Judges don’t like it when us attorneys can’t stop bickering. They are irritated by having to deal with our exchanges of snipes, digs and downright insults.
Last month after a trial ended, two jurors followed me down to the courthouse lobby. They wanted to talk about what happened. Both commented on how impressed they were that the attorneys acted in a civil manner. Sure we disagreed with each other and objected and there were tense moments. But we were not overly disrespectful like the lawyers they saw on television. They appreciated that. I thought this was an interesting comment because I could not stand the lead defense attorney. Every time he opened his mouth I could feel my teeth clench.
I’m not saying we shouldn’t fight when we need to. Our job as lawyers is not to make a judge happy. But there is merit to the old proverb that we should pick our battles wisely.
Here are some strategies on how to avoid being drawn into petty fights before judge or jury:
- Learn how to maintain a calm yoga like façade
- Master the art of not rolling eyes
- Bite tongue
- Be physically still – don’t ruffle papers, drum with pen, or slam iPad on table
- Don’t use counsel’s first name
- Slow down when speaking
- Slow down when breathing
- Do not interrupt
- Don’t try to defend everything
- Don’t try to justify everything
- Have faith in the truth
- Wait your turn
- When the other side takes your turn wait for your next turn
- You don’t need to be overly polite
- Don’t be rude
- Be respectful even when wronged
- Carefully limit and pick your fighting moments and then maximize them
- If you hear yourself whining: “but your honor” over and over again – stop it.
- When you lose your temper and start fighting anyway – forgive yourself and move on
Photo: South Lake Union totem
Title: Keep your head to the sky. By Maurice White 1973
A tree branch scratched the lower part of my left upper arm last summer when I capsized a kayak. The wound stung. Swelled into a welt. But didn’t bleed. Almost a year later there is definitely a scar still there. My real skin is getting thinner with age. My mental skin is not.
A few weeks ago we needed to bring a discovery motion against a Seattle tourism company. Andrew had tried to work things out with them but it was a no go. So we drafted a motion. In order to show the judge why this information was so important I had to lay out the other pieces of the puzzle. This exercise the defendant did not like.
In real life (thanks to lessons learned in Kindergarten) if you want to disprove your opponent’s puzzle creation you could engage in various tactics such as: a) show them their pieces are not really fitting together – they are just mashed up pretending to fit together; b) demonstrate how the pieces really should fit; c) show that the missing piece is totally a different shape.
Or you could just throw the puzzle on the ground and challenge the other person to a duel.
The latter is what pretty much happens here. This is the list of the personal accusations and insults charged by this company’s lawyers in throwing my puzzle board to the ground.
- failed to follow the rules
- “mislead” the court
- presented a “false” issue to the Court
- have “sprinkled misrepresentations” throughout their filing
- “blatantly misrepresented”
- used the motion to” circumvent” the court’s previous order regarding dissemination of discovery materials
- used the motion as a “vehicle to publish sensationalized material”
- “injected otherwise unpublishable material discovery materials into the Court record”
- have done this for “sensationalism not legitimate argumentation”
- the argument “is, quite frankly, ridiculous”
- “do not have a legitimate reason” for their request
- “counsel are disingenuous here
Oh bad bad bad bad Karen.
How to respond. Do I get out my sword and run them through. Ah hold that thought. Tempting though that may be…Andrew Garth and I take the higher ground. Stick to our message. And at the end of the day win the motion.
Attached: the winning order. Order Granting Motion to Compel
Photo: Bad Karen by Snapchat
After Thanksgiving, my brother sisters and I decide to sort through the few remaining boxes of mom’s things. The contents of two storage units and a condo have been reduced to a pile of certificates, photos, and little treasures. We are at Greg and Laurie’s craftsman house. Sitting around the living room. Creating our respective piles.
Our favorite is the 10×14 Sears portrait of chubby baby Greg.
In my pile is a report card. From Kindergarten. Says: am a good girl. Follows instructions. Plays well with others. Is reserved and quiet.
Today Lewis Kamb wrote a follow up article to his series called Lawyer v. Lawyer. Kindergarten Karen is not involved in this story.
Photo: My brother, sisters, dad and step mom on Thanksgiving
A few days before Thanksgiving a defendant corporation sends me the report of its expert accountant. This person’s job is to place a value on the life of a two and a half year old child who has died as the result of the negligence of others.
In our state the way we decide the “value” of loss of life under such circumstances is to project what the child would have grown up and earned during her life time. Less what the child would have consumed. The amount that is left over is called “net accumulations” and this cold calculation = value of the life lost.
This time though, the expert isn’t satisfied with that. It isn’t low enough. So he decides to make additional deductions that include the cost of raising and educating the child. After he’s done guess what – the child’s life is worth zero. In fact, in reading another report he’s done with the same strategy – the child’s life is worth less than zero. Under his theory, the Estate is better off with the child dead.
I’ve brought a motion to strike these additional deductions.
Feel free to use it if you encounter this expert or strategy on your client’s cases.
Photo: My god daughter’s 2 and a half year old child enjoying ice cream on a messy hair day. She is not the P. She is alive, loved and well.
I believe that lawyers take too much credit when a trial is won and too much responsibility when a trial is lost.
Of course this is our j.o.b. We are in it to win it. Our client’s well being is our number one top absolute priority. And regardless of the reasons why sometimes we cannot convince the judge or jury of our position – it totally bites when we lose.
That said we can only celebrate the wins or grieve the losses for so long. We have to be resilient. This means not ruminating to the point where we cannot give our other cases our full attention.
For trial lawyer survival reasons – I don’t take time off after even the most grueling of trials. It’s not that I don’t care. I care to the depths of my soul. But I have to tuck the elation or grief away. And move forward to the next battle
Illustration by Jay Flynn.
Though irritated, I did not lose a lot of sleep over John Henry Browne’s filing of a lawsuit against me and my law firm for defamation over our handling of the civil wrongful murder action we filed against his client.
First, I believe in the power and righteousness of the First Amendment.
Second, truth is a complete defense.
Third, I would back our exceptionally fabulous Free Speech attorney Bruce Johnson against JHB any day of the week.
Today King County Superior Judge Jim Rogers agreed and threw out the defamation lawsuit. The case had barely begun. After receiving the complaint we filed an answer. Then Bruce filed a CR 12b6 motion to dismiss for failure to state a claim.
Judge Rogers converted it to a CR 56 motion for summary judgment. Meaning he considered all the facts and evidence as opposed to ruling simply on the merits of the pleading. He then ruled the complaint should be dismissed. The fair reporting privilege applied. Free speech won the day.
Here is Judge Rogers’ Order: order-granting-defendants_-motion-for-dismissal-under-cr-56-11-18-16
Photo: Me and the girls footloose and fancy free in Rome right after JHB sued me.
Prologue: This case involves a third trimester pregnant woman who was a passenger in a car. The car was t-boned by someone else. The mother was injured and the baby died.
- Has any DNA or other test been conducted to establish that X is the father of BABY? If so, Please identify the facility that performed the test, the date the test was conducted and the results of the test:
Answer: This counsel has instructed our mourning client parents not to read nor respond to your insulting, rude, and uncivil question. Unless you have any basis to attack paternity – which would involve our female client engaging in sex outside of the parties’ long standing child producing committed relationship – this question is irrelevant, and propounded for no purpose other than to act indecently in the face of a wrongful death of a baby action.
Request for Production
2. Please produce any DNA or other paternity testing referenced in the above interrogatory.
Answer: See answer and objection to interrogatory 1.
3. Please produce all documents or written materials which you claim evidence X as the father of BABY.
Answer: See answer and objection to interrogatory 1.
4. Please produce any affidavit of paternity executed with regard to BABY.
Photo: Gran puppy Millie Doodette at Noelle’s house – wishing people would just act nice.
4:30 Slide sideways out of bed. Do everything necessary to get out of house.
5:15 Drop Nala off at downtown dog lounge.
5:45 Arrive at SeaTac. Park. Walk. Get thru security. Wait. Board.
7:00 Lift off. Eat lemon luna bar. Pull up P case on ipad. Exhibits have been loaded into Trialpad. Scroll through them. Nod off. Child kicks seat. Get back to work. Eat too many grapes.
10:15 Arrive. Call ride. Walk through terminal. Get in car. Drive to law office for deposition. Park. Arrive. Set up laptop and ipad. Wifi is lame.
11:00 Deposition begins. Defense lawyer is grumpy and snappy. The trial starts this next Tuesday in Skagit county where there is no discovery cut off. I had asked him to do this deposition by skype. But he wanted to “see the expert’s eyeballs.” I’m the one who should be grumpy.
11:10 Stop the deposition. Need a break. Ate too many grapes. Defense doesn’t want me to take a break. Think he’s joking. He’s not. I begin to explain the gastrointestinal details of my situation. He relents just as I’m about to go into the graphic parts. We break. I run back and forth to restroom.
13:15 Finish. Pack up. Drive back to airport. Walk. Get thru security. Pick up salad. Wait. Board.
14:45 Lift off. Eat mediocre salad consisting of mainly spinach leaves. Change brain from the P case to the D case. Work on the computer.
17:30 Arrive. Walk. Drive back. Listen to where I last left off on excellent biography of Maurice White: My Life with Earth Wind & Fire. Rush hour. Pick up Nala from DDL.
18:45 Arrive back home. Take Nala out. Need to start preparing the D case for tomorrow. Am feeling a bit foggy.
19:00 Eat a little protein.
19:15 Look quickly through 125 emails.
19:30 Pull out bag of Boom Chica Pop popcorn. