In consideration for the privacy of those involved we have changed the names of the below mentioned.
Andrew S and Todd B split their time. Todd doesn’t even need to use all of his 10 minutes. They’re searching for the one or two jurors who may actually favor the plaintiff.
Second round is time for burden of proof. The jurors want a higher standard. Especially dealing with something like money damages. I mention pain and suffering and several people’s mouths visibly purse. You know what that looks like – grim, puckered, small little mouths, burrowing into their chins. The hands are going up. It isn’t right. They don’t agree. I’m smelling challenges for cause. Judge H intervenes.
When I was a little girl, my father would hold my hands. I would then place my little feet on top of his. He would dance around the house. My feet would try to maintain their perch until eventually, giggling, I’d slide off. Here in the courtroom Judge H is determined to do the voir dire dance with me. Except his feet are planted on mine and no matter how hard I try, I cannot bounce him off.
Judge H gives an example about “is Elvis dead” to explain the difference between reasonable doubt and more probable than not. I can’t quite follow it. I thank him and continue the discussion until he tells me time is over. Ultimately he does grant cause challenges on four jurors. But it should have been eight.
Which brings me back to my troubled thoughts.
Why do we want to know all the bad things jurors think. They are growing more skeptical every year. They feel more sorry for the defendant than the plaintiff. At least in non-catastrophic injury cases. They look empowered as they voice a strong, negative anti-plaintiff mantra. And as I nod and thank them for being so brutally honest, I wonder. Are we doing this right? This made sense when we were trying to flush out people who were biased. But now that most people are biased – what good does this do.
And thus, this first day trial diary ends. The thoughts have been written down and stored away in the archives. So I can turn the page. Because tomorrow is a brand new day.
Judge H spends 20 minutes with introductory jury instructions. He does a good job. Not just reading the forms, but using a few real life examples. The jury appreciates this. As he speaks, I alternate between looking at the jurors and looking down at a focal point. This is how I rehearse what I’m going to say. I don’t. I am the sand on an ocean beach. My goal is to just sit there unflinching as the water (case) comes washing over me. Back it goes into the ocean. I breathe. It comes again, enveloping me with whirls and swirls that I don’t try to analyze. Then back it goes. I breathe. Over and over again.
Judge H announces me. I get up and walk to the center of the floor. It feels like there is a spotlight following my path. I’m conscious of each step I take until I stop. And then, the opening statement takes over. It has its own life. Its own ebb and flow. The words, the gestures, everything that springs from me seems as though it is not of me.
After the same lunch of bagel with cheese in the library (don’t tell on me), it’s time for our expert. I believe in preparation. I really do. Sometimes you’d be surprised at how much I will prepare for a particular witness. But in this case, with our key expert, the only thing I’m planning – is to let him shine. I know he knows his stuff. I know what his report says (cause I read it while munching on my bagel). My job is to make sure he has a platform to best express himself. And to make sure he does so in a way that will assuage a jaded juror.
The expert is wonderful. The jurors are completely engaged. I just can’t tell if it is a good engaged or bad engaged. It prods me to ask numerous provocative defense-style questions. If I was using an outline or notes, I would not be able to focus so completely on the jurors and the witness.
My dog Nala has an incredible startle reflex. Any movement by anything and she will jerk her whole body to attention until the next movement and she will jerk her body to attention. Repeat. I can’t stand walking with her when it is windy outside. She startles, jerks and waits to pounce on anything that rustles. Just totally wired.
Well, that is what is going on inside of me during the direct exam. I’m waiting for the lift of an eyebrow, the twitch of a lip, the narrowing of nostrils. Any sign at all from the jurors. Everything I sense impacts how I ask the next question.
We take afternoon recess. The expert says: I like the way you ask questions. You have such a calm way about you. Uh Yeah.
Trial day 7
Steve finishes up with a rebuttal witness. Another ex boyfriend who does a pretty good job. It is 2:30. Time to go over instructions and a few motions. I’ve gotten an email.
