The Velvet Hammer -

The only health condition the defense won't try to spin - is death. 

One technique used against plaintiffs, is to paint them as negative whiners.  The defense mocks the injured person by saying they are overly focusing on their injury and see the glass as half empty.  The logic is - if the person had a better mindset - they would see the glass is half full and everything would be better.  

If the glass is half full defense works as planned, the jurors will feel nothing but irritation towards the injured person.  Because no one feels compassion for a person who only sees and wants the worst in every situation. 

In this trial, a drunk driver hit a man and crushed various bones throughout his body.  Defense doctors were hired to testify that his injuries were not really so bad.  Bones do heal ...with the help of metal plates and screws okay sure - but they do heal, they said.

In closing, I collected all of the "minimizing" statements of these doctor experts.  Used the above photo.  And roasted them by co-opting and presenting "Defendant's Glass Half Full List."

• He can walk even if he has to stop (after a few blocks)

• He can write with his left hand (even though he wrote with his right before)

• He can ride and drive in a car (but is still scared of trucks)

• He can travel (though he avoids it and has to move around constantly)

• He can cook to a certain extent

• He has range of motion (though he had to give up being a professional spin instructor and can no longer climb mountains, run, or engage in professional dance)

• He is off of narcotics (but still has pain daily)

and so on.

Co-opt this defense.  Show the jury that your client believes that the glass is half full - even though bad things have happened. 

Photo:  From a PPT slide used in seveal trials last year.

You get in a car wreck.  But fortunately have purchased Personal Injury Protection or Medical Pay insurance.  So you believe you are fully covered.  That is, until the adjuster cuts off your benefits.  Usually with the help of a "medical review" sometimes performed by an actual doctor (who never sees or talks to you). 

Where do these all powerful medical insurance adjusters come from.  These people who are deciding whether we get treatment or not.

Here's a typical example:

                      8                      E X A M I N A T I O N

9   BY MS. KOEHLER:

16        Q.   Where do you work?

17        A.   Allstate Insurance.

18        Q.   How long have you worked there?

19        A.   Eleven years.  November will be 11 years.

20        Q.   What's your job title?

21        A.   Claim adjuster.

22        Q.   What's your other job titles you've had since

23   you've been at Allstate?

24        A.   Well, I'm currently a senior claim adjuster, and

25   it's been just claim adjuster prior to that.

                                                                     5

1        Q.   How long have you been senior?

2        A.   I believe it's been two years.

3        Q.   What were you hired on as?

4        A.   Claim adjuster.

5        Q.   What's your educational background?

6        A.   I have a B.A. degree from the University of

7   Washington.

8        Q.   In what?

9        A.   Psychology.

10        Q.   What was the year?

11        A.   1987 I graduated.

12        Q.   Any jobs other than Allstate after graduation?

13        A.   Yeah.

14        Q.   What else?

15        A.   First job out of college I worked for Northwest

16   Center for the Retarded.

17        Q.   In what capacity?

18        A.   I was an instructor for them.  The developmentally

19   disabled adults came to Northwest Center to work, and so I

20   helped them with their work.

21        Q.   How long did you work there?

22        A.   Two years.

23        Q.   Anywhere else?

24        A.   Yeah.  After that, I worked for Cascade Savings

25   Bank.

                                                                     6

1        Q.   As what?

2        A.   I was an escrow assistant there.

3        Q.   For how long?

4        A.   I started out as a temp through Kelly Services for

5   maybe four months and then worked there two years.

6        Q.   Why did you leave Northwest Center for the

7   Retarded?

8        A.   I wanted to try something new and try to get some

9   better pay.

10        Q.   What did you do after Cascade Savings?

11        A.   I worked for North -- or sorry -- Western Title.

12        Q.   As what?

13        A.   I was a receptionist there, and I also moved on to

14   do reconveyances.

15        Q.   How long were you working there?

16        A.   A year.

17        Q.   And then where did you go?

18        A.   I worked at a daycare center.

19        Q.   As what?

20        A.   A three-through-five-year head teacher.

21        Q.   For how long?

22        A.   About six months.

23        Q.   What was the name of it?

24        A.   You know, I don't recall.

25        Q.   Then what did you do?

                                                                     7

1        A.   I went on to Country Companies Insurance.

2        Q.   When was that?

3        A.   When was that?  Let's see.  It was about 1995.

4        Q.   What was your initial position?

5        A.   I was an assistant receptionist.

6        Q.   Why did you take on that job?

7        A.   Why did I take it on?

8        Q.   Uh-huh.

9        A.   I had temped there through Kelly Services, and it

10   was a good opportunity for me.

11        Q.   How long did you work there?

12        A.   About two years.

13        Q.   What was your last position worked?

14        A.   At Country Companies I left as a receptionist.

15        Q.   Then where did you go?

16        A.   Allstate.

17        Q.   So you went from being a receptionist to a claim

18   adjuster?

19        A.   Yeah.  I did handle minor claims at Country

20   Companies.

21        Q.   What was your job title at Country Companies?

22        A.   They had me down as receptionist assistant.

23        Q.   So at Allstate you were hired on as a claims

24   adjuster?

25        A.   Yes.

                                                                     8

1        Q.   What year?

2        A.   1997.

3        Q.   What department?

4        A.   PIP.

5        Q.   Which office?

6        A.   Marysville.

7        Q.   Have you ever left the office?

8        A.   Yeah.  Yes.  I'm in the Bothell office now.

9        Q.   Since when?

10        A.   About six years ago.

11        Q.   Prior to adjusting claims, what courses did you

12   take in insurance claim-handling?

13        A.   In insurance claim-handling, we took courses like

14   introductory to medical reports, a lot of online courses,

15   basic claim-handling classes on interpreting policy.

16        Q.   When did you take these courses?

17        A.   After beginning at Allstate.

18        Q.   So the years would be 1997?

19        A.   Yeah, when I started.

20        Q.   Did you review documents involving claim core

21   process redesign, CCPRs?

22        A.   No.

23        Q.   Do you know what the courses that you were taking

24   on were based upon?  In other words, do you know how the

25   courses that you were taking were developed?

                                                                     9

1        A.   No.

2        Q.   Do you know any of the motivation surrounding any

3   of the courses that you took?

4        A.   No.

5        Q.   Were you told any of the policies and procedures

6   of Allstate at the time that you began working there other

7   than work through classes?

8        A.   Through classes?  No, just started out doing like

9   training on the computers and things like that.

10        Q.   Did you actually have a training period before you

11   began working?

12        A.   Yes.

13        Q.   Where were you trained?

14        A.   We did -- in Marysville.

15        Q.   Did you ever leave the state for training outside

16   of Washington?

17        A.   Yes.

18        Q.   When did you do that?

19        A.   In June 1998.

20        Q.   Where did you go?

21        A.   To Northbrook, Illinois.

22        Q.   How long were you there?

23        A.   Two weeks.

24        Q.   Was that for claims school?

25        A.   Yes.

                                                                    10

1        Q.   Did your job title change after 1998?

2        A.   No.

3        Q.   Did you ever go back to Northbrook?

4        A.   No.

5        Q.   Did you ever go to California?

6        A.   No.

7        Q.   Did you ever go to any state outside of Washington

8   for training other than Northbrook in 1998 for two weeks?

9        A.   No.

10        Q.   All of the training that you had in Washington,

11   was it at Marysville?

12        A.   Yes.

13        Q.   And online; am I correct?

14        A.   Yes, and then sitting-alongs with other coworkers.

….

                                                                    18

3   What medical training have you had?

4        A.   None.

5        Q.   What science courses did you take in college?

6        A.   I took human anatomy, physics, chemistry, organic

7   chemistry.  I took two physics classes that I recall.

8        Q.   Have you ever worked in a medical office?

9        A.   I temped for two weeks at an x-ray department at

10   the University of Washington.

11        Q.   I take it you perform no medical treatment or

12   services?

13        A.   Correct.

14        Q.   It was a receptionist job or something like that?

15        A.   Orderly.

16        Q.   Do you claim that you have any medical training or

17   background?

18        A.   No.

I had one night to come up with a speech.  it was our trial lawyer's annual convention.  And I needed to fill in for a sick speaker.  That evening on the treadmill  the speech came together.   Now a decade or so later, here is a blog version of The "P"s. 

OFFICIAL TITLE:  THE ART OF ADVOCACY

Passion - The ability to throw oneself headfirst into a cause with heart, mind, body and soul.     

Perspective – There are many different perspectives involved in having perspective.  Make sure you truly see what is there to be seen.

Principle -  A wise older lawyer once said – “you should never sue just as a matter of principle…the court system is expensive, the process tough, and ultimately it could cost you a lot of money that you will never recoup.”  On the other hand, sometimes the right thing to do is to sue just for the principle of the matter.  

Preparation – There is no substitute for preparation.  But you can't be prepared enough for everything.

Personality –  We all had personality before we went to law school and were taught to think and act like boring lawyers.  Stop talking so much.  Listen.  Feel life through your client’s eyes.  Wear something pretty.  Write like a journalist.   Smile inside and out.  Video yourself talking and ask  – if I was listening to this person, how long could I bear it before I tuned out. 

Professionalism -  Litigation is often by its very nature, a battle.  We should strive to fight with respect, grace and dignity.  On the other hand, trial lawyers must be aggressive, effective and tireless advocates for the sake of our clients and the cause of justice.  Our politeness comes with teeth.

Persuasion - The key to being able to persuade is knowing you are on the right side.

Parenthood -   Spending "quality time" with your kids is not as good as spending enough time.  Figure this out - somehow, someway.  You can do it.

PowerPoint -  Technology has revolutionized the way we conceptualize and present cases.   Now we can show and tell within a tight budget.   Attend a local workshop, enlist a child aged eight on up, or get a “dummies” guide.  But learn how to do this. 

Perseverance - It's not over until it's over.  And even then, tomorrow's a brand new day

 Photo: Okay, so there is no photo of me giving the P speech.  But this one is kind of close.  Am in the audience at my partner Paul Stritmatter's fantastic seminar. 

We are in deposition yet again on this case.  Have lost count of how many there have been.  Thirty, forty, something like that.

Have spent so much time together, we're kind of like a team.  Even though we are all on different sides.  There's the gracious court reporter who always has cookies ready for us.  Even at 9:00 in the morning.  N - my biggest sparring partner. B who passes notes to N but otherwise doesn't speak.  W who sometimes chimes in at the end.  C isn't with us today.  P comes in her stead.

He says hello and that he really enjoys reading my blog.  He has a twinkle in his eye.  Younger.  Not jaded.  Get a good vibe from him.

This blog in fact drives many plaintiff lawyers absolutely nuts.  The fact that plaintiff lawyers write books of strategy - drives many plaintiff lawyers absolutely nuts.  WHAT IF THE OTHER SIDE GETS A HOLD OF THIS!

Have we given away key secrets.  Have we provided ammunition they can use against us.  

Hmmm.  Let's think about this.  Did we all go to college.  Did we all (or most of us) go to law school.  Did we take the bar.   What makes any of us think that we have "the inside scoop on how to be better" than the other side.  We are all lawyers.  Hello!

Most of our techniques have been around for centuries.  Remember Plato, Aristotle, Socrates, oh - and Sun Tse.  We just repackage them.

Rick Friedman told me a long time ago when he just published the Rules book, that he didn't care if defense lawyers read it.  The reason - because it was the truth.  It worked if you were on the right side. 

When I was a defense lawyer, usually the defendant did something wrong.  My job was to limit the exposure of the insurance company.  To keep damages down.  Or to try to get the case dismissed on technicalities.  The worst cases involved clergy sex abuse.  I didn't do too much of that but enough to know that it was creepy and gross.  We used to argue (and win) that the rape did not occur "in the course and scope" of the clergy's employment with the church and therefore the church was not responsible.  I had to distance myself.  Make it a totally intellectual exercise.  So that I could not feel any compassion for the victim.  Stone faced.  Stone hearted.  The law has changed now thank heavens.   And so have I.  Who was I... But I digress.

The cool thing about being a plaintiff lawyer is I get to represent people whom I care about and whose causes I completely believe in.   

So if defense lawyers want to read this blog, super duper.  Hope they enjoy it.   If they read it solely to try to understand and predict my behavior....well, good luck on that ;)

Photo:  At a break in the deposition, eating a sumo orange (highly recommend these).  Ipad has joined laptop - they are a good team.  N in the background. 

Tap.  Tap.  Tap.  It is dark out.  Grope for the clock.  Bring it within two inches of my eyes and squint.  6:00.  Which means it is 5:50 since pushed it forward a teeny bit.  Just in case there was a day like today.  Put it back on nightstand to go back to sleep.

Tap.  Tap. Tap.   Really drives me nuts when my upstairs neighbor wears shoes.  Yes, am still in the condo.  Waiting for the house remodel to one day end.  Condo is a hundred year old apartment conversion.  The old wood floors are beautiful .  Dark and glossy.  There is just one problem.

Tap. Tap. Tap.

Cristina came to hang out last night.  She is on the murphy bed in the nook down the hall.  Nala is sleeping with her.  This means, when tap tap tap lady comes down the stairs with Sam, her aged blind scotty dog, Nala suddenly turns into Kujo and is launching herself at the door.

At this point, give up and get out of bed.

Nala and I do our business.  Drop her at doggie daycare.  Drive 3.64 miles to the parking garage at Second and Cherry.  Leave the car running for the valet.  Best place to park in  town.  Nine bucks if you get there before 10:00 am. 

Walk two blocks to the courthouse.  Menswear black jacket over black tee over black long ruffled skirt over black sweater tights over black flat boots with fringe.  Toe is better but still can’t wear high heels.  Everything is covered by big black poofy Northface coat that hits at the knees.  Purse slung over one shoulder.  Computer bag slung over other shoulder.   Get through security and dash up the seven flights of stairs like a ninja warrior. 

Walk down the black and white marbled floor.  With the black and white marble wainscoted walls.  Into the black and white marbled courtroom of Judge Dean Lum.  On the center of the back wall is a gigantic old oil painting of Abraham Lincoln. 

Am filled with a rush of feeling that can only be described as love.  Love this old crumbling crappy courthouse.   Was it just a week ago that another courtroom betrayed my client.  Today is another day.

This case is a first for me.  A superior court bench trial of a motor vehicle collision lawsuit.  The defense did not file a jury demand.  Forgot most likely. 

Shake hands with the clerk and bailiff.  The court reporter comes over and says hi.   Know him well from many trials.  A court reporter in training sets up in a remote corner of the courtroom.  Is that a good idea…in the age of computers… hope so for her.    A big screen is already there and opened.  We don’t need ours.  Mike the tech guy set ups the big projector and connects it to my computer.  Am ready for opening.

Matt the defense lawyer comes in.  Say hi.  John my paralegal comes in with the binders of exhibits.  We go and visit with the clients and family members outside.  They’ve brought their kids.  Ages 4 and 6.  The boy is running back and forth down the hall.   The girl is bouncing up and down on the wooden bench.  The plan is for the parents to take turns watching them while the other is in the courtroom.  The little boy rips into the bag of Cheetos that is supposed to be in his lunch sack.  Several orange puffs go flying onto the floor.  What’s fair is fair.  The girl rips into her bag of Doritos.  Now she’s up and running.  Um.  There is no way the parents are going to survive this.  So decide to put on the husband as the first witness and send him home with the kids.

9:10 all rise for Judge Lum.

Haven’t had a trial with Judge L in eight years.  Car crash case where a woman ended up with chronic neck pain.  Her husband was a member of the Grateful Dead.  Judge L overruled a defense objection to our demonstrative evidence.  We brought in a piano and the husband serenaded the jury.  They fell in love with him and well… we got a great verdict. 

Here’s the thing about a bench trial.  We don’t argue motions in limine.  We don’t voir dire a panel.  The judge walks in at 9:10 and by 9:15 we are doing opening statements.   The defendant is Metro bus.  They admit liability for the rear-ender.  There are pre-existing conditions.  A C5-6 disc replacement surgery and an arthroscopic acromioplasty (shoulder) surgery.  No wage loss.  $78K in medicals.  It all lays out quite logically.  Almost business like.  No worries about sequencing, reptile, rules, attribution bias, attention span, bonding.  Miss the jury.

We put on the husband, three family members, a family friend, a forensic mechanic by phone, a chiropractor and complete the direct of the plaintiff.

In some ways it is a bit surreal.  Am used to being paranoid, feeling the entire courtroom, being on alert at all times, looking for little signs of anything, building connections.  Judge L has been on the bench for a long time.  He has The Impassive Face down pat.  Can’t help it.  Keep trying to read him.  But his blank visage smiles benignly down upon us.  Just doesn’t seem right.  Miss the jury.

We end twenty minutes early.  Matt buys time to prepare cross overnight.

Put on big black poofy coat.  Criss cross bags over shoulders.  Walk down the stairs.  Oh ugly courthouse.  How I love thee.

Excerpt from my trial diary Nov. 2011

Photo: from King County courthouse home page (it looks better in these photos than in real life).    http://www.kingcounty.gov/About/locations/Courthouse/courthouseHistory.aspx

We should be in trial right now.  We planned on it for over a year.  Had every single witness lined up.  And woosh we are kicked to the curb.  New start date in June.

So what.  Just a few more months.  What's the big deal.

Experts are the big deal.  Doctors in particular. We have to pre-pay them to come to court. Their time is precious.  They are unhappy.  Sometimes they are more than unhappy.  Not only do we end up having to pay for their time NOT to come, we have the nightmare of rescheduling them.  Or rather in my case, John and Anne have the nightmare.

In this transcript, the gracious trial judge is hearing the tale of the doctor who had a cow.

dealing with doctors when a trial date gets moved.pdf

We wrestle while smiling.  Or not.  Through phone calls.  Email.  Across the deposition table.  Am on high alert.  Trial is supposed to start in one week.  He wants to stall it.   

Finish the deposition.  While waiting for the plane send this email.

From: Karen Koehler
Sent: Monday, January 30, 2012 2:46 PM

We are still waiting the filing of whatever motion Nick is bringing tomorrow. We have extended the courtesy of not requiring a motion to shorten time. We expect it to be filed immediately.

karen

Plane lands.  Look at email.  And see red.  Adrenaline boils within me.  Narrow eyes.  Jaw clenches.  Breathe.

From: Nick’s Paralegal
Sent: Monday, January 30, 2012 2:52 PM

Karen,

The motion and declaration were sent to ABC in Portland for filing earlier this afternoon.  Attached is Ms. D’s email to all counsel with copies of the motion and supporting declaration, sent at 2:35 p.m.  Please confirm receipt.

Paralegal

Here is what Nick's sworn declaration says:

Last week, I asked the parties to take up trial readiness and the need for a continuance in a telephonic court hearing so we could advise the Court and determine, before spending more time and effort on trial preparation, whether the trial will proceed as scheduled on February 6. To date Plaintiff’s counsel has not agreed to a telephonic hearing.

From: Karen Koehler
Sent: Monday, January 30, 2012 3:05 PM

I RESENT the fact that your motion claims plaintiff has not agreed to tomorrow’s hearing.  I RESENT it in particular because I told Nick that I would not require a motion for order shortening time.  All I wanted was a written motion to the court sometime before tomorrow.   I RESENT that I extended professional courtesy, let you skip a step, agreed to tomorrow, and that you filed a declaration that impugns my character under the circumstances.  I expect this inaccuracy to be retracted.

karen

From: Nick

Sent: Monday, January 30, 2012 5:12 PM

Karen,

I just got back to Seattle, and am going through my emails, and came upon yours, below.    With all  respect, you are mistaken.   What I said in my declaration is  accurate:   you would not agree to a “telephonic hearing.”  So…see you tomorrow.

Nick

From: Karen Koehler

Sent: Monday, January 30, 2012 6:26 PM

Nick – you are better than this.  Your intent is to mislead the court.  I allowed you to call a hearing with no formal written notice with briefing by you less than one court day before.  I told you in the presence of all parties today that you were welcome to appear telephonically we would appear in person.    You have no need to cast me in a negative light to the court.  The fact that you are choosing to do so reflects poorly back on you.

Unless you apologize, do not ask me for another favor.

Karen

From: Nick
Sent: Monday, January 30, 2012 7:02 PM

Karen,

It appears we have had a miscommunication.  See you tomorrow.

Nick

Really.  A miscommunication.  No.  Don't think so.

An hour before we have the hearing, the bailiff contacts us.  Our trial is being bumped by a rape trial.  Criminal trumps civil.  All of the rushing, working terrible hours, scheduling of experts from around the country.  All of it stops.

Our trial is moved to June. 

The defendant doctors want this LAP band surgery case thrown out of court before a jury ever gets to hear about it.   So they file four (4) separate summary judgment motions all with response due dates on the day following return from New Year's break. 

Ray says he will handle all of the responses.  This means, not just writing them.  But learning the whole case so he can write them.  Over the holiday.

Meanwhile, I am la - dee - daahing around.  But do manage to meet with our key expert and cover his superb deposition. Which helps Ray.  Other than that...

Drive to court this morning. Sit back and watch him do his stuff. 

Photo:  John and Happy Ray.  Thurston Superior Court hallway right after Judge McPhee rules perfectly.  Rock on.

 p.s.  John and Heather, the two defense lawyers writing and arguing the motions, are quite nice.

The defense attorney isn't getting anywhere with this expert witness.  So he tries a new tactic - cutting off the answers.  It may seem obvious when you are there in the room.  But if you don't do anything, the actual deposition transcript won't be so clear.   Then at trial, the defense will use the misleading transcript to impeach the witness. 

To stop this, the plaintiff attorney nees to speak up and speak often to make sure the record stays honest.  Here is an example:

 13        Q    Okay.  Now, can you rule out that the band in

       14    this case was not contaminated?

       15        A    Can I rule it out?

       16        Q    Yeah.

       17        A    No.  I think that the likelihood that the band

       18    is contaminated is far lower than an intraoperative

       19    misadventure.

       20        Q    Okay.  I'm going to move to strike the last part

       21    of your answer as not being responsive to the question.

       22             MS. KOEHLER:  It was responsive.

       23             MR. FREISE:  No, it was not.

       24        Q    Well, let me ask it again then.

       25             Can you rule out that the band that used for

                                                                    24

        1    Mr. W was not contaminated prior to its insertion in

        2    Mr. W?

        3        A    I cannot rule it out.

        4        Q    All right.  Thank you.

        5             MS. KOEHLER:  No.  He's still talking.

        6             MR. FREISE:  That's all the question asked for.

        7             MS. KOEHLER:  No.  He was -- he was breathing.

        8             MR. FREISE:  No.  He's busy trying to argue --

        9             MS. KOEHLER:  No.  No.

       10             MR. FREISE:  -- and he's not entitled to argue.

       11             MS. KOEHLER:  He's entitled to finish his

       12    answer, and if you want, you can move to strike it again.

       13             MR. FREISE:  Well, I got the answer that the

       14    question asked for.

       15             MS. KOEHLER:  He was breathing, and you just

       16    walked right over it.

       17             MR. FREISE:  All right.

       18        Q    So --

       19             MS. KOEHLER:  I'll ask it later.

       20             MR. FREISE:  That's fine.

       21             MS. KOEHLER:  But that's what happened.

In this case, no blows were exchanged.  Both attorneys smiled as they spoke.  And the record remained clear.

Twas the night before the holidays

And what does the defense do

Why - file summary judgment motions of course

In this particularly case - two

Day and night they toiled, crafting worthless pieces of fiction

Seeking to ruin plaintiff attorneys' holiday plans - what a crappy mission

Nick slithered

Dale slunk

With smiles most unpleasant

Two humorless grinches delivering their nasty presents.

Photo:  The real, sweeter grinch (by Dr. Seuss).

Okay.  Admit it. Had a drama queen moment.  But if you had been forced to listen to this expert for hours - you'd be fed up too. 

Here's a few pages of the deposition: 

toxi.pdf

Several years ago my friend and colleague Morris Rosenberg asked me to work with him to represent Nancy Callan a world class glass artist.   She was and is a fun and amazing person.   After the case concluded I visited her house/studio and bought a glass sculpture.  I also bought an modern architectural painting from her long time partner Julia Ricketts. 

When I moved out of our house of 21 years this past summer, I lifted a black and white painting off the wall for the first time in about ten years. Bought it at the Pratt art auction. Never paid much attention to who it was by. Just liked it. As I turned it over the name on the back jumped out at me. It was by the very same Julia Ricketts.  I had never made the connection even though holding them together it was clear they were by the same person.

Today, my colleague Steve H calls to see if I can try a case due to a conflict in his schedule.  I am smiling wide as I break the news to John who shudders.   He's an artist, I say.  This will be so fun!  John mumbles about our calendar situation.  He dutifully finds out the clients name.  Googles it.  Sends me the artist website link.  I look at the pictures and tilt my head.  They seem so familiar.  Really love his style.

Come home tonight and look at a small acrylic that I bought four years ago at SAM’s art gallery where they sell local artists.  The signature is indecipherable.  I take another look at the pictures on the website and the scrawl looks similar but not exact.  I then have the bright idea of turning over my painting.  And voila.  By the same person.  My new client whom I can't wait to meet!

Am on an errand.  Cristina calls.  She is answering phones at the front desk.

Yes dear.

You have a bouquet.

Really?  (voice lilts upwards).

Yep.

From who?

Do you want me to read the card.  (Doesn't wait for an answer).  It says:

Winners never quit.  And quitters never win.  Keep the faith.  Thank you for answering the call to service.  From Romero Pearson, Lawrenceville, Georgia

Wow mom.  Who is he.

I'm smiling.  He must be an attorney from AAJ who has been following the trial diary.  (The diary spanned the entire month of October. I don't publicly post blogs of trials as they occur for the safety of my client's case.  But I do diary them to closed listserves, friends and family. You can read my older trial diaries at my personal website, which I'll update eventually).

Return to the office.  The bouquet welcomes me back.  Give Cristina a hug and take them upstairs.  Think how absolutely lovely Romero Pearson must be. 

It is hard to lose a case. Harder for a client - no comparison intended.  But also hard on the lawyer.  On Sunday I spent over three hours writing notes to the many lawyers and friends who had sent sweet and encouraging emails.  My kids of course rallied around to help me feel better.  But still, there is great sadness when a client is denied what we fought so hard for.

Anyway, go about business until there's a break in the action.  Pick up the phone and call. 

Romero Pearson he says. 

Karen Koehler I say.  He's trying to figure out who I am.  I say - thank you so much for the flowers.

Ah.  I knew the name rang a bell he says.  I just didn't think you'd call.   I was in court when you were last month.  My staff and I followed your diaries.  We felt we were with you the whole time.  We couldn't wait for the next entry.  And when at the end of the case the jury found against you and your client, I thought.  I know she must be feeling down.  I'll send her some flowers so she knows that we are in this together.  I want to make her feel better.  To help her get ready for the next fight.

Romero reminded me how simple it is for us to reach out.  To make even a stranger feel special.  Appreciated.  Worthy. 

Simple but rare.

I hope one day to meet him.

Trial starts tomorrow.  There's just one little itty problem.  And it is at the end of my foot.

The saga started two months ago. (Packing whacking and a sick dog).   Basically thought the toe was chopped off but instead broke it.

Like any good trial lawyer - didn't go to the doctor.  No time for that.  Instead watched the toe swell into warm fat sausage with red black and blue tinge.  Figured it would have healed by now but oh no.

It is finally a little less balloon like.  But still red especially after running on it.  Here is the drill - tape it up and then try to pretend it isn't killing me.

Court means no blue jeans, shorts or leggings.  Suits or things that look like suits are the accepted uniform.  Also means no sandals.  For two months with the exception of running shoes, have only worn sandals.  WebMD says:  "Shoes may be painful to wear or feel too tight."  No duh.  Tried my lowest pair of heels, took one step, yelled - holy moly! - and that was that.

So tomorrow, will have to tell the judge there is going to be a wardrobe problem during this trial.

The suspense is building.  All of our exhibits have been copied and are ready to go.  We have larger than life size poster boards of images.  Witness lists done.  Trial briefs done.  Motions done.  Jury Instructions done.  Briefs contesting the other side's arguments done.  Our witnesses have been called and are on standby.  We are so ready.

We've overcome all of the attacks on the case to get this far.  Feel like the Black Stallion.  Dancing, prancing, frothing a little bit, waiting for that door to open so can GO!

Aha.  An email from the bailiff pops up.  He is a delightful chap who has been wonderful to work with.  He tells us apologetically ...a criminal case has squeezed its way onto the court calendar.  Criminal cases get to go first.  This means, we are not going out to trial on Monday.  It will be a short delay of two days so we can begin Wednesday.

Dancing and prancing stops mid bounce.  Thump.

This is not the most awful as delays go.  Had one trial that was moved five times.  Have had trials where had to "be on call" for almost two weeks - waiting to be told to show up.  So not the most awful.

But still.

We need to call all the witnesses who have made plans and have them change them.  This will cause heart burn.  Particularly with the experts who are tightly scheduled to begin with. Trial will now overlap with another case scheduled for an arbitration hearing.   It took two months for that to be scheduled.  Now it has to be moved.  Not sure if airplane tickets for that client can be refunded. 

There's no time to moan or mope.  This is part of a trial lawyer's life. 

The ringing is obnoxious.  Reach over and turn off the alarm.  Sleep in for hours it seems until finally get up at…7:45!  What time did I set it for good grief.

Do my thing and out the house to see if Nala will do her thing.  As usual it will depend on what’s going on out there.  Oh dear.  Another dog is walking its woman.  Nala stays at attention until they pass by.  Lunges and begins to act all crazy but a stern talking to makes her (kind of) behave.   A car whizzes by – freeze and point.  A leaf blows in the wind – freeze and point.   Throw in some squirrels and birds.  The dog drives me bonkers.  Time is of the essence here.  Which she ultimately remembers and finally gets the job done.

At the office by 8:30.  Grab tray of berries, rinse and take to desk.  Turn on computers – laptop and two monitors.   Wouldn’t mind a few more monitors.   Have 20 foot ceiling.  Plenty of room to stack them.

Email chase begins.  Hundreds of them will click in and out during the day.    All of our paperwork is due other than motions in limine which were turned in Friday.  Trial brief, jury instructions, joint statement of evidence, proposed neutral statement, general voir dire and a witness estimation grid.  Garth (partner) is doing most of the briefing and John (paralegal) is putting it all together.  Do this – do that – add this – add that.  What about this.  Bang bang bang.  Will we end up getting it all done and filed by 4:00.

The day isn’t limited to just getting miles of paperwork out.  Oh no.  Phone calls with co-counsel, work on exhibits, seek out second opinions on strategy.  We are rocking and a rolling.  But there’s much more to be done.  And not just involving the case.

Life doesn’t stand still for trial preparation.

Phone rings. 8:50.  Expert on another case has some questions.  Am answering them when email pops up from Paul S (partner)– where are you.  Am supposed to be on another conference call on another case that started at 9.  It is 9:15.  Get off and then get on the call.   Get off at 9:45.  Run downstairs with Nala to see  Cristina (daughter) who is covering the front desk today.  Give her kiss.  Nala gets tickles.  There’s a mediation going on down there.  Tim a lawyer from tri-cities comes out to say hi.  Chat.  Run upstairs.  Realize forgot to make oatmeal.  Pull out stash of nuts and raisins in desk drawer.

More emails and drafts of briefs are flying around.  Have about a dozen windows open on the three monitors.  Musiq Soulchild playing off the laptop.  Phone call from Jon the builder (am in midst of home remodel – currently slightly homeless but that’s another story).  Need to meet him at house at 3.  Nala wants some attention.  Get her some water.  See Paul W (partner).  Wants to know status of getting out a  big settlement package in a wrongful death case we’re both working on.  Trying to get it out today or tomorrow morning.  Our part is done but paralegals need to do all the attachments, hyperlinking and formatting.

Get email that friend is letting me stay at his Whistler condo in December.  Let  family members know to save the date.  Realize it is the second week of a trial setting.  Hope that doesn’t mess things up.  Most recent draft of trial brief pops up on email.  Send to Catherine (contract attorney) and ask her to take a fresh look for typos.  She finds some.

It is noon and have to run to WSAJ gathering downtown.  Consider skipping it as must get trial papers done.  Decide to pop in to show support and leave.  Get there and see familiar faces of the true few.  Grab small salad and one slice of cold pizza.  Listen to part of speech and ask a question.  Write and give note to Pat (former partner) sorry can’t stay.  Head back to office.

 But first a little detour to Trader Joes.  Fill bag with snacks for college care package for Noelle (daughter) so she knows we miss her.   Get back to office 1:15.  Give bag to Cristina and ask her to mail it.  Run upstairs to put a card inside.  Only have glittery snowman card in red envelope.  That’ll do.  Run downstairs.  Take Nala out for more potty time.  She knows not to mess around and gets right to it.   Rush back inside.

A few more of the briefs are now done and approved.   John buzzes.  Another conference call.   Andrea from seminarweb needs a “technical rehearsal” for seminar am giving tomorrow via gotomeeting.  Goes quickly because have done this before.  While on phone have been drafting proposed voir dire questions for the judge to ask.  Want feedback over one of the questions.  Walk  into Brad (partner’s) office.  Another lawyer friend is in there as well.  Ask them for their thoughts.   Confirm strategy.  Go back to office hit send to John and another piece of paper is done.   Email comes in from Alysha (daughter) who is in Thailand.  Needs help finding a package and a few other things.  Send back and forth half a dozen emails with her. 

Phone rings.  Need to call back.  Finish another brief.  Anne (paralegal) comes in.  Needs feedback and help on various cases.  Handle that.  Run out the door at 3 to meet builder.   Return call of co-counsel on way (bluetooth is actually not fuzzy today).    Arrive at house.  Jon is the coolest contractor.  Talks faster than me but only finishes half his sentences.  Not to worry.  Our brains are in sync and know where he’s going so answer them without skipping a beat.  He asks next half question I answer it and so on.  Nala has to go again.  She gets smarter as day goes along and realizes, she needs to move on it.  Get back in car.  Rush back to office now 4.

Thirty new emails.  Click through them.  The other side has filed a motion.  It should have been filed on Friday.  Send them an email to do it right.  This bugs me.  It cuts out a day that we need to respond.  Skim their trial brief and other filings.  Send them to Garth, John, co-counsel.  Ask partners for input.   Cristina comes in before she leaves.  Lies on floor and lets Nala play-attack her.  Gets up gives me a hug and leaves.   Decide to look at calendar to see what need to do tomorrow.  Oh great.  Video conference perpetuation deposition of a doctor who is in another state, do the webinar, and a few other things.

Kevin, partner comes in – may argue some of the trial motions for us.  Three messages are showing on phone.  Haven’t gotten to them yet.   More photos sent in by family member for wrongful death demand.  Determine which to include.  It will go out tomorrow.  Look up diagrams of orbital rim  for the case with the doctors deposition tomorrow.

Sun is making the room warm.  6:00.  If don’t leave now, sun will be setting.  Nala deserves to go for a run.

I like this defense attorney.  He seems like a nice guy.  But still, the Alpha in deposition training needs to occur:

17   Q    Okay.  So you feel that that is a good picture?
18   A    I said --
19                  MR. GRENNAN:  Objection to form.  What does
20   good mean?
21   A    I said in conjunction with the other photographs it's
22   useful.
23                  MS. KOEHLER:  Limit your objections,
24   please, to the form.  Great.
25                  MR. GRENNAN:  I'll object as I want.
                      MS. KOEHLER:  No, you will object to the
 2   form.
 3                  MR. GRENNAN:  No, I'll object as I want.
 4                  MS. KOEHLER:  No, you don't.
 5                  MR. GRENNAN:  I can object in any way I
 6   want.
 7                  MS. KOEHLER:  Well, --
 8                  MR. GRENNAN:  And I will follow the rules,
 9   so you don't have to try to control me.  I won't try to
10   control you.
11                  MS. KOEHLER:  As long as you don't send
12   messages to your witness, that's fine with me; but object
13   to the form.
14                  MR. GRENNAN:  I will object as I choose.
15                  MS. KOEHLER:  As you should.
16   Q    (By Ms. Koehler) Okay.  How many hours did Eric spend
17   on this file?

So did it work?  Well, only time will tell.  Since he didn't make any other objections will find out another day.

Sometimes the hardest thing to do in a deposition – is stay awake.

Give me an obnoxious opposing counsel or difficult witness any time. At least the deposition will be lively and fun.

Today, ten of us are in my firm’s conference room. The videographer is at one end of the conference table. At the other sits the witness. In back of him is a neutral screen. It blocks out the angels frolicking on the old antique sideboard that usually dominates that end of the room. The camera is pinned on his face. He will become the ultimate talking head. A jury will hear but never see the rest of us.

A doctor is being questioned by the defense on videotape. They are trying to impeach him. Or to find any dirt they can to use against my client.

The main defense attorney today is very business-like. He is wearing black laced shoes, buffed so there are no scuff marks. Black socks. Dark grey pinstripe suit. Four buttons on each cuff. A purple tie with blue diamonds and hash marks. A little microphone is clipped onto it. White shirt hugs his neck too tight. Can’t see the top of his collar as his chin hangs over it.

He is armed with a prepared detailed outline of questions. He has a plastic blue pen in his right hand that he plays with. He touches it to the paper with the questions. But doesn’t write anything down. He goes through the outline. Question by question. In a measured monotone. He looks over his spectacles as the soft spoken witness gives each answer.

The lawyer to my right is most likely sleeping. His eyes are closed and his shoulder just twitched. Actually it twitched so hard that it woke him up. He definitely was sleeping. Don’t blame him.

An hour passes. I manage to avoid passing out. The defense lawyers are now exchanging microphones so the next one can ask questions.

The second attorney is usually the one who goes first. He’s letting the other defense lawyers take first whack at some of the less important witnesses in the case. His shoes are identical to number one. Same black socks too. But he’s wearing chinos and a light pink shirt. His cashmere jacket is hanging off the back of his chair. And his specs are GQ appropriate. He’s wearing a tie but can’t tell what it looks like because am sitting next to but slightly behind him. Don’t feel like being elbow to elbow.

He asks questions that jab and insinuate. He’s wiley and obnoxious. Half an hour passes in a swirl of objections and all the stuff that gets the blood flowing nicely. Bless his soul.

Here are tips on how to stay awake during a boring deposition.

• Fill glass with liquid, sip til done, refill, repeat
• Sit facing window and look for anything that moves
• Do not rest head on hands
• Do not close eyes
• Do not think of closing eyes
• Do not let eyes close
• Pinch side of thigh
• Apply hand lotion
• Read the exhibits
• Mark up the exhibits
• Apply lipstick
• There's a reason why lawyers drink coffee. If you don't drink coffee (like me) then keep reading this list
• Do isometrics with shoulder blades
• Wiggle toes
• Send an internal email asking staff to turn up the air conditioner
• Volunteer to make photocopies of exhibits
• Hold breath and count to ten or longer
• Dress in layers so you can take off jacket, sweater or whatever in order to get as cold as possible.
• Write down questions you may or may not ask
• Write down questions you wish the other lawyer would ask
• If notice eyes are not open and mouth has gone slack.....WAKE UP!

Cristina asks if she can come along to the new client interview.  It is her first time.  We drive to the nursing home. 

The woman is relieved to see us.  Her family is with her.

On the one hand, am happy that can provide reassurance and help.  There are so many fears and questions when one has been in the hospital/facility for over a month.  

On the other, it is sad to see people who are hurt and scared.  As the woman tells us her story,  can see Cristina looking down trying not to cry.  My eyes well up, but am able to keep tears from dripping down face.  Not always able to do that though.  Which is okay.  There's nothing wrong with letting a hurt person know that you hurt for them.

John has given me a packet that has a retainer agreement, intake form, and authorizations.  Don't pull them out of purse until about an hour has passed.  Then this is what happens - don't let the woman sign them.  Even though she wants to.

Suppose it is because of disgusting "ambulance chaser" label that people put on personal injury lawyers.  But especially when meeting someone in a hospital or nursing home.  Don't like the visual image of having them sign papers while the attorney hovers over their shoulder. 

Instead, tell them to spend time with the documents.  At least spend the night thinking it over and making sure everything feels right. 

Is there a risk the person may talk to another lawyer and go with them.  Sure there is.  But then that means we were never meant to be together.

We stand and are getting ready to leave.  One of the relatives asks for a business card.  Our cards are quite nice.  Double sided with a pretty logo.  They are however, not in purse.  Go through the motions of digging for them.  But unlike the lawyers on t.v. do not have one to whip out.  Two of the relatives are laughing as they give me their cards.  Meanwhile, find a pen and write my phone number on the paperwork.

Suspect that many lawyers who read this blog will think am doing this all quite wrong and/or am quite bonkers.   Perhaps.

But the next day, the woman calls and sends in her paperwork.  And it feels good to know she chooses me because she really wants to.  Not because I've pressured her even one tiny little bit.

Photo:  Cristina many years ago.

Actually the headline is a bit misleading because it is not possible to ever actually like the process of flying on a commercial airplane – in coach.  But there are ways to make it bearable.  If things don’t go horribly wrong that is.  There is always THAT.  The element of “what if” to make things spicy. 

Check in online as soon as am able.  Check to see if a better seat is available. Typically will cut things a little close when heading to the airport.  (This article won’t discuss the times have cut them too close.)  Don’t like waiting.  Bad impatient person. 

Prefer packing small suitcase.  Less chance of it being lost.  Used to worry about getting on the plane quickly to make sure suitcase will fit in overhead.  Have reconsidered that.  Would rather prolong getting on stuffy plane.  Have learned if overhead is full, they will stick it in hull of plane without charging baggage fee.   You don’t have to heft it up and down out of the bins.  So now, wait til last call.

Carryon is a big soft bag.  It should have rollers but doesn’t.  Is big enough for laptop and purse.   Purse has to fit in carryon otherwise you are up to three.  Carryon holds additional essential items as follows:  1) socks; 2) microbead neck pillow with washable soft not furry cover; 3) narrow but warm blanket; 4) noise cancelling earphones – not the pricey ones – knock off version from Costco have lasted for 3 years; 5) kindle; 6) ipod; 7) two buck bottle of water bought after security (heard too many icky stories of airlines refilling big water bottles with tap); 8) food – usually a salad properly balanced with a large cookie – today it is a sprinkled sugar one (airline food is a disaster – don’t do it ever); 9) disinfecting wipes (just in case you need to use the facilities – do whatever you can to avoid doing that on the plane).

The initial set up is the most important part.

First, sit by the window if possible.  Can pretend not crammed in stockyard inside of plane belly.  The nice (nonhuman) wall of the plane is on one side.  Good to rest head against.  Prevents bobble head sleep disorder.   Avoid exit rows.  Legs are short so don’t care.  Plus you can’t recline your seats there.  Also avoid front row as can’t store stuff under nonexistent seat in front of you.

Here is the proper sequence to get settled in.

Take off shoes and store in bag.  Put on socks. Put hair on top of head in unattractive but comfortable samurai warrior bun.  Put neck pillow on.  Put blanket on lap.  Put earphones in ipod and leave on lap.  Put kindle on lap.  Hide with blanket.  Don’t put anything in gross pocket in front seat where thousands of passengers before you have put very bad things that you don’t want to think about.   Shove carryon under seat.  Use as foot rest.  And voila.  Will be comfortable for about…five minutes.

Hopefully plane takes off on time (this article won’t discuss what happens when plane is delayed.  Okay if you must know can tell you there are internal tantrums involved).  Wait to hear magic words “we have reached cruising altitude you may now turn on your electronic devices.”

Don’t know how survived plane travel before the electronic age. 

Get up at 6:00 am.   Have to drive back downtown before heading south.  Need a plan "B" in case doctors don't have access to the radiology films.  Get ready, feed and quickly walk Nala.  Write note to let the girls know she's been fed.  Wash bowl of raspberries.  Get in car 6:30.  Eat bowl of raspberries on the way.  Get to office by 7:10, run in undo alarm.  Grab computer discs, run out redo alarm.  Back in car 7:15. 

Drive down viaduct. Not going to be able to drive this way much longer.  One lane is blocked off.  The viaduct is doomed.  It is going to viaduct heaven.  Supposedly being replaced by a tunnel.  Which is too bad because it is absolutely stunning driving on this  rare sunny morning with the ocean on the right and the city on the left.

Get onto freeway.  Traffic is flowing nicely.  Ding.  Fuel light comes on drat.  Keep driving, ignore fuel light. Looking for the closest gas station to a freeway exit.  Oh there's one.  Oh, too late to get over.  Next exit there's one.  Nope.  Oh there's one.  Oh, too late to get over.  Want to find the perfect station until see the car is claiming there is less than 5 miles left.  Probably a fudge factor in there.  But can't chance finding out.  Take next exit. 

Gas station has a nice store attached.  Grab two packets of sugarfree gum.   For counterbalance grab a very necessary donut.  Oily and sugary - yum.  Get back in car and onto the freeway.  Drive.  Consume sugar/nonsugar.  Listen to oldies on ipod.

Ding.  What's that.  Not the fuel light.  Warning light says "Maximum speed".  Oops.  Have previously increased the preset manufacturer's default setting.  So basically, am speeding.  Ding.

Arrive at the hospital at 10:00.  My dear paralegal Anne has set the first deposition for 10:30.  This was so I didn't have to get up too early.  Which did anyway because needed to pick up plan "B".  Which now realize is dumb dumb dumb.  Because forgot to bring the computer's DVD drive that is still sitting on my desk.

Pull up to the emergency entrance.  Wrong.  Drive around in a circle.  Or two.  End up in a parking garage.  Pull out phone.  Refers to a map of the hospital campus.  Click on it.  Microscopic.  Can't read it.  Pull out computer.  Dial up, find map.   Am bad at reading maps.  Get out of car with computer bag and plan "B" discs but no disc drive.  Not sure where to go.  Walk a little way and realize have parked right by where need to be.  Am a map wizard queen.  Arrive with ten minutes to spare. 

Videographer and court reporter are already set up.  Have to change the set up though.  This isn't the type of deposition where the camera focuses on the head of the doctor and never moves.  (note:  never do a perpetuation deposition of a talking head - this is a guaranteed bore).

Anne has arranged with the doctor's office for this deposition to be in the hospital medical library.  All the films are stored in the secure hospital server.  The hospital computer is already hooked up to a projector and a screen.  Don't need plan "B" after all hurray.

Nic Scarpelli comes in the room.  First of the four defense attorneys.  What a gaggle.

I explain the set up and he doesn't argue with it.  We actually rub along pretty well most of the time.  Unless he's upset with me.  Hard to believe that could ever be possible.  Am such an angel.

The doctor will start off on camera for background questions.  Then will move over to the computer.  We'll have to turn off the lights since it's too bright.  The videographer will then focus the camera on the screen and zoom onto the projected images.

The doctor is right on time.  I explain the protocol and you can see the shoulders relax.  He doesn't have to leave the familiar world of radiological films.   After a few preliminaries we get right to the films.  He walks over to the computer.  And brings the images alive for the jury.

After he's finished, a second radiologist comes in.  We don't take a break, repeat the process and finish at 12:40 pm.   The defense lawyers bolt out of there.  Where did they go so fast. 

Get back in car.  Donut has worn off.  Equally unwholesome Burger King is handily right at the freeway entrance.  Veggie Burger and fries to go.  Get on freeway almost without incident. Have taken off top part of bun with goopy mayo and lettuce.  This creates a bit of instability in sandwich. Drop piece of tomato on white shirt which now has a pink speckle.   

Doesn't take the full three and a half hours to get back.  Ding!

* A perpetuation deposition is testimony under oath preserved in this case by digital recording and played at the time of trial.  Doctors are commonly perpetuated to avoid trial scheduling nightmares.

I sent my voir dire booklet to all the judges in our state.  Here is the email from one of them.

I just finished reading your SKWC “Voir Dire” article.  It was excellent, I learned a lot.  Although I believe the MacDonald’s case was from New Mexico and not California. 

I agree with some of your concerns on the judicial approach to voir dire.  The rehabilitation by the judge should not be conducted or at least kept to the very minimum.  I’m trying to figure out a balance between allowing counsel as much time as they would like and a juror mutiny as you discussed or not having enough jurors to proceed.  Also, on a multiple week trial it is very difficult to get jurors past hardship in the first place.  However, few attorneys are as passionate about juror selection as you are. 

