Trial Diaries
In consideration for the privacy of those involved we have changed the names of the below mentioned.
Trial Diary "Are you an attorney?"
2007
The jury comes in and preliminary voir dire begins with the judge. I write down that Judge C seems “earnest and accommodating”. He has a nice easy manner born of long practice. We go on break and resume our places. Before the jury re-enters, the Judge leans over the bench and says – Ms. Koehler, are you an attorney?
Now, I have been asked if I’m a court reporter before (many times). I’ve been asked if I’m a client or a witness. But never by a judge in open court during a jury trial. And so, I am not completely absolutely shocked. But I do have an expressive face and I’m not sure that I perfectly control it when I say to the judge – Yes Your Honor, I am. And so, instead of one hundred percent concentrating on the jury, I’m thinking – what the heck. When I was younger, I really did look young. But I’m older now so that’s not a reason. I wasn’t dressed casually – I was in a skirt suit. I even tied my hair back. So not looking professional wasn’t a reason. I was the attorney most vocal in the discussion about voir dire, so lack of experience wasn’t the reason. All of these thoughts move through my mind in a quick swirl and then I shove them aside, with one objective thought remaining – the judge sees me differently than Paul and Randy and Randy and Bud.
Trial Diary "Spitting and scratching"
2005
I pull over the skeleton. The defense doctor’s thinking we want an anatomy lesson. Oh no. I pull out the Minerva brace and have him put it on the skeleton. I’ll bet money it’s the first time he’s ever put a Minerva brace on anything. He’s not particularly skilled at it and ties the bottom pieces of Velcro together rather than lacing them through the available hardware. I have him explain how other parts of the body are impacted when it is held in a clam shell for 3 months. I leave the skeleton standing there in the body brace for the rest of his testimony.
I avoid being deliberately hostile or aggressive though occasionally I can feel myself getting ready to let loose. He is hostile, aggressive and condescending. 5 or 6 times he proclaims that he doesn’t want me to mislead the jury. Instead of climbing down his throat – I say, of course I would never do that. I bend over backwards and let him insult me. Every so often I gently move to strike his answers as being nonresponsive. Each time I do, the judge grants the motion.
Trial Diary "Arm muscles"
2005
The value of a great associate. The first time Steve helped me in court he was still a law student and read the part of a doctor in a deposition. Today he picks up Dr. Adams, brings him lunch and drives him to court so that he can prepare him for testimony. It’s direct exam time and we have power point going, a full size skeleton, the doctor is really good at using everything to explain the injuries. Now it’s time for the imaging studies using a light box. Oh no, nothing to prop it up on. So Steve holds it aloft. I can see his arms shaking after awhile. The thing has to be a yard wide, 30-40 pounds and is just completely awkward. I go up to him and whisper, do you need me to help. And there in the middle of trial with our witness educating the jury and surrounded by the solemnness of the occasion, Steve says with that little wry grin of his – “not to worry, I have it propped on my gut.”
Trial Diary "Teeter totter"
2005
Every once in awhile an exceptionally great case comes along that we love every minute of trying because it is such a winner. The rest of the time we deal with reality. There’s a constant balancing process of being an advocate focused on the positives of the case tempered with the need to be objective. Having been a defense lawyer perhaps I spend more time than most on the downside of that teeter totter. I’m always trying to see the case as clearly as possible and to feel where the jury is coming from.
Trial Diary "One Shoe"
9.28.2004
Trial Day 2
I realize something’s missing as I’m packing my bags onto my rolling cart in the parking lot by the courthouse. My left shoe. I look all over the car for it, until there’s no time left and wearing flip flops, I enter the courtroom as the clock strikes 9:00.
Judge walks right in ready to go.
Um. Your honor, I have a bit of an unusual situation that you should know about. I say, standing in my lovely skirt and jacket.
Well, yes, I understand about the witness, he remarks, referring to the main treating doctor who was to be called today but whose father died the day before trial.
Your honor, it’s not that, I respond, this isn’t as serious, but it is pretty unusual.
Smiling in his good natured way, he raises an eyebrow? Yes?
Well, somehow in the hustle and bustle of moving bags here and there, I’ve lost a shoe.
The eyebrow is raised a bit higher.