My mom is in the hospital. I won’t violate HIPAA but I can say this. If your mother is 77 and Chinese and won’t do anything unless she first consults with a pendulum (in this case a polished rock on a silver chain). And if she won’t take western medicine and relies upon supplements that come in a green box and are written in Chinese. And she can’t read Chinese. Then you know what my family is dealing with.
I excuse myself to go visit her and leave Steve to deal with everything which he does admirably.
Drive to the hospital. Two of my daughters, my daughter’s boyfriend, my sister and brother are there. My mom is feeling better. I make a little video of her so my third daughter who is at Gonzaga U and my sister who lives in LA can see that she is fine. We are talking about this and that in between trying to reason with her. She says – how’s trial going. I say fine. She says – are you winging it. I say – what. She says – well, you came into the case just before trial – so are you winging it. I respond with something about being a quick study and that my style is to engage. She looks at me and says – yeah, you’re winging it.
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.
There are a lot of lawyers in the court. I’m seated at the apex of the right angle of counsel tables. To my immediate right is the doctor defendant, then TW, GH their jury consultant whom I look up thanks to wireless. The farthest from me, nearest to the court is RR. To my left is our side (Paul Whelan, Kevin Coluccio, Paul’s paralegals Kristin and Cheryl, and our client’s father).
TW has nails that extend an inch beyond her fingers and are filed almost to a point. They are painted blood red. I am fascinated by them. They remind me of the wicked old Chinese emperors who probably enslaved my forbearers. They click quietly as she gracefully fiddles with her pen and flips through pages. I am impressed with her adeptness. I look down at mine. One is chipped from gardening yesterday. They are all cut to different lengths by my 99 cent drug store nail clipper. I don’t think I’ve filed my nails in – well, that is too much information for sure. But you get the picture. I am definitely way behind TW. Did I mention that her hair is beautifully groomed, died henna red as well. Yep you guessed it. Mine is tied back with a pony tail holder from same drug store. Now lest you think I am a total slouch, RR comments on my lovely new high heel pumps and the color of my legs (okay sounds weird but I run outside and it has been sunny lately). She is wearing what look like tap shoes with stockings. I hate stockings. Yes, this is how we get ready to do battle – we engage in feminine small talk while we sharpen our blades.
ML puts on B’s teacher who had her from 1st to 8th grade. I feel at first that the jurors are looking at her clinically. But she’s a great witness and has story after story to tell and after awhile, they are looking a bit less stern. ML does a nasty cross. It is all about insinuation. He doesn’t come out and say it. But the implications are obvious. B was in drama so she knows how to act. B had classmates helping her out and that was a way that she could get attention. My irritation at ML is growing. I actually would like to pick up my computer and fling it at him. I catch myself clenching my jaw. Stop. Must put on mask of calm yoga like serenity and smile. Do the jurors buy ML’s cynicism. Maybe they do. But I cannot dwell on that thought. If they go for the ugliness, then B, her parents, and we as a society lose. Can’t start going down the tunnel of dark thoughts. Pull self back up. After all am wearing the white jacket.
Trial Diary "Are you an attorney?"
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"
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.
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"
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"
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"
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"
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"
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"
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.
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.
Trial Diary "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.
Trial Diary "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.
Trial Diary "Oops, There Goes My Halo"
Trial Day 2
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.
Trial Diary "The Best Friend"
Trial Day 2
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.
Trial Diary "The Spinning Instructor"
Trial Day 6
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.
Trial Diary "Meanie"
Trial Day 3
D does not want to behave. One of the first things he does, is ask me where an exhibit is that he wants to show. Not my job D. I’ve progressed into the ignore mode now. I still let him use my machine, even though officially he’s never asked.
I’ve been in trials where I get along famously with defense counsel. At times, a little too famously. The trial flows nicely without the roadblocks and aggravations caused by obstreperous defenders. Yet at the same time, I’ve thought to myself – the jury is here to see conflict and engage in resolution. They may not want us to be uncivil or rude, but they want to feel the tension that comes with conflict. It is after all: good v. bad. So even though I am a bit whiney about D and his antics. Even though I would like to slap him from time to time, I am also quite pleased with his level of boorishness. In fact, I wish he would be even more obnoxious. The jury is awake and entertained. I have faith they are rooting for the right side.
Today does not go as quickly as I wish. 2 video deps of ortho surgeons and 2 live witnesses. The first witness is the 18 year old best friend of plaintiff. She was with her when they were both run down in the crosswalk. She does a wonderful job on direct. She is appealing in her loveliness, youth, and unaffected manner. D engages in a hard prosecutorial style cross exam. It is so sharp and attacking that I feel myself wincing. Does he score points? I suppose a few (she was on a cel phone). Can I see how jurors would buy into what he does? Perhaps the jaded ones and of course that is why he does this – he hopes there are cynical people on this jury. But here, with a soft sweet witness who was 14 years old when she was run down in a crosswalk – I just think it’s foul.
The other witness is the plaintiff’s cousin. After hearing her speak, I think everyone wants her as their cousin. Following the incident, she moved into the house and cared for the girls along with the rest of this very close family. On my scale of caregiver lay witness testimony she is a hands down 10. If I was defending the case I would have wanted her off the stand as quickly as possible. I would have passed on cross. But not D. D believes that through his mastery, he can convert even Mother Teresa into the devil’s spawn. To this absolute paragon of loving darling woman, he starts off with this bomb: Wouldn’t you agree that Plaintiff was “happy” when her best friend was released from the hospital and was able to come join her in the basement room (where they would spend the next month or more bedridden). That way the plaintiff didn’t have to recover by herself – she had company. The witness, whose second language is English, thinks she must have heard incorrectly. Excuse me – I’m not sure I understand. He repeats the same question another time and another time after that because she really cannot comprehend what he is asking. Finally she gets it and responds perfectly of course, that though the girls love one another they were not happy in their circumstances. So not only was it a dud of a bomb, it punches him back in the face. Which is great because now I don’t have to.
Trial Diary "Hair gel"
Trial Day 7
PB is a DO, orthopedic surgeon. He makes a grand entrance. He’s wearing a dark pinstripe (very expensive) suit with a glorious bright red tie. As he bends over struggling to lift a foot and a half of records, and a hip model, his hair flops forward in a big clump over his forehead because he uses a too much hair gel. I think all expert male witnesses should be warned about wearing hair gel. What may look fine in the sanctity of one’s own bathroom mirror, looks quite different under the fluorescent lights of a courtroom. As he strides towards the stand, he doesn’t look like a doctor, he looks like … hmmm… a slick lawyer! Oh what a production he makes out of his pile, which by the way he never once refers to. His role is to create confusion on the hip problem. He does a decent job of it. We fix this because in his report, he has agreed that regardless of whatever is causing the “bizarre” hip symptoms, everything is related to the original injury. His hourly charge of $800 and his half a million earned per year doing “consulting” 30-40% of his work time, doesn’t endear him to the jury. But he hasn’t been a really bad boy so at the end I let him save face. He has only shown the jury one area of arthritis in the x-rays. This lets me know that he hasn’t seen all the records. I ask this question and he confirms he hasn’t seen the most recent films. I ask him if his opinion is only as good as the records he has been given and he says yes. Three down.