Twice, I have had attorneys get into the MacDonald case on voir dire and their clients did well with the jury.  “How many of you know the Plaintiff was a 70 year old Grandmother whose nylon/polyester underwear melted into her private parts?”  She had three surgeries, 700 complaints, that MacDonalds deemed those complaints not worthy of consideration, etc.?  And probably a little bit of questions on punitive damages.

Most cases I hear result in what I would consider a favorable verdict for the defense (less than the defense offered prior to trial).  Your article hits on what may be some of the reasons. 

It is good to have dialogue with our judges.  Thanks Your Honor.

Everything we say can be turned around and used against our clients.  Lawyers are trained to analyze fact patterns in terms of logical progression.  A leads to B which results in C.  We think if we're logical that's good enough.  But many of members of the public don't believe a thing  lawyers say.  According to various polls, we are one step above or below used car salespeople and politicians (no disrepect intended). 

Our civil justice system was created because of the belief that the wrongdoer defendant should take “personal responsibility” for causing injury and damage.  But lately, the message of “personal responsibility” has been flipped around.  No longer do jurors focus on the defendant’s accountability.  Instead, they scrutinize the plaintiff. 

In trial, we can't expect jurors to take what we say at face value.  Suspicions are high.   This grid illustrates how our intent to communicate positive messaging may lead to the opposite result if heard by a skeptical juror.

 In trial, we can't simply speak the truth.  We also have to explain and prove why it is true.   

Judge Gonzales' courtroom has electronic sound recording.  This excerpt is of the voir dire done in 2010 in a medical malpractice trial.   It was described in the first diary entry of the Voir Dire Booklet published in 2010 (also known as the "clicking red pointed nail" entry).

Some judges permit you to address jurors by name.  Judge Gonzales  does not.  The jurors are called by their numbers.

To access the recording click here.  It is in two parts.  

 http://karenkoehler.com/diaries-excerpts.html

The WSBA declined to publish the emails between Sims and I saying they were not newsworthy.  But today these email blogs generated a firestorm of intelligent discussion on my primary email listserve. 

Tomorrow  I am being dragged to Snohomish County Superior Court by the particularly undelightful defense attorney W.P.  He is moving for sanctions against me under CR 37.  The reason - because my client's answers to interrogatories were four (4, quatro, 四, quatre) days late.  

WP finds it irrelevant that he was almost two months late in answering the discovery I sent him.    And he finds my behavior so troubling, that he's asking the court to fine and order me to pay him $1,000.

Should I greet W.P. with a wave and smile.  Should I sit next to him for an hour or more on the hard wood bench and make friendly chit chat as we wait for the court to eventually call our case.  

Don't count on it.

Read part 1 first.

From: Sims Weymuller  February 14, 2011 2:31 PM

Dear Karen,

Sarcasm is a good example.  Your email is laced with it, but it does not advance your cause.   It does, though, increase the friction of the dialogue, unnecessarily so.   That is part of my point.  As soon as we inject sarcasm, condescension or the like, the discussion gets heated when it really doesn’t need to.  If I didn’t know you were just trying to prove a point, I may respond emotionally and attack you on a personal level, and so the downward spiral would begin.

Don’t get me wrong, I am far, far from perfect on this front.  Heck, I joined the Professionalism Committee for the same reason Columbo joined the police force: make up for the bad things I have done.  But I am working to learn from my mistakes and the mistakes of others.  On the Committee, we pass those lessons on to other lawyers, especially new ones.

Though it is a bit far afield from a discussion of civility, I agree entirely that court funding is a critical issue and I think it is fair to say that WSBA is leading the charge when it comes to advocacy on this front.  A decade ago, the Bar asked the Supreme Court to establish the Access to Justice Board to address the growing need for legal services and lack of funds to meet that need.  For the last five years, WSBA has—and continues to—put enormous resources into the Justice in Jeopardy Coalition, a group specifically aimed at addressing the court funding problem.  The Coalition’s report can be found here and the Justice in Jeopardy Bar News special issue can be found here.  Additionally, the Bar supports the Alliance for Equal Justice, the Access to Justice Network, the Task Force on Equal Justice Funding.

Assuming for the purposes of our discussion that the WSBA can do more than one thing at a time, let’s talk about civility.

The question you posed doesn’t make sense to me.  Civility is a subset of professionalism.  Professionalism is a broad tent used to describe several areas including: competence in one’s practice; a culture of service; involvement in your community; a balance of work, health, life and stress; an embrace of diversity; and, as we have discussed, civility.  So I don’t think you can “act professionally and be truly uncivil” or “be professional and act uncivilly.”

By the gist of the question, I think you meant some version of ”is it better to be an effective advocate or be civil.”  That is a false choice.  I have never encountered a situation where it would improve my client’s position to act uncivilly.  I sure have encountered my share of jerks and wanted to act (and may have acted) uncivilly, but I do not think it would have (or did) improved my client’s position by any measure.  On the contrary, I have seen time and again where uncivil acts have been to the determent of lawyers and their clients alike. 

So is your gripe with the notion that lawyers should be civil or that the Bar is encouraging civility?

Sincerely,

Sims

From: Karen Koehler  February 21, 2011 10:52 PM

My dearest Sims:

I sincerely apologize for the delay in responding to your last note.  Not only was I out of town, but I came down with a nasty bug that has only now departed.

I fear that your rather scolding tone is the result of us not using quite the same syntax.  Sims, if I close my eyes I envision you writing the note in your office most probably dressed in a proper suit and tie.  Perhaps you are wearing something not quite so formal.  But I still would venture it has been ironed nicely with symmetrical creases down both legs.  Belted appropriately.  Involving buttons going almost up to your neck.  I on the other hand, am wearing my favorite pair of jeans, a t-shirt, and long since discarded any jacket for a hoody.  I most certainly am not wearing shoes.

Well, Karen you ask – what does that have to do with anything.  And I respond dear Sims (in the hypothetical of course),  Mr. Lawyer In Suit may have read too much into the more casual approach of Ms. Lawyer In Jeans.  There is quite a difference between writing a playful rejoinder.  An over the top, tongue in cheek, little piece of glee; as opposed to a sarcastic diatribe.  I mean Sims, when has a lawyer ever used the phrase “absolutely divine” when talking about a serious subject with you. 

Did I perhaps bait you by writing in a way that you could have seen as potentially disrespectful.  Sure.  Just to see if you would charge me with being disrespectful.  That is of course the danger of policing civility.  Depending upon the officer’s mindset, what could be viewed as humorous may be deemed sarcasm. Snap!  Just like that.

You have obviously spent quite a bit of time working for the WSBA.  You are a loyal leader who can defend the integrity, intent and mission of the association with poise and skill.  You are to be commended for your service.  But my purpose in discussing civility with you, was not to address competence in one’s practice,  a culture of service, involvement in your community, a balance of work, health, life and stress; or the embracing of diversity.   It was to challenge the WSBA’s civility initiative in the litigation arena. (And to keep priorities in perspective by mentioning the real threat to our civil justice system, i.e. the court funding crisis).

We litigators learn that when trying a case, one should never ask a question in opening or closing.  The concern is the jurors may answer it in a way you’d rather they not.  So, we try to make sure that if we ask a question it is so tight that it can only be answered correctly.

I asked you one question in my last note:  “Is it better to : 1)  act professionally and be truly uncivil; or 2)  be professional and act uncivilly.”  Sims, you did not answer it.  You engaged in lawyer logic to explain it into insignificance.  But you did not answer it.    Yes, it is a loaded question.  But it is also a simple one.  The answer is number two.

“The purpose of polite behavior is never virtuous. Deceit, surrender, and concealment: these are not virtues. The goal of the mannerly is comfort, per se.”  June Jordan  (b. 1939) US Poet, Civil Rights Activist

karen

Trials don't have to be boring.  The best witness is someone who can show as well as tell.  In this excerpt from my trial diary, you can see why.

Which brings us to witnesses #28 and 29.

The first owns ProRobics, a health club on Queen Anne that has been around for over three decades.  She is extremely svelte and immaculately groomed.  She’s been in the industry for 35 years.  Mimy (our associate) talks to her about the makeup of the club (40s-60s primarily).  The boomers started the health club industry and are expected to continue into their 70s.  I like this as our youngest juror is 37.   She confirms that plaintiff was a spin instructor for a decade before the crash, and that he could have taught for a lot longer.  She sets the stage for our last witness.

Clarissa (pron.  Clareeessa) bounds into the room.  She’s a small round dynamo  with a mound of electric curls flowing from a ponytail on top of her head.   She has a big smiling exuberant voice.   We are instantly enchanted.  Her mission:  to demonstrate spinning.  We brought a motion earlier to allow this, so the bike is in place.   She leaves the witness stand with a crackling brown bag.  She opens it and shows the jury her shoes.  She’s talking and explaining as she puts them on.  She shows them the bike and how to adjust it.  She gets on it.  She begins to show how it is ridden while seated.  She is talking (and frankly a little breathless).  She pedals standing up.  She shows how to adjust tension.  She is seated again and in the cool down faze.  She dismounts, places her leg on the handle bar and then stretches all the way on top of it (she is a yoga teacher too).  The whole thing lasts just under 5 minutes and we’ve been through an entire work out.    The room has converted from courtroom to celebration-of-life room because of her presence.    As she starts walking back up to the witness tand, the jury bursts into a spontaneous round of applause.  I kid you not.   I ask her if the benefits of spinning are physical only.  She says, absolutely not.  That was one of the things she liked about going to the plaintiff’s class.  She loved going because he was so fun and energetic.  And we’re all thinking – how could anyone be any more joyful than Clarissa.  Plaintiff must have been remarkable indeed. 

Jeff (the defense lawyer) does not want to try any cross.  So off Clarissa goes.  As she bounces out the door, so do our bubbles of lighthearted happiness.   The remaining 30 minutes are spent with the defense CPA Partin’s video.  Mimy and I agree Partin kind of looks like Bill Clinton minus any of the charisma.

Every once in awhile there will be a plaintiff who is almost saintly in their wonderful-ness.  I remember one darling Grandmother.  We all fell in love with her.  When she scrunched up her cute little face and talked about her sadness, jurors weren't the only ones crying.  Mary Anne was as perfect as they come.

With the occasional saintly exception, plaintiffs are human beings like the rest of us.  Jurors don’t expect our clients to be perfect.  When we try to prove they are, we set them up for failure. 

We are living in an age where The Kardashians are our favorite TV family.  Charlie Sheen is becoming even more famous as he unrepentantly unravels in the most public way.  Celebrity Rehab and The Biggest Losers rule the ratings.

Here is a picture of my mom and siblings.  We can't even all look into the camera at the same time.  My hair is a bit frizzy and my jacket is doing something strange.  My mom's last button isn't done.  And Susan's glasses need to be pushed up a little.   No, we aren't perfect.  But we stick together as a family.  That's what counts.

So next time you're in trial remember.  It’s okay for our clients to “be real.” 

It is freezing out here.  The candles keep getting blown out by the frigid wind.  We are huddled in puffy coats and blankets.  Standing on the street corner where Kris's memorial lies.  Feet away from where he was struck down in the middle of the street.

The family is accompanied by friends.  A man who has Kris' heart.  A cop and a lawyer. 

Kris was killed when he was 20.  Ten years ago.  When my girls were 11, 10 and 7.  They are his age now. 

Bill the officer and I talk about what it took to get the plaque in the square.  We insisted that it had to be large.  The City wanted it much smaller.  Then it tried to pacify us by offering to place it inside of the police station in Pioneer Square on a wall.  A temporary station that is now moved down the block.  I can remember marching out of there in a huff.  No deal. 

The City then offered to put it inside a fire station.  No way forget it we said.  They thought we were kidding when we said it was a deal breaker to settlement.  Nope.  We weren't.

Krisopher and his bronze plaque are right where they belong.  Part of the permanent physical history of Seattle.  He will never be forgotten.

King 5 news story.  http://www.king5.com/news/local/Family-celebrates-Kris-Kimes-life-10-years-after-his-death-117126933.html

The wind is whipping everything around.  Including the rain banging against the windows.   My Miami tan is covered in JBrand jeans, knee high flat boots, an H&M t shirt and a Donna Karan jacket I've had since the 90s that will never go out of style.  All black of course. 