Quickly I explain, I actually have my flip flops on, but the shoes I was intending to wear in court, um, only one made it.
At this point the judge has lost it as well as everyone on the bench, Matt Shoemaker, heck everybody is now looking down at my feet.
Luckily I have an extra pair at my office and someone is driving them down, I explain.
But we don’t want the jury to wait, everything is ready to go. So the jurors pile back in and the judge asks me pseudo sternly, to explain my "situation". At which point, I flip flop out from behind the table, apologize for my wardrobe deficiency, then proceed to call defendant as plaintiff’s first witness.
There’s something freeing about examining a hostile witness with one’s tootsies twiddling about...
Trial Diary "Cut Throat"
2.24.2004
Trial Day 3
I walk into the courtroom and the defense attorney wearing a lovely (intact) suit greets me with "uh, you didn’t post THAT on the listserve did you" "Of course!" I say with gusto and glee. "You must embrace it – the tale of the duct tape is a classic". What a good sport she is. Of course, during rebuttal I tell the jury she was being "nasty" but that’s another story.
Closing is interesting. I give it from the perspective of (having been one) a defense lawyer out of "respect for my client because he is a conservative defense lawyer who wants this case to be valued in a way that coincides with his beliefs." I tell them when I was a defense lawyer we would look at various factors, weigh them and that in this case I would apply a multiplier of 4 x specials (whatever those may be). We do not get a lighting up instruction, just aggravation. Case goes to the jury at 10:45 and at 3:30 the first question comes in. What was the date plaintiff slipped when carrying a stairmaster. We decline to answer the question but in case you want to know – three weeks after the collision. Apparently they couldn’t find it in the medical records and the (real) defense lawyer had bungled the dates during closing.
I find it interesting how long juries deliberate – at this point, they’ve spent more time chatting than we spent putting on the case in chief. Anyway, they don’t finish and so will return tomorrow to finish things up.
As usual at the end of the case, Judge Maxx invites us back in chambers and we have a lovely conversation. I tell him it is a total pleasure to try a case in his courtroom.
Trial Diary "No Drama in PI Cases"
01.08.2008
Trial Day 6
Well, it really starts the night before as we are leaving court. As we are walking down the long open hallway on the top (4th ) floor of RJC, we hear wailing and yelling. I am not paying it much attention but Kevin stops me and says, turn around and walk back. It is the defendant wife.
She is on the entire other side of the building, crying and yelling for everyone to hear. Luckily we had been doing motions so the jury had been excused and hopefully had left the building by that time. "I’m going to lose my house. You’re going to take my house" "How can you live with yourselves." We hear her husband eventually get her into an elevator. Wow. So much for no drama in PI cases.
Actually, I tell Kevin it really is his fault. In his typical zesty fashion he’s sent off not one, not two, but probably six letters within the past few months reminding the insurance company that if they don’t pay policy limits and we get an excess judgment, the defendant’s lovely home will be at risk.
Trial Diary "Duct Tape"
2.24.2004
Trial Day 2
Trudging into the courthouse, mentally bracing for another day of …difficult testimony…I feel my spirits brighten the closer I get to the courtroom door. The case isn’t perfect, it’s not of life and death importance, but being in trial gives me a wonderful feeling of contentment and excitement. Something neat always happens.
A juror is late, we take care of little details, and then there is a flurry of words coming from the defense attorney. The judge sans robe is standing by his doorway. It takes a moment for me to clue in to what the lawyer is saying. Something about a diet and it being a rushed morning and she forgot a document, and then she just spews it. She may need to take a break because she bent over to pick something out of a box and …rrrrriiiiippppp! Her pants split from waistband to inseam. The judge looks nonplussed. Uh… I volunteer to search for safety pins in my purse. Our client suggests paperclips. All of us are looking at those big black metal clamps…nah. I offer my overcoat. The judge goes back to wait for the juror. It’s now 9:30, no juror so the judge comes back out with the clerk and says we’re going to start without the juror, where’s the defense lawyer. And I (who have managed to keep a straight helpful sincere face throughout), bursts out giggling – "Your honor, she’s…duct taping." Marvin, the court reporter had come to the rescue.
The rest of the day in order to prepare our witnesses for cross exam, I gave them a very simple instruction to help them remain poised and collected: "Just visualize duct tape." It worked.
Trial Diary "Smiling Myrtle"
4.6.2009
Trial Day 3
Today is quite productive as we fly through the witnesses (third eye witness, flight certification physician, human factors expert Will Bee). Things are going as well as I could have imagined. The third eyewitness (then first officer now captain) is adamant there was no warning sign and the metal piece was dark gray. The flight surgeon (not just a doctor but also an airline captain) simply adds more credibility to an already stellar cast of characters. Will Bee is mad at me but gets over it and does just fine on the stand. To a certain extent his testimony is superfluous because he does his analysis based upon the bad pictures – even if these bad signs were up they still couldn’t cure the hazard).
We return after lunch and the court is looking at scheduling issues to see if we can close tomorrow. The plaintiffs will be the next on the stand but wait! I decide to go ahead and put Myrtle on the stand. Myrtle is the director of HR for Holiday Inn who has been designated to sit by defense counsel throughout the trial and smile at the jury. Myrtle smiles way too much.
Judge: Counsel who will you be calling this afternoon?
K3: Your honor we’ll be calling Myrtle and then the plaintiffs.
Will: Your honor I object. Myrtle has no knowledge about this case.
K3: We listed the parties on the joint statement of evidence and she’s Holiday Inn.
Will: Well your honor Ms. Koehler should be required to make an offer of proof as to this witness’s testimony.
K3: I object.
Judge: Ms. Koehler can you give us an outline of the questions you will be asking this witness
K3: Well your honor, I cannot because the moment hasn’t seized me yet
Judge: (suppressing chuckle) She cannot.
Will: Well, I want to know what questions she will be asking
Judge: I suppose they will be something along the lines of who do you work for and what is your job title and we can take it from there.
K3: Nodding
Will: Spluttering. Well I will be objecting if she tries to ask specific questions of this witness because she has no knowledge
Judge: Bailiff bring in the jury
Will: Wait! Your honor may I have two minutes with my client
Judge: Bailiff, wait to bring in the jury.
Two minutes later Smiling Myrtle takes the stand. She smiles and I smile back. She’s determined to smile me down and her smile gets bigger. I’ve never seen such a big smile – absolutely humungous. To the point where she looks comical instead of sincere. Mission accomplished.
Slick as Oil
For every question A asks the defense chiro R, he answers ten. I let him do it a few times so the jury can see the oiliness before I bother objecting. Eventually she asks him to testify on the basis of “reasonable medical probability”. Now in all fairness, when Bud did the direct of our chiro – he used the same standard. But R needs a little slapping. Judge McD (probably wanting to liven things up a bit ) lets me voir dire the witness. R says he can testify as to medical standards, but then admits he has no medical license and technically cannot - so now A can only ask him on the basis of “reasonable chiropractic probability.” I like listening to her tongue twist around that each time.
A is very soft spoken and prone to mumbling. The direct sounds rehearsed and boring as R drones on. I decide we’ll all fall asleep unless I come out swinging in cross.
There’s a game I like to play with pompous experts. I call it “get the expert out of the box.” It’s a take on the scene between Tom Cruise and Jack Nicholson in “A Few Good Men”. Permission for the witness to leave the box your honor. Granted. R doesn’t get to speak and down he comes because – well – because he has to. Dr. R, I’d like you to show the jury the correct way to lift a heavy item from the floor. Let’s pretend this garbage can is 50 or 60 pounds. Objection says A – beyond the scope – overruled. Down he goes to pick up the garbage can – knees nicely bent into a full squat, back straight as he rises, all the while explaining the importance of using your leg muscles and keeping your spine straight. But doctor, if you have a knee condition and have difficulty squatting how do you lift the item. I have to hand it to him, he’s a pro and doesn’t miss a beat though he’s forgotten to address the jury and has me in a beady Nicholsonian eye-lock. R semi-squats, braces his elbows on his thighs (I guess for leverage) and slowly rises with the garbage can. It’s downright silly actually – if I pushed just a little on his shoulder he’d tip right over. Not only does this score with the jury; but surrounded by the captivated audience of His Honor, the court reporter, bailiff, clerk, 12 jurors, 2 alternates, counsel, parties and observers, Dr. R is squatting at my feet.
