room.  This is your last chance to empower the jurors who are on your side.  You want them to fight hard for your client’s case.  The best thing you can do is to help give them momentum, energy, and passion. 

Here’s how I do this.  I sit quite still during the defense closing.  I completely concentrate on the lawyer and the jury.  I will have a small two inch sticky pad.  I will occasionally write a word or phrase on it.  As the closing continues I will replace the note with a winnowed version of the note and so on until I end up with at most five points.  I then will reduce it to three points.  Usually I can then reduce it further to one point but I don’t sweat it if I end up with two or three.

The defense lawyer will often say a line like this:  “Now comes the hardest part of the case.  I have to sit down and the plaintiff attorney gets to speak to you one more time.  I don’t get to say anything after that.  This is because the plaintiff bears the burden of proof.  They get to go first and end last because they are the ones who have to prove their case.   The plaintiff attorney will come up here and tell you point by point why my closing is wrong.  And I can’t correct them.  But that is how our system works.  Thank you for your attention.”

My mind is not cluttered with yards of notes and lists of specific points to address.  I focus internally.   It feels like a laser is slicing through the jumble of thoughts that are seeking to distract me from the essence of the message that needs to be made.   I breathe.  Usually briefly close my eyes.  Get up and then speak from the heart.

I know, I know.  This isn’t really explaining how to do it.  But there is no formula.  There is no outline that can be prepared in advance.  The art of rebuttal stems in the ability to come up with a powerful rejoinder on the fly.  By the end of a trial – you know everything there is to know.  And this is the final moment you have to trust yourself to say the best thing that can be said.

Attached is an example of one of my rebuttals from a recent case.

If we could give jurors the full story, they wouldn’t be so suspicious and skeptical.  Generally trial starts off with the jurors more suspicious of the plaintiff than the defendant.   They think the plaintiff is probably very greedy and that’s why a case hasn’t settled out of court.   They feel sorry for the poor defendant.  Some of the laws and the judges who interpret the laws, make it even more difficult for a plaintiff to get a fair shake.  They prevent the jury from hearing what is really going on.   Here are the top three things that jurors have not been told in car crash cases that I’ve tried.

1. Insurance.  Almost every single defendant who is sued and brought to trial has insurance.  We cannot sue the insurance company, we have to sue the defendant.  The insurance companies have a gazillion lawyers who work for them.  They don’t care how much it costs and often play “hardball.” They make it very expensive for anyone to ever sue them.    The insurance company gets to hide from the jury.  They make the defendant attend trial each day.  They hope the jury will feel sorry for the defendant.   In reality, the defendant isn’t going to pay a single dime of any verdict – the insurance company is.  If we start talking about insurance during trial, we may risk a mistrial.   Story:    After trial  I spoke to jurors who  told me they would have given a bigger jury verdict but were worried that the defendant was a college student and would suffer.   They felt terribly when I told them the young man was fully covered by his parents' insurance.
2. Drunk drivers.  A good percentage of the time, plaintiffs are injured by drunk drivers.   The insurance company will generally deny responsibility.  The lawsuit has to be brought against the defendant driver.   Then sometime before trial, after making the whole process as expensive as possible for the plaintiff, the defendant will admit they are at fault.   They will then ask the judge to prevent the plaintiff from telling the jury why the crash happened.  The judge will almost always order the drunk driving is “irrelevant”  and not to be told to the jury.  Story:  I used to be a defense lawyer and represented Metro – our county bus service.   A bus driver had hit and killed a young man and drug him around town without even realizing it.  The driver was an alcoholic and drunk at the time.  Metro denied liability at first but then several months before trial “admitted” fault.  At trial, the jury never heard that the driver was drunk. 
3. Settlement and Mandatory Arbitration.     Insurance companies bank on the 80/20 rule.   80 percent of people will take a lower settlement than they should rather than file a lawsuit.  Of the 20 percent who file suit 80 percent of those will still take a lower settlement than they should rather than go to arbitration or trial.   Most of the  smaller cases go through mandatory arbitration.  This involves a hearing with witnesses and evidence.  It is not as formal as a trial.  But even though it is mandatory, the insurance companies routinely appeal the arbitration verdicts to force a jury trial.  They do this to make it more expensive for people with modest claims to sue.   They want to discourage attorneys from ever handling these cases.  At trial, the jury cannot be told about the arbitration or settlement attempts.  They never hear about the typical situation where plaintiff tries to settle the claim only to be low-balled or stalled for years by the insurance company.  Story:   A few months ago I was in trial selecting a jury in a case involving a minor child.  I’m asking them about issues that concern them and they make these comments:  1)  the court system should be reserved for criminal trials and big huge cases – not car crash cases; 2) a case that has drug on for four years or so must mean that the plaintiff is being unreasonable; and 3) the plaintiff’s parents are the greedy ones who filed the lawsuit and are not acting in their child’s interests, but their own.