Trail Dairy "The alternates"
Trail day 8
Judge G turns to the jury. There are 14. A jury of 12 plus 2 in case someone became ill or could not keep attending. Not one has dropped out since we started. The 2 alternates are going to be excused. No one knows who they are. The clerk is going to pick two random numbers. I used to think this was the best and most fair way to deal with alternates. The theory is if they know in advance, maybe they won’t be as vested. I reconsider this after today. At least they will be prepared. The first number is called and it is juror 1. I watch it hit her, her face begins to crumple as the clerk reads the next number and it is juror 12. He is the 37 year old engineer, the youngest member of the jury. He is rattled and says, can you repeat that. As the clerk repeats it, juror number 1 is openly crying. Her shoulders are shaking and tears are running down her face as the juror next to her reaches his arm around to comfort her. For ten bucks each a day 14 people devoted two weeks of their lives to this trial. In doing so, they did more than serve their public duty. They embraced the process on a deep, fundamental and emotional level.
Trial Day 2
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. I both love and fear jury questions. On the one side they let me see what the jury is interested in, on the other I read an awful lot into each question.
Today is the first day of testimony and we get seven witnesses on and off the stand. My goal is to put on our entire liability case (except plaintiff’s part) in one day of what will be a two and a half week trial. Otherwise, we buy into the diversion strategy of the defense and undermine the damages case. The first witness is the ambulance driver….Next is a claims adjuster hired by the city to investigate the claim. In retrospect I shouldn’t have called her. The court won’t allow me to discuss the fact that it was five months before the city paid the property damage claim due to prior in limine, so she makes it seem like we are the ones being unreasonable because we wouldn’t provide medical records and told her to eventually get lost. I kick myself for calling her. Kick. Kick. Kick.
Finally we end with Dick Chapman, accident reconstructionist. He testifies regarding physical evidence at the scene. I do not have him do an official reconstruction, but he does a filament analysis on the fragments left and concludes the left turn light was on and the brake lights were onat moment of impact. This is critical evidence. He does great in direct, is strong on cross and then three jury questions come. There is one good one – what was the percentage that the brake light was on – answer 100% but the other two are yucky. One asks if the car had been secured before he got to it (no); the other asks if the physical evidence alone could have also been explained by the possibility of plaintiff suddenly pulling onto the highway from a roadway (as opposed to being stopped and turning onto that roadway). He says it’s a possibility which is deflating. Defense counsel makes further hay of that. Only after I ask how that would be consistent with the brake light being on at point of impact is he able to recollect himself and say that he’d forgotten about that and it was unlikely the “possible” scenario occurred; that more probably than not plaintiff was rear ended just as she claimed. The good thing is at least he gets it right; the bad thing is that a juror is even thinking plaintiff caused the collision.
Which brings me back to my thought of the day – it is so extremely difficult to see our cases clearly when we are in the midst of trial. Regardless of how closely or critically we’ve looked at the case or even brought in focus groups, we must constantly be able to “feel” the aura of a courtroom to know where to go and in what manner. Otherwise we risk over or under selling of our client’s case. I tend to embrace the scarier perspective (the jury is cynical) as I believe it is always better at least in car crash cases which don’t involve “gross negligence” type of scenarios, to err on the side of being more conservative.
Trial Day 4
Today I start off by warning the judge I might suddenly have to leave the courtroom to vomit (was sick the night before). Fortunately that prophesy doesn’t come true. You know that feeling of queasiness – up and down; am I or aren’t I; everything’s going to be fine, maybe not. It’s somewhat analogous to what we mentally go thru during trial.
The sixth witness of the day is James Watson, cardiologist. Steve has rigged up a red water balloon hung by fishing wire inside the skeleton. The doctor flips it back and forth, explaining how trauma can cause first degree heart block. I ask him to show one more time where the heart would be in relation to the fractured T2 and T3 vertebrae. He’s banging it around and boink. Off it flies. I can see the doctor flinch, waiting for that splat of water as it hits the carpet. But never fear, Steve double ballooned it.
My thought for the day is how differently we must approach cases depending upon the judge. It’s like in basketball when stickler refs call every foul or violation and keep a truly tight reign on the players. Then there are those who pretty much let the players go at it. Judge Spearman is letting us go at it, we are obliging.