The Know It All
Our first (and almost only) witness of the day is a preeminent pathologist and expert in the field of asbestosis related diseases. 4 hours of technical testimony seems like an awful lot. But the jury is riveted. Even though it is like listening to a college professor, we can see the jurors lean forward. He doesn’t warn them they will be seeing portions of cadavers and other human specimen. No one winces – they barely blink. It is the CSI effect. They are intrigued and frankly enthralled. Kevin does a lovely job of laying it out so the jurors can really understand our theory. It almost helps that we haven’t tried this type of a case before – we’re engaged and learning along with the jury and we want to know what the jurors want to know.
Of course, there is one person in the courtroom who knows just about everything, and so she decides to remind us of her own vast command of the subject. I’ve been watching her catch up on her emails, but she also takes notes. Kevin asks a question, the doctor answers and the defense lawyer J then stands up and starts asking a question. Kevin looks at me. I look at Kevin. The judge looks at all of us as J is speaking. It is truly bizarre. Especially the question she asks. Now usually if you want to speak during someone else’s direct you need to ask for and receive permission to voir dire the witness. Not only doesn’t she ask permission, her question isn’t even based on a foundational issue. My first thought is I’d like to jump up and slap her down. But she’s Kevin’s witness. My second thought is he should jump up and slap her down. But when I catch his eye, he signals me to stay still so I signal back – yeah, what the heck. Just let her do it. When she’s finished, the witness politely answers her question. Kevin with a kindly air, makes a comment about – sure ask your question we want the jury to hear the truth. And then he takes off and asks two more great followup questions. Later, just to make sure that we didn’t mistake her ownership over our direct as a one time fluke, she starts to repeat the process of interrupting direct again but this time the judge doesn’t let her.
Recently most of the defense lawyers I’ve been in trial against have been great sports to work with. I like this nastier version of defense lawyer much better. There’s a tangible tension in the court room that escalates regularly to the point where we want to pounce. Even though we refrain, I believe jury can sense and appreciate what is going on. I don’t believe it needs to rise to the level of incivility. But we are playing out a story of good versus evil before the jury. And we want them to be rooting for the right side.
The Cheshire Cat
We return after lunch and the court is looking at scheduling issues to see if we can close tomorrow. The plaintiffs will be the next on the stand but wait! I decide to go ahead and put M on the stand. M is the director of HR for Holiday Inn who has been designated to sit by defense counsel throughout the trial and smile at the jury. M smiles way too much.
Judge: Counsel who will you be calling this afternoon.
K3: Your honor we’ll be calling M and then the plaintiffs.
G: Your honor I object. M has no knowledge about this case.
K3: We listed the parties on the joint statement of evidence and she’s Holiday Inn.
G: Well your honor Ms. Koehler should be required to make an offer of proof as to this witness’s testimony
K3: I object
Judge: Ms. Koehler can you give us an outline of the questions you will be asking this witness.
K3: Well your honor, I cannot because the moment hasn’t seized me yet.
Judge: (suppressing chuckle) She cannot.
G: Well, I want to know what questions she will be asking.
Judge: I suppose they will be something along the lines of who do you work for and what is your job title and we can take it from there.
K3: Nodding
G: Spluttering. Well I will be objecting if she tries to ask specific questions of this witness because she has no knowledge.
Judge: Bailiff bring in the jury.
G: Wait! Your honor may I have two minutes with my client
Judge: Bailiff wait to bring in the jury.
Two minutes later Smiling M takes the stand. She smiles and I smile back. She’s determined to smile me down and her smile gets bigger. I’ve never seen such a big smile – absolutely humungous. To the point where she looks comical instead of sincere. Mission accomplished.
Oops, There Goes My Halo
I get into trouble today. There’s only so much of defense lawyer D I can take.
We start the day with the plaintiff father. Have I told you that I represent the most wonderful family? On cross, D spends about ten minutes obsessed with photos – one of the street and one of the dad helping the daughter from bed to wheelchair. He wants to know when they’re taken and by whom. They’re taken by the photographer that I sent – Dave knows it and he wants the jury to know it. He wants them to think the family has big giant dollar signs in their eyes and their first line of business is to take advantage of their daughter’s injury by getting an attorney to sue his poor little old lady client. He steps right over the line and asks Dad something about “posing” for the picture of taking care of his child. He quickly withdraws the missile as if it were an innocent slip of the tongue.