The next time you are on a jury – remember.  There are many things you won’t be told because of the law.   It is dangerous to make assumptions about things that you don’t know or are not told.  If you make assumptions – they will often be quite wrong.  And there will be no way to make things right after your verdict has been entered.

Here are some thoughts on how to immediately and effectively connect with a jury:

• Stand and face the panel
• Own the courtroom floor, don’t stand still, don’t pace frantically either
• Maintain proper interpersonal distance, don’t stand too far away, don’t get too close
• Don’t think of it as rocket science, think of it as chit chat…organized, focused chit chat
• Pay attention to body language – yours and theirs
• Uncross your arms
• Don’t stick your hands in your pocket
• Don’t hold your hands behind your back
• Don’t read questions
• Make sure all the jurors can hear you
• Give to get
• Don’t write down answers (there’s not enough time)
• Speak up
• Lean in slightly towards the juror you’re speaking with
• Invite the jurors to speak as a group if the court allows
• Don’t use a podium unless the court requires it
• Make eye contact with everyone, somehow, and don’t look like an FBI agent while you’re doing so
• Be animated, friendly, engaging, interested, open, genuine
• Use open ended questions
• Don’t advocate
• If you feel phony guess what…
• Encourage the formation of groups
• Listen to the answers and deal with them
• Mirror
• Don’t paraphrase answers
• Stop talking so much – the jurors are the ones we’re interested in hearing from
• Give tidbits of information about the case, but don’t make an opening statement – the jurors will see right through you and the judge won’t be too happy either
• Proactively transition between jurors instead of reactively  jumping around
• Be polite and respectful to everyone always
• Don’t call a juror by their first name, instead use Mr, Ms, or Juror number
• Ask the judge how the jurors should be addressed
• Relax your face muscles and let them speak too
• If the jurors are answering “yes” and “no” then wake up and smell the coffee – you’re doing it wrong
• Don’t point
• Do gesture palm side up
• Keep track of the responses somehow and highlight problem or question mark jurors after each round
• Do not spend more than half your time on liability
• Unless you have a special knack for keeping track, have someone help you
• Make sure you have heard from all the jurors
• Be extremely courteous and deferential to the trial judge
• Be civil and courteous to the other lawyer
• Don’t roll your eyes
• Don’t have your client assist you
• Don’t spend all of your time on the very last row of jurors unless there is a chance they will make the box
• Don’t look scared even if you are, but it’s fine to admit to being nervous
• Embrace the cliché - honey works better than vinegar
• Embrace a touch of levity whenever appropriate and natural
• Don’t allow negativity to permeate and overwhelm the proceeding
• Even when striking jurors, aspire to the positive

 These tips are included in the Voir Dire booklet being published by the SKWC law firm with a release date of December 2010.  If you would like to be on the mailing list, please send me an email.

I don’t like mediations.   Mediators ask me to take back this sentiment.  But I’m not repentant.  It’s not that I don’t like the mediators.  Some of them I absolutely adore.  But I dislike the process.  In an ideal world I would say – hey we will accept X amount.  The insurance company would say – naw, we won’t pay that but we will pay Y amount.  And then we would give a thumbs up or down without further dickering.  But that is not how it works.  It’s all about the dickering.

Regardless of my crabby attitude, mediations are a necessary part of life.   Most courts require it and most insurance companies won’t negotiate without it.    Here is my version of the good, the bad and the ugly.

Picking the mediator can be the most important step.  I used to ask the insurance co.  who they wanted to use and would go with whomever they designated.  I figured it was more important the mediator was someone they trusted so that when I squeezed tight and the mediator said – this is what it will take – they would have enough trust to listen.  If the mediator was someone only I liked, the insurance co. would be distrustful and nothing would get done.  I’ve changed my thoughts on this over time because I can actually be the more difficult one.  There are some mediators whom I’ve never had success with, don’t have confidence in, and so it would be a Waste Of Time and money to agree to them.

The best mediators in general have been around for a long time.  They grow better with age.  They are used to managing major egos and idiosyncrasies.  They have all sorts of ways to move people toward resolution.  They make solid recommendations, don’t make promises they can’t keep, have a good pulse on where people are coming from, communicate well, and know how to broker a deal.  Many of them are deeply touched by the stories they hear and the people they help.  Then there are the others.  Here are some weak mediator traits:

1. The Messenger.  The mediator simply carries numbers back and forth.  The Messenger says something like this:  Here’s what the other side  has offered…what would you like to do.  And then leaves and goes to the other room and says the same thing.  We’re paying that mediator way too much money for them to be doing this.  It is a Waste Of Time.  Waste Of Time is the worst thing in mediation – it gets no one anywhere.
2. The Dictator.  There are a few mediators who have their “own special way” of doing things.  You have to abide by their strict rules, otherwise the process won’t work.  We’re not simply talking about taking advice.  We’re talking about an entire way of conducting the mediation.  Some of these mediators actually get the job done.  But me personally, I can’t stand the dictator approach. 
3. The Guesser.  There comes a point in mediation when the mediator has to know how much one side will come down and how much the other will come up.  Neither side will usually come out and say what their magic number is.  And even if they do, the mediator has to figure out if that is really it.  If the mediator says – if you will go to here, I know they will go to here – and they don’t.  That’s a problem.  You can’t trust the mediator.  They made a promise based on a guess that was wrong.  They broke their promise. 

All personal injury attorneys are not equal in mediation.   Insurance companies settle cases based upon a risk analysis.  The risk they’re looking at is what might a jury do if they believe in the plaintiff.  How big might a verdict be.    They really don’t care how much it will cost to take the case to trial – that expense is built into their business model.  They don’t really care about the feelings of the plaintiff.  It is a bottom line decision.  The unfair but true reality is that two different attorneys could be negotiating on the same case and the insurance company would offer different sums of money.  They are looking at  what risk the attorney presents.  If the attorney does not ever try cases, the insurance company knows they can lowball the offer and the attorney will always accept rather than go to court.  If the attorney tries plenty of cases, this changes the equation and the risk upwards.

Here are some random strategies and thoughts  about mediation.

• Make sure the insurance company has brought their person with money authority to the mediation (or have them on the phone)
• Have your client brings reading material and let them leave the room to take frequent breaks
• Tell your client not to pay any attention to the monopoly money nature of negotiations until you get the other side to the “bite mark”
• Prepare your client in advance, make sure they see the other side’s materials so expectations are realistic
• If your client is too seriously injured to attend or lives far away, use skype
• Always display unity between client and attorney when meeting with the mediator
• Do not talk disrespectfully or unprofessionally about your client behind their back  to the mediator
• Joint sessions are not needed except in certain cases
• If you do a joint session, do not make a presentation that will further polarize/antagonize the other side
• Ask the mediator to make their recommendation for the next move, then feel free to use or ignore it
• Know how much money needs to be paid back to health insurers, or the government or L&I liens
• If you can avoid it, don’t tell the other side what those liens are
• L&I will most likely want to attend so make sure to invite them
• Don’t let the mediator tell your client horror stories meant only to scare
• During the first round, maybe the second, go ahead and talk about the facts.  But after that get to the business of negotiation
• Talk about the facts for longer if you think the case won’t settle to get a better read on what the other side will do in trial
• Bring key documents in case the mediation cannot proceed without arguing the facts
• Be prepared for waste of time and deal with it.
• Don’t ever think that you can offer the fair and right number and it will be accepted at face value
• The whole thing about adding up the offer and counter and dividing them in half to see where you might get to – is just a big guessing exercise
• Remember each move you make sends a signal
• Don’t move too much hoping they will match
• If they say last and final offer, no more money.  Make them prove it.  Don’t believe them.  Make them make a call.  Don’t believe them.
• If they offer a bracket, almost never accept it.  Counter with a different one.  You can negotiate brackets.  Or disregard them.
• Avoid the candy dishes – the highs, the lows, the pounds!
• If the other side brings an annuity broker, figure out if you want to even see a proposal but the best thing is to just negotiate for present dollars
• Have a different annuity broker available by phone for a second opinion if it comes to that
• Put on poker face
• Be willing to walk out
• When the process is ended and there’s nothing left to be gained, walk out
• If you don’t walk out when you should, you send a signal
• Mediations can extend beyond the day of mediation – in fact they often do.
• If the case settles, don’t leave until a basic agreement has been signed by all sides
• Don’t be embarrassed to ask the other side to pay your half of the mediation fee as part of the settlement  particularly in a smaller case where every dollar counts

If you speak it and don’t show it; the auditory learners will get it, the kinetic learners might get it, but the visual learners probably won’t.  If you speak it and show it – the positive impact on understanding and retention is dramatic.

The Dual Coding Theory of memory was initially proposed by Paivio (1971). The core idea is  the human mind operates with two distinct classes of mental “codes”:  verbal representations and mental images.  Human memory thus comprises two functionally independent (although interacting) systems: verbal memory and image memory. Imagery potentiates recall of verbal material because when a word evokes an associated image (either spontaneously, or through deliberate effort) two separate but linked memory traces are laid down, one in each of the memory stores. Obviously the chances that a memory will be retained and retrieved are much greater if it is stored in two distinct functional locations rather than in just one.  See, Nigel J.T. Thomas in the Stanford Encyclopdia of Philosophy.  http://bit.ly/9e3HCo.

To use less scientific terminology:  seeing is believing.

Consider what types of visual aids you will be using and why they will help.  Make sure they match to the presentation.  They should not be too cutsie.  They should add rather than detract from your message.

Do not show visuals filled with words.

Please repeat.

Do not show visuals filled with words.

If you show a visual filled with words, then Paivio’s dual processing channels cross wires.  While you are speaking, the audience will be reading.  They will have to tune you out to read.  Or they will have to ignore the printing to listen to what you are saying.  Comprehension and retention will significantly decrease.  It is actually better to show no visual, than to show one filled with words.

Cliff Atkinson is the author of Beyond Bullet Points:  Using Microsoft PowerPoint to Create Presentations that Inform, Motivate, and Inspire. © 2005 Cliff Atkinson. Microsoft Press He suggests ways to structure slides so that they are not filled with bullet points.  He recommends dispensing with templates and using blank slide formats.  He has a website filled with free materials and helpful advice.  www.beyondbulletpoints.com.

Here are some suggestions for using Powerpoint® visuals during your presentation:

1. Check out the courtroom ahead of time and figure out where the screen and projector should go.
2. Get advance permission from the bailiff for the set up.
3. Use a projector that's bright enough so you don't have to dim the lights (jurors will fall asleep if you do that)
4. Use a remote mouse
5. The mouse should have a "black screen" button
6. Having the screen black focuses the attention on you and should be used periodically to drive points home.
7. Situate the laptop screen in front of you off to the side so you can glance at it w/o having to turn your head back to look at the screen
8. Always have a backup plan.
9. If it takes longer than two minutes to fix a glitch and a recess isn’t available, go to that other plan. 
10. Don’t talk to the screen.
11. Some people stand in front of the screen (not obstructing it but in front of it newscaster style) and never look at the screen.  Other people interact with the screen.  There is no rule governing this other than – don’t talk to the screen.
12. There is a “notes” view that allows you to view your notes on the computer monitor so you don’t need to talk to the screen or shuffler paper notes. 
13. The slides should match up with what you are talking about without using the same words
14. If you show a document, blow up and highlight the important part of it
15. Words must be big enough for the audience to read
16. Don't use all capitals. 
17. The general rule is no more than three to four chunks of data per slide
18. Avoid more than one photo per slide unless you are comparing pictures
19. Crop photos
20. Don’t use templates
21. Headlines should be short complete sentences
22. Rarely use headlines
23. Don't interact with every slide
24. Interact with some of the slides
25. Contrast should be bright and clear
26. If you are trying to color code slides - remember, men in particular may be colorblind
27. Special effects should rarely be used
28. Same for clip art
29. Get photos and images of real things from the case file and from the internet
30. If it is too cute or basic, it will be seen as condescending
31. If you modify a photo to make a point, type out a disclaimer at the bottom of the slide, i.e. "This photo has been altered"
32. Pause before/after presenting a dramatic/humorous slide; or risk the audience forgetting what else you say
33. Try out the slide show on others before you show it to a judge/jury
34. Use more than a few, but not too many slides.  A couple per minute.
35. If the judge requires you to show the other side your slides, then make sure you do so.  There won't be a problem if you are simply showing evidence or things you disclosed prior to trial.  Other images may require a bit of discussion, negotiation, or motion practice. 

Once upon a time, it was normal for trial lawyers to argue motions several times a week.   We used to sit in courtrooms for hours, drinking in the atmosphere, listening to our colleagues and adversaries present their positions, waiting for our cases to be called.  We learned which tactics worked, and which did not. 

We came to know judges without having tried a case in front of them. Some were easy to read.  A raised eyebrow meant get on track.  A grimace meant cut to the chase.  Others perfected the art of stone face.  Or in some cases acted the opposite of how they felt - smiling as they prepared to pulverize you.  

The most common motions involved discovery fights - who could get what document, what where why when and how.   Judges came to despise most of those motions because they so often generated into mindless bickering.  This was too bad because especially in cases against big corporations, there was real stonewalling and hiding of documents going on.  Luckily the judges for the most part, could tell the squabblers apart from the cases that deserved a strong ruling.

 When I worked for Tom Chambers (now Justice Chambers of our Supreme Court), I was in court every week.   Tom's assistant Sheila (Jeff called her Sheeera Princes of Power), would take Cristina in her baby carrier, sit it down in her little alcove, and watch her for me until I got back.  Anytime the defense wanted our client to be examined by a medical defense doctor, it was my job to resist it on constitutional grounds.  I don't think I ever won one of those motions.  But I believed that Tom was right and was happy to argue them as a matter of the principle.