Sitting on my psychedelic orange bouncy ball.  Staring at the two redwells of documents Anne just printed out so I could use them as exhibits.  We have four days of depositions down in Vancouver, WA starting tomorrow.   Everything is on my computer.  But we still need paper from time to time.  It took Anne about three hours to print it all out.  Ugh.

My intercom buzzes.  Someone wants to talk to me.  Sure.  Get on the phone.  For twenty minutes listen to monologue.  Person is being stalked by "mini mafias."  Four of them.  People are entering her home taking things.  They watch her.  They have gotten into her car and tampered with it after an oil change.  They probably are filming her.  They won't leave her alone   She moved to get away from them.  But they followed her.  What can she do legally.  I say - you should probably call the police.  Oh, did that.  She says.  They said I'm crazy.  hmmm.  Can't a lawyer go to court and stop them.

Tell her she can go to court and get a restraining order but she needs proof.  She should set up some hidden cameras.  Good idea she says.  Where should I put them.  We discuss this for awhile.  She's happy.  She'll probably call back one day.  Poor dear.

Go back to staring at the stack of documents.  Get a big box briefcase thing.  The kind we used before computers.  Some lawyers still use them.  Apparently including me.  Load it up.  Decide to take it to the car now and get something to eat.  Put on black puffy coat.  Get car keys.  Lug box briefcase thing to the kitchen on the way outside.  Pull meal out of freezer.  Stick it in microwave for four minutes.  Plan to pick it up on way back in.  Walk to the back entry.  Exit with briefcase.  Realize, don't have the card key to get into the office.  Reach for the door.  Click.  Too late.  It closes.

Rain is pinging off my coat.  Crud.  Go stick the box in the car.  Walk around the front of the building.  It is 6:30 pm.  Only Anne and Mimy are still there.  Push on the buzzer but no one hears it.  Bang on the door.  Sounds like thump thump thump.  Not very loud.  The traffic is louder than the noise from my fist.  The door is glass and don't want to bang too hard.  Rap on it with keys.  This is a sharper higher frequency.  But no one hears me.  Just about ready to stamp foot or start screaming.  Can't decide which. 

A huddled up woman comes rushing by. I say - do you have a cell phone.  Amazingly she stops.  If some woman dressed in black with a hood on approached me at night and asked me for a phone, I'd keep on walking.   But I must look harmless and pathetic.  So she stops and I give her Anne's number.  She dials it.  Goes to voice mail.  Drat.  Give her Mimy's number.  She dials it.  Ring. Ring.  And then thank heavens, Mimy answers.

Tell her I'm locked outside.  She starts laughing.  Click on her and hand the phone back to the savior.  Thank her profusely as she continues blowing her way down the sidewalk.  Mimy lets me in.  Shake the water off and grumble thanks. 

Climb the stairs.  Drop coat in pile in office.  Hustle to kitchen.  Food is done and now not hot.  Nuke it for another minute.  Oops now it is hot but partially hardened.  Take it back to my office.  Eat it and finish bookmarking documents.

Every day after trial, I diary the day's events.  These are sent privately to members of my attorney listserve groups and friends.  There is a trial diary section of the website where the diaries are excerpted.  Here's a segment from a trial whose verdict came in today.

Trial day 8

I’m wearing a jaunty little Nanette Lapore white jacket with thin stripes and black piping around the collar.  And a black skirt for consistency’s sake.   I call Cristina, my eldest daughter, on the way to court.  Oops, wake her up.  She asks me a few groggy questions.  I say, I’ll call you back later.  I need to get my thoughts into my head so they can come out of my mouth.    

I’ve been thinking about closing since the day Steve invited me to try the case.  They are not concrete thoughts.  I don’t write them down.  They are just thoughts that I let wander in and out as they will.  Last night, after getting back from the hospital, I eat left over phad kee mao.  Talk to my kids mainly about my mother.  Around 8:30 go to the gym.  Get on the treadmill and start running.  The clock hits 9:00.  It is the moment I’ve been waiting for.  Oprah  (channel 6 replays the show which is on in the daytime).  She has something big to tell us.  Her mother secretly had a baby and gave it up for adoption.  Oprah just learned she has a half sister, niece and nephew.   It is a wonderful show.  I’m choking up periodically which is a bit challenging when you are running.  You actually kind of hyperventilate because you can’t catch your breath if you’re sobbing.  And there in the gym, on the treadmill watching t.v. and crying, it comes to me.  The way to begin closing. 

In my opinion trial lawyers put too much faith that they can learn the craft by reading lawyer books and going to seminars. We also tend to over think.  All the lawyerish theoretical data we collect clogs up our brains.  There’s no room left for intuition and the human elements to roam freely.  The synapses become stunted. 

My parents used to shake their heads at some of the things that interested me.  Actually, they still do.   I read more popular novels than intellectual ones.  Devour the gossip rags and other mindless magazines at the gym.  Sorry, but I don’t watch the discovery channel even if I’m on a treadmill.   I’d rather watch a bad romantic comedy than see a movie about Afghanistan.  And (gasp) sometimes the national news bores me.  My natural plebian tendencies are helpful when it comes to connecting with juries.  Trial lawyers do not belong in ivory towers.

 I tell Judge H closing will take 45 minutes.  Finish one minute early.     I should go ahead and recount it for you.  You would enjoy it.  But I just can’t.  I’m always drained after closing.  Like Halle Berry in X-Men after she’s created a gigantic storm.  Totally whooped.  When it is over.  It is simply over.  No regrets.  No additional thoughts.  Just zen-like serenity. 

The cow’s inflated lungs are humungous - I am four.  The brain surgery film makes me a little squeamish - I am in fifth grade.   My dad is a professor of biological structure at the U of W and teaches medical students.  He doesn’t switch off his professor-ish-ness when he comes home.  He dissects the chicken when we are around the dinner table so we can learn about anatomy.  I grow up with a fairly clinical understanding of life and death. 

Fast forward to life as a lawyer.  At first I work for the defense.  I am taught never to show emotion.  Never. Ever.  Ever.    I am pretty good at that and thank my Chinese grandfather Gong Gong.  He had a face like a boulder.

Things change when I become a plaintiff attorney.  I am dealing with clients  who are people not insurance companies.

The first time IT happens, I am in a binding arbitration hearing.  A teenager has been killed when two other drivers crash cars going home from high school.  There is not enough insurance money to go around.  So we agree to go to arbitration rather than a jury trial.    My then law partner Pat LePley and I represent the father. Others represent the mother and the injured driver who wasn’t at fault.   We need to show that the greatest loss of all is to the father.  He lived in a log home he had built by hand.  He was married to the boy’s mother.  But when the child was three months old she left both of them to find a different life.  So the dad raised his son as a single parent for 17 years.  People don’t take enough pictures of their beloveds.  Maybe now Facebook has changed that.  But back then there were so few pictures.  There is one that stands out even though it doesn’t show their faces.  The beautiful strong man with his baby in a back pack is walking down a wooded forest lane.

As soon as I am done presenting the case, I feel IT.  IT is overwhelming.  IT is rumbling.  I do not want to show IT.  I have been trained not to show IT.  My Grandfather has genetically disposed me not to reveal IT.  But IT is washing over me.  I mumble to Pat, excused myself and barely get to the other side of the door.  The tears are falling, dripping all over me.  I let them run out.   

(Photo of my siblings and I with my dad on his 75th birthday)

My favorite time to go to the gym is 8:00 at night.  It gets dark now at 4:30.  Plus it’s cold, rainy and windy.  Even if I felt like running outside, I would have talked myself out of it.   There’s hardly anyone in the gym this late.  I have a favorite treadmill.  Right in front of the television.  A little too close.  It is mounted from the ceiling and so I have to tilt my head back a little bit to look up at it.    But it is near the window which I crack open.  Ah, precious breeze.   I always look at tvguide.com before I head out to the gym.  I want to know what channel to turn to.  This is another reason I like to go when the gym is empty.  I want to hog the tv.   

Tonight I’m a little late because I went to the lovely SGB firm holiday party at Fare Start at 7^th and Virginia.  It was crammed full of lawyers, judges and other people who help us do what we do.    I go to my favorite spot and turn the tv to channel 6.  This channel re-plays the shows that were on earlier during the day on channel 5.    In this case Oprah.  I adjust my ipod, open my water bottle, and off I go.

This is the only time I will watch tv.  Sitting still and watching tv – for me – is a horrid thought.  I can’t bear just sitting there.  I like it if I’m moving on a treadmill.  I watch it and read the subtitles.  I’m listening to my Madonna playlist.  I love Madonna. 

Tonight The Judds are on.  This is Oprah’s farewell year.  She has 130 shows left.  The Judds have been on Oprah 17 times over her career.  She adores them.  Mother, two daughters, famous as can be.  And they have laid bare their souls and bickered with each other regularly for the past couple of decades on the show.  They are some of her most beloved celebrity guests, because they lay it all out there.  They don’t try to be perfect.

Today they talk about their family drama, tools they’ve learned over the years to deal with each other,  and say hi to their therapist who is in the audience.  At one point, Wynona talks about being in the moment.  Oprah jumps on that.  She says on the elevator ride from her dressing room down to the show, she centers herself.  When the doors open, she is ready to concentrate on feeling the love from every person who is in the audience.  She is determined not to think of anything other than the show, her audience, her guests.  She wants to be fully and completely right there in the moment. 

I have been loping along for about half an hour.  I am sweating.  Madonna is bopping.  I am reading Oprah’s words.  And despite my busy physical body, I feel my energy reach out and into that tv set.  I am feeling all things Oprah and my breath catches.

Being in the moment is a subject that trial lawyers analyze, talk about and practice.  I’ve seen people try to teach it.  And I suppose there are steps that can be taken to approach it.  But truly being in the moment, doesn’t involve application of a technique.    It involves a state of being.  It requires surrender. 

Okay, don’t worry.  I’m not going to get philosophical or spiritual on you.  But here’s the deal.  To be in the moment in trial, means to clear away everything other than that which is directly before you.  And that can be very scary and leave you feeling vulnerable.

If you have notes that you are following, you can’t be in the moment.  If you have a plan that you are sticking to, you can’t be in the moment.  If you are worried about why the jury is frowning at you, you can’t be in the moment.  If you are thinking about the next witness, you can’t be in the moment.

We are four or five years old.  We have been riding our big girl or boy bicycle now for several weeks.  We don’t go real fast, because our bikes still have training wheels.  But who cares.  We like riding our bikes and it feels very fun.  One day, our parents take off the training wheels and we are not happy about that at all.  It was totally fine.  We don’t care that we can’t go that fast… Oh, our little bodies are shaking and trembling.  The wheels on our bikes are jerking around in harmony with our panic.   Don’t let me go, hold on I’m scared!  We shout.  And then with a little shove, our parents push us and…  well…Usually we fall and scrape our knees and it is a terrible thing.  But we get back up, crying probably, and get pushed off again and again until.  Wait – we’re doing it.  We’re going and not falling and….Yippeee!!!

Being in the moment in trial is a big gigantic adrenaline rush that gets honed down and channeled through us.    We feel utterly free yet completely engaged.  It can be magical.  And I can’t wait to feel it again.

Here are some thoughts on the first client interview in a personal injury case.  This approach applies to PI attorneys who do not have "mill" type practices.

• The interview is a two way street
• Consider having a staff member attend to get a second "read" on the situation
• Go to the client if they can’t go to you
• Be aware of all the details of what you are seeing, hearing, feeling
• Ask yourself if you “like” the plaintiff then write down your very first impression even if it is not favorable
• Be conscientious of the human issues and need for privacy
• Review a detailed questionairre with the prospective client
• If the quesionairre is not completed, get very particular information at least on these issues
  • what happened exactly
  • insurance
  • pre-existing injuries and conditions
  • pre-existing strengths and weaknesses
  • social media use
  • skeletons in closet
• Determine who is controlling the decision making process
• If the incident involves more than one potential plaintiff, figure out possible conflicts of interest before you enter into a retainer with any of them.
• Don't spend so much time taking notes that you don't have time to observe.
• Tell the client that they will probably have to go over the facts again with you once you are retained
• Provide credentials in addition to website
• Encourage the asking of questions and provide answers
• Do not put money value on the case even if asked – at most give ranges but don’t provide actual numbers
• Ask for any documentation that has been collected
• Find out if the client wants to be very involved in the legal part of the case or not
• Sense if anything is being withheld or if communication seems strained
• Consider what is unspoken or not easily volunteered
• Provide reassurance and comfort
• Exhibit confidence and competence without chest beating
• Explain generally how the process works
• Introduce other members of the team
• Demonstrate a commitment to personal attention
• Review the retainer agreement and procure the client’s signature
• Or use an agreement to investigate form instead
• Procure signed medical, employment and other record releases
• In certain cases, run a background check
• If the client had previous counsel, get a signed note to allow that attorney to fully communicate with you and follow through
• Do not take a case that is too close to the statute of limitations without first talking to another attorney for a second opinion.  If you do take such a case, beware.
• Turn down any case that "smells wrong"

I've walked out of mediations on him countless times, asked for then ignored his advice (countless times but with a smile), gotten mad at him, had him get mad at me.  John Cooper is one of the best.

• Do take a breath and center yourself before you begin.
• Do speak at thinking speed which usually means slow down.
• Do stand at a distance that is not too far away yet not too close to the jury. 
• Do avoid podiums except in Federal Court where you have no choice but to stand behind them.
• Don’t block the jury’s view if you are using Powerpoint or showing things.
• Do use Powerpoint and show things
• Don’t use legalese.
• Don’t start out with a long irrelevant introduction.
• Do show proper decorum at all times.
• Don’t read your notes.  If you must use notes, put them where you can glance at them.
• Don’t clasp your hands in back of you.
• Don’t clasp your hands in front of you.
• Do stand with your feet planted firmly, hands resting at your sides to begin with.
• Do allow your hands to move when you speak.
• Do project your voice appropriately.
• Do inflect your voice appropriately
• Do make eye contact.
• Don't stare down the jurors
• Do take a risk in favor of creativity every now and then
• Don’t focus on how to deliver an objection-free opening
• Do use the present tense
• Do use theme(s)
• Do tell a story
• Don’t assume you’re doing a good job because you think so
• Do watch and relate to the jurors' body language
• Do move on if the judge sustains an objection
• Don’t be intimidated if an objection is lodged against you
• Don’t try to be amazingly persuasive
• Do focus on establishing credibility
• Do anticipate the other sides' arguments
• Do give thought to how you are going to sequence opening
• Don’t explain the law
• Do explain the facts
• Do focus on being helpful
• Do make promises you will keep
• Don’t make promises that you can’t keep

Once upon a time, there were three little lawyers  They were sent out into the world to fight for justice for people unfairly injured.  Shoulders back, heads held high, arms swinging, feet marching. They were filled with a sense of righteousness and faith in the Seventh Amendment.  Optimism permeated their beings as they set up their houses.  They couldn’t wait to get to trial.  The ultimate tribunal of truth.  Oh the joy!

The House Of Straw.

The first little lawyer had a great voice.  It was mellifluous in a most magnificent way.  It would bounce around the edges of a room and seep into the very pores of the listener.  It was a voice meant for storytelling around a campfire.  Dressed up it could have held its own in any theater.   It was a voice that could entrance and enthrall.  And what it needed to do one fine Thursday afternoon, was to convince a jury that an injured person deserved a fair shake.

The case had strong points and not so strong points.  The  lawyer figured – why bother talking about the weaknesses when the strengths were so much more interesting and beneficial.  The jury instructions were…well, they were boring jury instructions.  So the lawyer decided not to waste a moment with those.    The plan was simple and straight forward.  Talk about the good things in the most wonderful way and the jury will vote for the plaintiff.  Yay!

 "Little pig, little pig, let me in!"
"Not by the hair on my chinny-chin-chin!"
"Then I'll huff, and I'll puff, and I'll blow your house down!

The case though prettily presented, was nothing but straw.  The cynical jurors didn’t believe the truth was remotely close to that espoused by the plaintiff lawyer.   Just a few puny puffs from the Big Bad Wolf was all it took.  Heck the Big Bad Wolf could have probably just leaned against the house and it would have fallen down. 

Moral of the story so far: 

1. Don’t believe that your personal presentation strengths alone can overcome a jury’s skepticism.  You are not seen as the truth, the light and the way.  You are seen as manipulative and self serving. 
2. Avoiding tough issues highlights the holes in the case and proves to a jury that you are not credible and have no answers. 
3. Good closing arguments don’t equal a linear rehash of your favorite parts of a case.  The only person who is persuaded by such an approach, will be you.

 The House of Twigs

The second little  lawyer had an exquisite eye for detail.  Every possible tidbit of information was discovered, retrieved, summarized, itemized and buffed to perfection.  A glorious mountain of data was amassed with meticulous precision.  Every fact and nuance of the case was accounted for with specificity.  The  lawyer left nothing to chance, confident that the jury would surely be impressed by such utter thoroughness.

In trial, logic reigned supreme as fact after precious fact was laid out before the jury.  The  lawyer started from the beginning – the date of plaintiff’s birth to be exact.  Family members recalled lovely memories of the plaintiff’s childhood, adolescence, college, marriage, the birth of two children.  Coworkers described every job held peppered with anecdotes.  Neighbors commented on gardening and daily activities they had seen for a decade.  Witnesses described the injury incident for a full day.  A parade of healthcare providers and experts went over every chart note, every item of damage, every single piece of everything.  The crowning moment of glory though, was saved for the plaintiff.  Just in case the jury didn’t get it the first time, the lawyer had the plaintiff start at the beginning and tell their whole life story again.

Now the  lawyer had heard that repetition was the key to persuasion and the number three was golden.   The lawyer worked all night to create the perfect closing masterpiece.  The next morning every single fact was recited and every strength and weakness analyzed. 

"Little pig, little pig, let me in!"
"Not by the hair on my chinny-chin-chin!"
"Then I'll huff, and I'll puff, and I'll blow your house down!"

The case though fastidiously presented, was nothing but twigs, albeit a lot of twigs tightly woven together.  The jurors did not have the interest or energy to try to absorb the mass of data presented.  They agreed the lawyer was very prepared.  But they gave up trying to sort through the evidence.  The Big Bad Wolf had to blow a bit harder this time.  Little puffs wouldn’t do.  Still, without breaking a sweat, the wolf clapped with glee as the house came a tumblin’ down.

Moral of the story so far:

1. Preparation is good, but it alone won’t win the day. 
2. Simple is almost always better even though we have been trained to obsess over complexities and details.  The more we crowd into our arguments, the harder it becomes to convey a message.
3. Good closing arguments don’t equal a rehash of every case element and argument.  The only person who is persuaded by such an approach, will be you.

The House of Bricks

The third little lawyer had been watching the Big Bad Wolf’s carnage.  Humbled, nervous and frankly frightened, the lawyer spent every spare moment devising techniques to deal with the beast.  Determine best personal presentation attributes – check.  Learn and prepare case details – check.  But there had to be more.

At first the lawyer thought there might be a failsafe technique that once perfected would always work.  If sequencing always occurred just so… if the plaintiff always presented the same admirable traits…if the theme tied everything together... if rules were shown to be broken… if the defendant was exposed as a danger to society.   But the formula never worked the same way in all circumstances.  Plus the wolf was wily. 

The quest for the holy grail of trial advocacy was an exhausting process.  One day, tired of searching for the key to it all, the lawyer fell asleep and dreamed about Kindergarten.  Upon awakening, the lawyer recalled the dream and had an “aha” moment.  Mrs. Pasco, had been the lawyer’s Kindergarten teacher.  She had blond hair that flipped upwards in a perfect “U” at her shoulders and groovy black rimmed cat-eye glasses.  The two best times of the day (other than recess) were: story corner and show and tell. The worst time was having to lie down and pretend to take a nap.  The lawyer recalled a popular book that was called “All I really need to know, I learned in Kindergarten.” (Robert Fulghum 1986).  The lawyer figured if it was good enough to stay on the New York Times best seller list for two years, it was worth trying out.

The case went fairly well.  Nothing was perfect, but the lawyer was prepared, practiced deep breathing, and used many different trial techniques.  There were details, but set in the clear context of a big picture.  There were many witnesses, but they did not repeat the same testimony.  The plaintiff testified but not overly long.  Tying everything together was a case story that began in voir dire and culminated in closing.  There was a moral to the story, a cast of characters, and action involving a dramatic conflict that needed resolution.    During closing the lawyer showed as well as told by using visual aids.  Statements were objectified and supported with proof. 

The jurors listened intently because the storyline helped so they could follow along with interest.  They stayed awake because the pictures kept the story alive.  They appreciated not being patronized.   They were moved.

“Little pig, little pig, let me in!"
"Not by the hair on my chinny-chin-chin!"

"Then I'll huff, and I'll puff, and I'll blow your house down!"

Well, you know the rest.  The Big Bad Wolf came a calling.  He huffed and he puffed.  He puffed and he huffed.  He pushed, kicked, pounded and blew as hard as he could.  But nothing fell down.  He threw a ladder up against the house and scrambled down the chimney. But the plaintiff’s lawyer was ready with a fine and honed rebuttal.  The wolf fell into the boiling pot of water, howling as he jumped out and rushed away.  As he limped off, his big ugly mouth sneered into an evil smile.  For this was only a temporary setback.  There were after all enough houses of straw and twigs to keep him busy for a lifetime.

Moral of the story:

1. Humility and hard work create strength.
2. Tell a story
3. Show and tell
4. By using your personal attributes, preparing well, and devising a good plan that helps the jury see, hear, feel and smell the case, you can stave off the Big Bad Wolf;
5. Even if the Big Bad Wolf can’t blow your house down, there are still hurricanes, floods and earthquakes to consider.

 THE END

POSTSCRIPT

Once upon a time, I worked in a 50 person firm that handled insurance defense.  My first win was a defense verdict in a premises liability case.  Nine years later my last win, was strong arming a little old lady and her son into accepting a small sum of money mid trial in a wrongful death case.  I was a big bad wolf. Mix and match some of these strategies for an effective closing argument

• Tell a story, but not if it is exactly the same one you used in opening
• A jury will not punish you for putting creativity and passion into your presentation
• A jury will punish you for exaggerating or overselling your client's case
• Use quotations, song lyrics, poetry to communicate on a deeper level
• A short civics lesson can inspire
• Use a literary theme involving a universal aspect of the human condition
• Show visual images, but not if you are doing so in the same manner and for the same reasons that you previously showed them
• Do not say these words: “you heard from witness X that …”
• Take enough time to explain key jury instructions but that does not mean re-reading them to the jury
• Show and tell
• If you are using PowerPoint and find yourself facing the screen, you’re doing it wrong
• Almost no lawyer talks too slowly
• Use analogies or other helpful modalities to convey messages
• Remember this is argument
• Unless you are providing information that will help the jury do its job, you will be tuned out especially the longer you go
• Almost no lawyer talks too little
• Demonstrate something
• Make sense of the evidence
• Don’t shy away from negative issues – embrace and own them
• Look at and speak to  each member of the jury at various times in a natural fashion
• Charts and diagrams can be helpful
• Do not read from a script

I rush from the courthouse with purse, computer bag and handy firm reusable shopping bag flapping against my sides.   I'm late to a perpetuation deposition of a doctor.  My co-counsel Matt and I, planned for this contingency earlier in the morning.  He would start the deposition and possibly finish it if I couldn't get there on time.  But things are looking ok as I run on my tip toes since I don't have time to throw on my walking flats. 

I only need to rush for about a block.  Reach the Bank of America building which I will always think of as the Columbia Center, and take the two elevators up to floor 72.  Go strait to the conference room where the videographer is all set up, the court reporter ready to go.  I say hi to Marvin the defense lawyer.  Matt and Dr. Seroussi tell me they want to talk to me for a minute so they walk with me to Matt's office.  Have a brief discussion.  Go back to the room having decided that Matt will go ahead and take the deposition and I will assist if necessary.  We all squeeze in.  Matt's paralegal drops off a file.  He introduces me to her and I shake her hand.   Deposition begins.

At various points, I type up questions on my computer and show them to Matt who asks them.  I consult with him.  He finishes.   Marvin goes for about half and hour and the doctor needs to leave but we're not done.  I ask Marvin how much longer he's going to go/drone and he says at least another hour.  To which I say something like - good grief, or you got to be kidding me or, something equally incredulous but not nasty.      He starts justifying the length in a humorless defensive way and I say whatever.  We then work out the logistics of how to schedule the remainder of the deposition.