Mean attacks plus attempt to wiggle information in that’s already been barred by motion in limine plus ploys to whip up biases does not a happy Karen make. I’ve been so very good up to now. But my fingers are drumming on the table and, well, when D finally finishes talking and Judge E asks if I have any more questions, I say – Oh No. But the words are most certainly not sweetly spoken.
Now up to here, while D has trounced around, I’ve been darn near angelic. The only thing I’ve done that has not been “nice”, is to tell him no when he asked me to put an exhibit up on the elmo. Yet Judge E wants to have a word with us and tell us that he does not want us “sniping at each other” because the jury is watching. I’m thinking – okay, I say “Oh No” one time and get a talking to. So I figure, well, as long as I’m going to get in trouble I might as well do it with a bit more panache.
The next witness is the plaintiff teenager. I ask D if he has an objection to an exhibit where she is playing ball with her best friend and a cousin from the summer before the incident. He objects. I establish foundation. He still objects. Judge E allows in the exhibit. I put it up on the elmo and ask her what it is a picture of. The jury is wondering – why does Dave keep objecting to these innocuous exhibits. I then say – did you have a lawyer send out a photographer to take this picture?
As we break for the day, Judge E calls us to sidebar. He says how upset he is that after he expressly admonished us to stop quarrelling, I went and asked the question about the photographer (to mock D my words and my intent). I just stand there, head unbowed. D has been misbehaving the whole trial and I slip up 1, okay maybe 2 times and am instantly called out. Judge E then says, well, he’s not saying it hasn’t been reciprocal. I do not respond. I do not apologize. I am not repentant. I don’t have to be a good girl. Judge pleasing isn’t my goal here. And I’m peeved at the double standard.
Afterwards I think – well, I probably shouldn’t have gotten snippy. I should have just stayed within the halo of my calm and serene trial persona. In fact, that’s what several people tell me when I relay the story – I shouldn’t have let D get to me. I should have risen above. But at the end of the day, who’s to say. I felt it needed to be done. It was calculated on my part – I didn’t lose my temper. I just acted out. Every once in a while, I need to throw a punch back. I don’t want the jury to think I won’t stand up to the abuse he’s laying on my clients.
We’re off until next Tuesday. And I’ll make sure my halo is back firmly in place.
The Best Friend
I’ve never gone to a “trial college”. I haven’t used a focus group in years. And I am about ready to shoot myself every time I see another ad about the Reptile Revolution (even though I did read it and like it and love David Ball). And as my client’s best friend walks into the courtroom to testify after the break, literally shaking with fear, I think – there’s no law book that deals with this. We get so caught up in what we think we’re supposed to do and the newest best way to do it. We may transmit all the data correctly, in the right order, in the right manner. But unless we can do so in a real human way, it’s all just a big waste of Klingon effort.
I sit her down and her teeth are basically chattering. I tell her to look into my eyes and I sit absolutely still looking back at her until she begins to breathe. I tell her it doesn’t matter what she says, there is no wrong answer. All that I care about is that the jury sees what a good person she is and what great warmth and love she feels for my client, her best friend. Do I kind of know what she’s going to say – yes because I’ve spent hours with her when she attended mediation and I met with her over the weekend. But if you had been listening to our conversations, you would not have heard me sounding like a lawyer “prepping her for trial.” Did I tell her what the motion in limines were – yes. But otherwise, we talked like random people getting to know each other. As she testifies, I’m positioned so that I’m solely focused on her. I can’t see the jury but I can feel them reaching out to her. She radiates love for her best friend. All of us are touched by her.
The Spinning Instructor
C 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 the 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 C. Plaintiff must have been remarkable indeed.
The defense lawyer does not want to try any cross. So off C goes. As she bounces out the door, so do our bubbles of lighthearted happiness. The remaining 30 minutes are spent with the defense CPA’s video. Mimy and I agree he kind of looks like Bill Clinton minus any of the charisma.
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