Nowadays, in the larger county courts, about the only motions that are orally argued are those that can result in a case getting dismissed.  The stakes are higher and everything becomes more nerve wracking.  

I created the following list of tips several years ago.  It was published in our trial lawyer news paper.  I'm pretty sure it is a good list, because I saw photocopies posted on the walls in certain judge's courtrooms.  Here you go:

• Pay homage with a formal greeting and introduction


• Before launching into argument, ask the court if there are any particular questions it would like addressed.  If so, answer those questions before you do anything else.


• Be courteous and respectful to all participants


• Don't interrupt anyone


• Be direct


• Listen closely to and take cues from any comments made by the judge


• Don't ramble, yell, or say mean things to adverse counsel


• Maintain eye contact with the judge


• Put the motion materials in a separate file/binder and leave everything else at counsel's table


• Make some sort of outline


• Have a law reference cheat sheet available


• Speak persuasively


• Obey time requirements


• Reserve time for rebuttal


• Don't roll your eyes when it's the other side's turn


• Bring your client if they would like to come and introduce them to the court


• If it helps, use strong demonstrative aids


• Take one of those little paper cups of water with you to sip just in case your tongue gets tied and you need a moment to gather your wits


• Don't read your motion


• Find a way to lighten the atmosphere while not making light of it


• Appear confident and look your professional best


• Enthusiasm will help


• Beat the adverse party to the punch - deflate its best arguments


• Don't argue the kitchen sink


• Don't argue with the judge

My emotional claw reaches out from time to time, grabbing at Noelle and holding her tight.  My last child left at home while the others are in college.  For one more year.    As I get ready for this next week,  I reminisce about these past eleven years of being a single mother who goes to trial.  The logistics!  

Several months ago, I had a trial in Olympia Washington. The drive was shy of two hours each way - worse during rush hour.   One of my partners said - oh there's a great hotel you can stay at right next to the courthouse.  And I said, I have Noelle with me.  I can't stay in a hotel.  I think he gets it, but probably not.  It isn't his fault.  My reality is a bit different than his.

The weekend before a trial means that I do trial preparation, but I also am still a mom.    Here is what I do today:

I wake up at 8:30 which is late, but justified because I was working on trial prep until 2:30 a.m.   Noelle is at church and then going to the pumpkin patch with her youth group.  I feed Nala and take her out for her morning ritual, work a few hours, start a load of laundry, clean up the kitchen and the family room, get a call from Alysha.  Talk to her, agree to meet her at Target for some supplies at 11:15.  Put first load of laundry in the dryer, start a second load.  Drive to Target, hug and hang with Alysha.  Then go to Trader Joes with her to get her some food and an orchid to brighten her place.  Hop over to the Chevron, fill up her car and back to the house.  Ed is there waiting to see me.  Give him a hug.  Alysha bops around for a few minutes, then leaves to go back to the UW.  Hug her.  Fold laundry load one.  Put second load in the dryer.  Check email, review a deposition.  Throw on gardening clogs, grab bucket and clippers.  Cut down two withering clematis vines clinging to side of house.  Prune a few roses.  Stuff into recycling bin.  Back into house.  Bid Ed and Nala adieu as they leave to go on a hike at Twin Lakes in Northbend with a friend around 2:00.  Fold second load of laundry.  Get back to analyzing depositions.  Work for two hours up to the last possible second, throw on running gear.  Run down along the Sammamish trail in perfect sunny fall weather.   Glorious. Clear head and think of the cases.   Rush back.  Hug Noelle who is back from pumpkin patch and doing homework.  Jump in and out of shower.  Ed is back with Nala.  She is filthy and he washes her but...I have to start a third load of laundry.  Start dishwasher.  Run out the door with Noelle.  Ed follows us. 

Arrive at Thai Kitchen for an extended family dinner at 6:00.  Kiss and hug everyone.  My sister Jenny, her two boys and husband John.  Alysha and her boyfriend Reid have brought my mom and niece Erin.  There are eleven of us and we have a feast.  I think the phad see ew is the best.  Ed says the curry.  Mom says the appetizers.  How did we eat appetizers on top of everything else.   I'm sitting next to EJ, the four year old who is quite entertaining.  I give him and his five year old brother Ben, Buzz Lightyear plates to eat from and a halloween coloring book (thank you Target).  He's busy with a skeleton and a spiderweb.    We have a great time.  Finish.  Kiss and hug everyone and leave.

Drive home with Noelle, talk about life.  Back in the door by 8:00.  Get wood from the back yard and start a fire in the wood stove so she can be cozy as she finishes her homework.  Light candles.  Put away some of her clothes (because I'm feeling nice today).  Make a bed with clean sheets from second load.  Continue working on trial prep.  Look at an email from yesterday from my "4th" daugher who calls me her mom2.  My 5th is my god daughter Jataun.  #4 is Noelle's best friend since grade school.  She asks me for input/help on the essay for her college admission paperwork.  I edit it.

Check on Noelle.  She's fallen asleep.   Dishwasher buzzes.  Empty it.  Tell Noelle it's time to go to bed.  Her eyes are barely open as she tells me to go away.  I persist until up she goes, off to her room at 11:20.   Take Nala out.  She sees a squirrel.  Runs in circles, pulling my arm this way and that.  Is on full alert as she begrudgingly does her duty.  Runs in circles around me until we get back into house.  Bolts off to stand squirrel vigil at the window.   I go check on Noelle, give her a kiss goodnight.  Blow out candles.  Get back on computer.  Decide to write this blog.  Finish it.  Back to trial prep.

Today a lawyer friend asked me how I learned to be a crosswalk.

Rewind.

Earlier this year, I "was" a crosswalk during opening statement in a pedestrian versus auto collision case.  A few trials before that, I "was" a Holiday Inn courtesy van in a case involving a pilot who suffered a head injury when he struck a low hanging metal object.   

I don't find it odd to "be" an inanimate object.  If it helps out in the telling of a story, then isn't that a good thing...

By now you know I have three girls.  I worked part time until the youngest was in Kindergarten.  So I spent a lot of time at home.   They were always playing and acting things out.  We had a puppet theater.  We had a dress up box.  Make believe was part of our daily activities. 

Over the years things have changed but playing, pretending and being dramatic have been constants.  Now, we karaoke.  We make silly movies with my flip recorder.  We almost never take straight photos.  Here is one of a gazillion pictures of funny things we've done.  This is my daughter Alysha and her boyfriend Reid.  They dressed up last October on a non-holiday and walked around town collecting smiles whereever they went.  Why not.

Alysha and Reid last October (not December)

There is no rule that says we must be boring in trial.  We lawyers sometimes take ourselves a bit too seriously. 

There is a story involved in any trial.  In order to tell it well, we can go outside the walls of our lawyerishessness.  All we need to know are the techniques we learned as children.   Or from our children.

We aren't supposed to spit, scratch and yell during lawsuits.  Most of us do our very best to be as civil as possible.  I have numbers of friends I've made who are on the other side.  They are the ones who nick named me velvethammer because "you are nice and softspoken and will smile as you are pounding on us relentlessly."  Donna and I will most likely not ever make it to the friend category.  Miracles can happen, but she bristled at me as soon as I walked into the room.  And I don't even know her. 

Donna is threatening to take me to court and ask that I be fined for bad behavior.  She says I interfered with her  deposition when I told my client she didn't need to answer repetitive questions that I felt had finally crossed the line and were designed to harass and intimidate.   This issue presents an interesting dilemma for attorneys - because while we usually get along, sometimes we don't.  Depositions are taken outside of court so no judge is there.  What happens when we disagree and there's no one to decide who is right?   This happened in Longview which is a 2.5 hour drive from Seattle where we were from.  So it wasn't as easy as running over to the courthouse.  Anyway, here is the letter I sent to Donna.  You be the judge - who is right.

 Dear Donna:

Thank you for your letter of September 13th received the 14^th giving me a deadline of the 22nd.  I have now reviewed the deposition and respond to your letter threatening me with a motion to compel and for sanctions.  I appreciate the opportunity to respond before you do so.

 On page 63 your question was “Did you see any ice” and my response was to object: “Already answered.  Badgering the witness.  Instruct her not to answer.”  I rarely instruct witnesses not to answer questions and cannot remember the last time that I did so.  Here is what led up to this unusual objection and instruction:

•  She said it was snowing when they arrived (31)


• You asked why that was a concern (31)


• She said it was snowing when they arrived (31)


• You asked why that was a concern (32)


• She said her husband was 80 and that was a concern (32)


• You commented that she couldn’t remember if there was snow on the stairs (38)


• She said she was sure there was snow on the steps (38)


• You asked if there had been an accumulation of snow on the ground or around (39)


• She said there was some (39)


• You asked how much (39)


• She said there was some she couldn’t answer that (39)


• You asked if  there was an inch or flurries not sticking (39)


• She said she didn’t remember the snow conditions, she wasn’t looking at measurable snowfall(39)


• She said the stairs were icy Friday Dec 4 (40)


• She doesn’t recall if there was snow on the stairs (40)


• You asked her what the temperature was (41)


• She said cold (41)


• You asked what degree it was (41)


• She didn’t know (41)


• You asked if there was visible ice on the stairs (41)


• She said cold and icy (41)


• You asked why did she say icy (41)


• She said because it was cold and icy (41)


• You said what was cold and icy (41)


• She said the sidewalks (41)


• You asked if she saw ice on the sidewalks (41)


• She said yes (41)


• You asked where the ice was (42)


• She said on the approach to the motel (42)


• You asked where on that sidewalk there was ice (42)


• She said it was snowing, cold and icy  (42)


• You asked where on the sidewalk in front of the hotel was there ice (42)


• She said getting out of the car and going into the motel (42)


• You asked where else did she see ice (42)


• She said – the only thing she could say it was snowy, cold and icy (42)


• You asked where else on the sidewalk she saw ice (42)


• She said going and coming to the rooms it was snowy, cold and icy (42)


• You asked her if there was ice on the photo ex 1 (42)


• She said yes it was snowy, cold and icy (43)


• You asked if there was ice on the sidewalk leading from the parking lot towards the building (43)


• She said she was carrying luggage and couldn’t answer that but it was snowy, cold and icy (43)


• You asked again if there was ice on the sidewalk from the parking lot (43)


• She said they were shlepping thru icy, snowy stuff (43)


• You asked if that was slush (43)


• She said can’t tell you if there was ice underneath the snowy slushy stuff (43)


• You asked if she looked at Ex 1 again that leads to a corner was there ice (43)


• She said she didn’t know if there was ice underneath the snowy slush stuff (43)


• You asked if there was ice on the stairs (43)


• She said she couldn’t tell you if there was ice underneath the slushy snowy stuff (44)


• You asked if when she left her room to go to dinner 12/4 was there ice on the stairs (44)


• She said it was wet, sloshy snow, doesn’t know if ice underneath (44)


• You asked if there was ice on the sidewalk when she went to dinner 12/4 (44)


• She said her answer was the same – wet, sloshy snow don’t know if ice underneath it (44)


• You asked how deep the wet sloshy snow was (45)


• She said she couldn’t answer that (45)


• You asked if when she returned to room 12/4 after dinner if there was ice (52)


• She said she didn’t recall (52)


• You asked her what the temperature was (52)


• She didn’t know, said it was cold (52)


• You asked what the condition of the stairways was (53)


• She said the same as it was earlier (53)


• You asked if that was slushy snow (53)


• She said that you could see (53)


• Youa sked if there was accumulated snow on the ground (54)


• She said it was slushy (54)


• You asked if the next morning 12/5 whether there was visible ice on the stairs (54)


• She didn’t recall (55)


• You asked when returned to room that afternoon what was temperature (59)


• She said cold (59)


• You asked if it was above freezing (59)


• She said she had no way of knowing that (59)


• You asked what the conditions were on the sidewalks going back to room (59)


• She said it was cold dark and icy (60)


• You asked if was above freezing that day (60)


• I objected as asked and answered (60)


• She responded that she had no knowledge. (60)


• You asked if when she went back to her room if it was above freezing (60)


• She said she didn’t know (60)


• You asked if she saw ice on the sidewalks that led from the building towards her room (60)


• I objected (60)


• You rephrased whether there was ice on the sidewalks as she walked back to her room (60)


• She answered that all she could say was it was very cold and it was very dark.  If there was ice, she probably would not have been able to see it (60)


• You asked her again wether there was ice on the sidewalk as she walked back to her room (61)


• She said – that you normally don’t see ice that late at night when you’re walking on the sidewalk (61)


• You asked if the sidewalk was dry or wet (61)


• She said it was cold, dark and icy (61)


• You asked how she knew it was icy, why did she say it was icy (61)


• She said because it was very cold and it was very dark and those are conditions for ice (61)


• You asked why cold and dark was a condition for ice. (61)


• I objected that you were arguing with the witness, she’s done her best to answer, let’s move on (61)


• You said you were not going to move on, it was your deposition and you were entitled to ask questions and I could not make speaking objections  (61)


• I said you were arguing with the witness, I was not going to allow you to keep doing that and we were going to break for lunch (62)


• You said we were going to keep going (62)


• I said, we would break for lunch in 5 minutes which would have been 12:00 (62)


• You said you were going to get your questions answered (62)


• You said – when she went back to the room at 4 on 12/5 did she see any ice on the sidewalk leading to the room (62)


• I objected – asked and answered (62)


• You told her to go ahead (62)


• She said her answer was the same, it was cold dark and icy (62)


• You asked her if she saw any ice (62)


• I objected as already answered.  Badgering the witness.  Instruct her not to answer. (63)

 After reading the transcript I remain quite firm in my belief that you were engaging in deposition practices designed to confuse and intimidate our 67 year old plaintiff.  She did her best.  But her answers were not good enough for you.  So you resorted to the technique of multiple repetition in order to wear her down. 

 As I said at the begining of this letter, I rarely will instruct a witness not to answer a question – almost always it is due to a privilege issue.  In this case, you crossed the lines and the plaintiff was becoming visibly upset.  I believe I would have failed in my duties to represent and protect the plaintiff, had I not stood up for her at that point.

Under these circumstances I am not fearful of your threat to bring a motion for sanctions against me. 

 VTY

 K3

 If she brings a motion, I'll add a postscript to tell you if I got in trouble or if she did.

Cristina and I today on her 21st b.d.

I was five months along before I told the law firm of my pregnancy.  I had never been a "traditional" employee.  Coming out of lawschool my then husband was a professional basketball player.  So I only worked when we were in town.  By 1989, he was about done and I was working more regularly.   

My main supervising partner, a career insurance defense attorney, was a bit of a gruff fellow.   We were in a deck railing collapse personal injury trial where I put on the entire case.  He was there just to watch (and kick me under the table from time to time).   Back then the court staff would let us work in the courtroom through the lunch hour.  The partner used the time to tell me what to do and to make sure I continued preparing.  I was midway through my fourth month and always hungry.  That first day I was too scared to leave the courtroom since I was supposed to be working.  Protein bars hadn't been invented yet.  I wondered what would happen if I fainted.   After that I brought a sandwich with me.

A few weeks after that trial ended (successfully for my client), I went to tell the main two partners of my pregnancy.  In my mind I thought they might have started to have suspicions.  There was only so much a jacket and baggy skirt could hide.  And one of them was female for Pete's sake.  But apparently they just assumed I had been gaining a little weight.   As I told them my plight, I could see their thoughts behind their eyes.  (I can still feel the tension even now).   They were thinking - what are we going to do.  We need a body that can work the way we need it to.  

Over the next several months, this is what happened.  I introduced one of my friends to them whom they hired.  To make room for the new staff, they moved/banished me from my office on the main floor, to an office on the top floor next to the library (there were no other attorney offices upstairs).  They did not throw me a shower.  They did not offer me maternity leave.  They did not talk at all about life after the baby.

I was a bit confounded because the female partner had children.(Even though she had them before she went to lawschool, still, I thought there would be some understanding).   I never complained to them.  I never asked them for more than they offered (which wasn't anything).   Instead, I worked until the week before the baby was born 21 years ago to this day. 

Not quite three months later I went to work for a plaintiff lawyer named Tom Chambers who would later became one of our state's Supreme Court justices.  But that's another story.

I learned about subliminal advertising when I was a kid.  The concept of being subconsciously manipulated (often in a fun way), really bothered me.  Actually it still does.  Usually it is so obvious or poorly executed that I know what's going on and shrug it off.  But there are plenty of other times when I'm definitely being had.

Allstate is not the only bad insurance company out there, but it is the one whose inner workings I know the most about.   I've read their documents.  I've fought them over documents.  I've called them liars over documents.    One time because I helped another lawyer get documents, Allstate subpoenaed all of the files I had on it, and took my deposition by video for an entire day.  No love lost there as you can tell.

Allstate has a huge marketing campaign full of the subliminal manipulations that I detest.  One of the promises it makes, is that if you get in an accident and it is your fault, Allstate will protect you and sit with you every step of the way.   For those who know how Allstate works, what this really means is - Allstate likes to play hardball even when it  knows the accident was your fault.  It will often force the other side to file a lawsuit against you, and it will go to trial because that's what's best for  its business model.  It banks on juries being tough on injured people.

Most of the cases I've  tried have been against Allstate insured defendants.  This is because Allstate will rarely voluntarily pay what a case is truly worth. 

My observations of Allstate trial counsel throughout the years, is that I get along with most of them, they are nice enough people doing their jobs.  However, the vast majority are inexperienced and/or simply bad defense trial lawyers.  

The worst one I can remember, was so mediocre, that afterwards the jurors told us they could not bear to look into the attorney's eyes during closing argument because they were so embarassed at the performance.  I remember having to keep my eyes cast down and body language neutral because my fear was that the jury would feel sorry that the defendant had such woefully inept counsel.

I used to think Allstate was just too cheap to hire seasoned, good defense trial lawyers.   But I just read this article and have a different conclusion.

The Impact of Jurors’ Perceptions of Attorneys and Their Performance on Verdict.  http://papers.ssrn.com/sol3/papers.cfm?abstract_id=1633237

The research here generally shows that the better a defense lawyer performs, the worse for them and the better for the plaintiff (my side).  In other words - good defense lawyer equals less for Allstate's bottom line.     Now, I'm thinking Allstate did their own studies and that's the explanation why they often use such poor lawyers.

http://www.metacafe.com/watch/5000547/a_world_without_lawyers/