Remember now,  I came here directly from court.  I am in very cute prim and proper shoes, a black jacket and skirt and white shirt.  My hair is tied back and I have been interacting with everyone in the room for the past almost two hours.  As we begin to pack up, the court reporter comes up to me and says the 4 words that I have been hearing my entire career.  I never know exactly when they will come.  I never know who will say them.  I thought as I grew older they would fade away.   They are most commonly asked by women who are older than me like this reporter.  But once a judge said them to me in open court.  I've never heard them directed at one of my male colleagues.  Not once.

I should be immune to these words.  I shouldn't let them bother me.  They seem more disparaging today, because I've just spent two days in trial against skilled women defense attorneys.   I might not like the side they are on, but how cool is it that these women are so excellent at their craft.  So respected, feared, yes disliked too.  To go from that to this.  I guess that's why I am so disappointed.

So what are the words?   Are. You. A. Lawyer.

In Oregon they don't do many depositions.  They have trial by ambush.  At times I wish we had that kind of a system in Washington.  Instead, we've decided it is most fair to exchange information.  I've been in thousands of depositions by now.  Because I'm not paid by the hour but rather by percentage, I have no desire to waste time.  I've taken depositions in as little as 15 minutes and as long as a couple of days.  In general I can get information out of a party or an expert in two hours or less. 

My opponents get paid by the hour.  This means they can waste time.  This means generally they do waste time.   Today for example, the defense lawyer spent two and a half retched hours before he asked our expert what his opinions were in the case.  Two and a half precious hours of life asking questions about things like where the expert worked a decade ago.  Even though the lawyer already knew this information.   My hair was standing on end I swear.  As bad as this was, I've suffered through worse.  At least this lawyer was an intelligent time waster. 

One of the benefits of being ADD or whatever it is that I am, is that I can do more than one thing at the same time.  This means I don't have to just sit there and suffer until I explode.  Here is the list of things that I do when depositions get boring.  This only happens when the other side is asking questions as I'm always fascinating.

• eat something - today I ate an entire pint of raspberries in the morning and half a pomegranate - seed by painstaking seed in the afternoon.  It was worth the mess.


• take off my shoes and put my feet up on another chair


• answer and send email


• write letters


• write legal documents


• write seminar papers


• email my staff to see how they are


• see how many linkedin contacts I have as compared to Kevin (my partner is way ahead of me, drat)


• catch up on my facebook friends


• fall asleep - this is bad but rare so long as my computer is working I can avoid this


• blog


• text with my children


• stand up and pace


• watch nala on the downtown dog lounge web cam


• go to the bathroom every hour just because it's more interesting than what's going on in the room


• drink tea which gets cold quickly so I need to make more tea to drink which gets cold quickly repeat


• roll my eyes


• wiggle around in the chair


• read the news online


• twitter

I am having a very nice conversation with a strikingly attractive woman.   She seems to be about my age.  We have alot in common and are getting to know each other.   We are begining to form a human bond.  Or at least we are trying to.  There's an impediment.

Her eyes are twinkling. She is smiling.  But the finer movements of her face are absent.  I'm trying to mirror her subconsciously because that's one way humans connect on an emotional level.  But I'm not sure if I'm succeeding.

A trial lawyer must be able to gage a witness instantly and intimately.    I usually do this naturally quite well.  I'm stymied.  It feels a little strange.  Not bad.  But disorienting because I like her but can't quite reach her.  Finally I realize the problem.  It's botox.  

I am going to have to give this more thought.  Movie stars get the most publicity.  But  facial muscle freezing is one of the most common procedures now.  I need to be able to identify it more quickly.  Otherwise, I may be selecting a jury and getting mixed messages from someone simply because their face is not in sync with their feelings.  Or the jury may think a witness is cold, or unbelievable. 

This also means that I better embrace my wrinkles because  I need a jury to believe that I am me.

 These are the bones of an inspirational speech I've given a few times to trial lawyer associations.  The Ps inspire me and hopefully they will do the same for you.  Please add to this list and pass it on to another trial lawyer.

Passion - The ability to throw oneself head first into a cause with heart, mind, body and soul.  Strangers who observe you can see the energy, dedication and belief emanating from your pores.   Without passion we cannot advocate.

Principle -  A wise older attorney once said – “you should never sue just as a matter of principle…the court system is expensive, the process tough, and ultimately it could cost you a lot of money which you will never get back.”  On the other hand, sometimes the right thing to do is to sue just for the principle of the matter.  

Persuasion - The key to being able to persuade is knowing you are on the right side.

Perspective – There are many different perspectives involved in having perspective.  Here are two examples.  1) In the courtroom you need to convince a judge or jury.  But are they seeing the evidence through the same colored glasses you are wearing - if not what do things look like through their lenses;  2) Sometimes attorneys can become too biased in favor of their client.  Have you performed a reality check to make sure that you are truly seeing what is there to be seen.

Personality –  We all had personality before we went to law school and were taught to think and act like boring lawyers.  Stop talking so much.  Listen.  Feel life through your client’s eyes.  Wear a color.  Write like a journalist.   Smile inside and out.  Videotape yourself talking and ask  – if I was listening to this person, how long could I bear it before I tuned out.  Become “you” again and you will become a better attorney.

Power - The judge has power over the courtroom.  The jury has the power to enter a verdict.  The other lawyer has the power to put up a fight.  Different witnesses have more or less power to tell their story.  The two parties have the power to have their day in court.  It doesn't help to worry about anyone else's power.  You have your own power - use it wisely and never give it up. 

Preparation – There is no substitute for preparation.  An attorney with a silver tongue may be able to “wing it” and there may be moments of brilliance -  but there is also a great chance the attorney will flop.  If an attorney has a silver tongue and is prepared, there will be good consistent results.   If the attorney is prepared but does not have the “wing it” ability, at least the attorney will be prepared.

Professionalism -  There is alot of talk by bar associations that we must be kind to one another. But lawsuits are battles.  Sure we can strive to  fight with respect, grace and dignity. But trial attorneys must be aggressive, passionate, effective and tireless advocates for the sake of our clients and the cause of justice.   Our politeness comes with teeth.

PowerPoint -  Technology has revolutionized the way we can present cases.   Now we can show and tell within a tight budget.   Attend a local workshop, enlist a child aged eight on up, or get a “dummies” guide.  But learn how to use this tool.

Perseverance -  They punch you.  You pop back up.  They punch you.  You pop back up.  They punch you.  You pop back up.  Over time good things can happen.  Momentum even on an impossible case can shift.  Never give up until there is nothing left that you can possibly do to win.

After the weather made a fairly poor weekend showing, I wake up to fabulous blue skies.  This means that I arrive at the office in a sleeveless  lace t-shirt top and cropped jeans that end at the knees.  As I look over my calendar I realize - darn.  Double darn.  We still don't have confirmation on a deposit of a verdict in a  minor's blocked account.  I need to go to court at 1:30.  Fortunately, Ed is coming to the office so he grabs a skirt and I'm good to go. Or at least I think I am.

I park in one of the ridiculous hole in the wall expensive parking garages (11.95 for 2 hours), and begin walking up the street expecting my skirt to float in the sunshine along with me.  But it is not floating.  It is clinging.  It is like one of those awful commercials for anti-static dryer sheets.  I look like I'm wearing skorts.  I keep my chin held high and make eye contact with everyone I encounter - this lessens the odds they will be looking at my horrid skirt.

The misery of ex parte is actually not too bad.  The court commissioner accepts my explanation, and I'm out the door in half an hour which means I can drop in and watch a little bit of a trial.

My best friend is defending a couple sued by a real estate development company for cutting down (depending on which version you believe) "Laurel Trees" or "Bushes" along a border.  FYI - I look up laurel in wikipedia which says it is a bush but what does wiki know.

The development company's lawyer gets up to give opening statement.  He starts off with one entire minute of thanking the jury for coming and telling them how precious their time is.  Note to self:  get to the point right away.  He doesn't introduce his clients other than saying : they are XYZ land development company whom I'll refer to as Land Development.  This means that he has now further depersonalized his client.  It is an inanimate corporation.  How does he expect the jury to bond with a thing.

I rate him like I would one of my lawschool students.  He's not bad.  But he could be better.   He is fairly eloquent but just not as self aware of what he looks like as he should be.  He places his notes on the bar below the Judge's bench.  He then leans to his right on the bar much of the time, propping himself up.  His hands are clasped in front of him, or in a pocket.  Once in awhile they escape and when they do he moves them nicely.  

He goes on for about 15 minutes which is a decent period of time.  He doesn't show a single visual which makes it difficult to follow since he's talking about north this south this perimeter that of various property lines.  As he describes the trees that were cut down my number one thought is - I want to see what he's talking about.  The jurors do too.

His pet phrase is "the evidence will be..."  This is repeated more than a dozen times.  Which is why by the time it is my friend's turn, one of the jurors is already asleep.  I watch just to make sure.  She isn't even trying to pretend she's awake.  Sometimes when jurors sleep, their heads will jerk, their eyes will roll open periodically.  Here, we're talking about good quality sleep and it is still opening statement.

I watch my friend's opening which is more lively.  She uses powerpoint and blow up pictures and the jury is straining forward to see them.  All that is, except the sleeper.

In search of food at the President's Reception

I fly with my eldest daughter, Cristina, into Redmond OR. I do this not only because I have been dreading the seven hour drive, but because I was scheduled to start a trial in Idaho on Tuesday. Trial settled a few days ago but lucky us, the airplane company doesn't believe in refunds.

We drive up to our condo which Cristina dubs - The Tree House. It looks like Little Red Riding Hood's grandmother's shingled cottage but not in a particularly good way. The carpet is grayish green. The furnishings and linens are immaculate but circa 1970s. The most fascinating room is the bathroom. The green glowing walls are graced with a wall paper border of scampering chipmunks and bunnies. The shower stall is paneled in wood. Cristina says - is this a joke - and she jumps in to show me that the shower head is situated just below her chin.

We hustle out the door. It is 85 degrees. She heads off to the pool first dropping me at "The Homestead" which is our meeting place. The only reason I am going into a windowless lodge at 2:15 pm, is because David Wenner is speaking. If he was in a Disney cartoon, pearls and precious gemstones would be floating out of his mouth. He (along with Greg Cusimano) developed AAJ's jury bias model. I'm a confessed groupie and belong to their AAJ jury bias litigation group. I pay homage for a few hours. I wish someone could invent a convention room where we could be on treadmills or ellipticals or bikes, or on yoga mats. I really have a hard time sitting still even when someone great is speaking.

It is late afternoon and I go for a run. The bike/running trails are quite wonderous. It is very hot, but thanks to the shade from 100 foot Ponderosa Pines, it is quite bearable. My goal is to get back at 6 so that we can hustle to the President's reception. But as I run around, I stop paying attention and after awhile find that I am way off track. 2 chipmunks and a doe later, I'm back at the cottage. Cristina and I are ready in 10 minutes (nothing fancy thank goodness) and it is off to the reception.

Around the backside of the pretty lodge, out on the lawn, there are hundreds of attorneys and guests milling around. I greet Clare and our lovely WSAJ staff and say (jokingly) is there still food? To which they say (not jokingly back) um... no. What?! We are only after all an hour late. That's fashionable right? As we make our way back to where the food may or may not be we quiz our friends along the way. Did you get food? Is there still any? It takes 20 minutes to wind our way through the crowd and our hopes are dim so we're in no rush anyway. Finally we spy the tables. They are, well, they are pretty much empty except for the place where they still have a spit of meat they are cutting chunks out of which is not too appetizing for a vegetarian. So... we go back to chit chatting as we slowly wind our way back on out, into our car, and onwards to find some vittles.

Eventually the mission is accomplished and we return to our cottage. I go to look at tomorrow's schedule and realize, it's the awards luncheon. I am to present the Trial Lawyer of the Year award. Gerhard told me I have three minutes. I look through some records and lay out a few thoughts. I'm a very bad speech writer. When I was president, Gerhard used to sweat because he never knew what I would say. I need to "feel" what I'm saying. He would give me a nice little script. And I'd thank him and then say something completely different. Bet you're wondering who's going to get the award eh?

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