Trial Day 7
Early on I told me client she could bring an emotional distress claim but at risk of having prior garbage interjected. The head injury claims as well would need to be abandoned since they are emotional/cognitive. This is something we are always weighing as counsel – can we, should we. In this case, we decided for better or worse it is coming in. And we will not apologize for the past.
The treating psychologist has a specialty in anxiety, post traumatic stress disorder and aftermath of trauma. She does a good job on direct and we bring up globally, the pre-existing stuff. I ask her how the patient can function normally if there is all this turmoil - she explains. Why isn’t Gina able to function post crash - she describes it as like being a computer that gets overloaded until eventually it just explodes. Here, the car crash caused the explosion. Defense counsel does the best cross of the trial. He has blow ups of every single domestic violence arrest/incident dating back to the 1980s (remember I lost this motion in limine). He reads them and parades them and gets the psychologist to agree any person going through this and not seeking help has some kind of mental problem. He reads about G’s anger against the doctors, the city, everyone. He tries to portray plaintiff as irrational, a victim mentality person, someone who lies to make herself look good to others, who is so obsessed with litigation that she spends all her time thinking about it – and he does this all extremely effectively for an hour. My job is not to appear rattled at all. Redirect. What do you do when your client’s really awful and recent past has been paraded in front of a jury. Hmmm. We are not going to minimize or apologize for it. So I decide not to act defensively and instead attack the city…
A juror asks two questions one of which is whether domestic violence can lead to PTSD. This is not encouraging.
Plaintiff is called to the stand and I go right to where I know the jury wants us to be. I tell her we’ve just heard from her psychologist and the City says that she’s lying to promote a lawsuit - are you lying. And then I go off. My goal is to take the focus off my client and the awful picture just presented by the defense, and to turn their attention to me (let them transfer any negativity toward me) and the true issues at bar. And so I let myself go and become drama queen. Did you lie about your vertebrae being fractured. No. Did you lie about suffering first degree heart block. No. Did you lie about (and I go through every single diagnosis), and then ask did you lie about buying bacon and eggs that morning and being sidetracked by a flat of pansies at Albertson’s. No. Did you lie about driving home in your car and go through the liability story). And by the time I’m done with the “did you lie abouts” my client is crumpled in tears. How does it feel that the city says you are a liar and that they are not responsible – I feel worthless. We talk a bit more, I say – we could talk here for the next two days, but we aren’t going to do that. What do you want from this jury. She says (I guess I should have rehearsed this), I don’t know, help with my medical bills, an apology. I finish for her – wage loss, other things my attorney will help me with.
Cross begins after lunch and lasts over two hours. Plaintiff gets thru ten minutes before she breaks down in tears and we need to recess. She pretty much cries through the rest of her testimony. I can’t bear to watch. I spend most of the time trying not to cry. I can’t watch the jury because I need to look away so they don’t see me. Defense counsel spends half an hour on her old back labor and industries injury – why is still a mystery. She handles herself well. He spends an hour on her prior employment. Again, he doesn’t score points. Smart man, he resists the urge and doesn’t pummel her about the domestic abuse, instead he starts to attack her attorney. She hired counsel two weeks after the collision. Counsel is the problem. You don’t know what the city did, just what your attorney told you. When he’s done attacking what he can via counsel, then he attacks her boyfriend now husband – he said at the scene he was going to sue. I do have her deal with a few details on redirect, just because of things being taken out of context. But I need that last good question and it’s the perfect time for it – how’s your life different now than it was before. She nails it just right. But it has been a completely exhausting, emotional, difficult, awful day.
There are four juror questions. The judge asks the first two but not the rest: 1) When you did rock collecting (in the past) did you dig them and pick them up?; 2) How and when did you decide to sue the city of Redmond?; 3) How have you dealt with money issues over the past 3 years, how much is the debt? Not asked; 4) Why have you chosen to stay in a domestic violence situation for so long? Not asked.
Interpreting jury questions is like trying to interpret dreams.