The Velvet Hammer™ -

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

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

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

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

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

(Video playing).

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

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

(Video playing.)

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

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

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

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

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

Do people want to stand up while I do this?

THE COURT: Do you need to set up?

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

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

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

THE COURT: Do you need a laser pointer?

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

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

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

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

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

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

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

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

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

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

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

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

(Video concluded.)

Visual by Duane Hoffman

We are rewarded in school for using sentences so complex, that the reader or listener is virtually tortured by them.  As grown up lawyers this means we tend to spout legalese to normal people.  How as trial lawyers do we shrug off these intellectual habits.  So we can tell a good story.

Look at these tips from C.S. Lewis (he of The Chronicles of Narnia fame).  This is taken from a letter he wrote to a young Fan in 1956.

What really matters is:–

1. Always try to use the language so as to make quite clear what you mean and make sure your sentence couldn't mean anything else.

2. Always prefer the plain direct word to the long, vague one. Don't implement promises, but keep them.

3. Never use abstract nouns when concrete ones will do. If you mean "More people died" don't say "Mortality rose."

4. In writing. Don't use adjectives which merely tell us how you want us to feel about the thing you are describing. I mean, instead of telling us a thing was "terrible," describe it so that we'll be terrified. Don't say it was "delightful"; make us say "delightful" when we've read the description. You see, all those words (horrifying, wonderful, hideous, exquisite) are only like saying to your readers, "Please will you do my job for me."

5. Don't use words too big for the subject. Don't say "infinitely" when you mean "very"; otherwise you'll have no word left when you want to talk about something really infinite.

This is pretty good advice.

Photo from C.S. Lewis Wikipedia

The air starts crackling.

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

 Am thinking – uh oh.

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

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

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

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

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

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

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

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

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

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

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

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

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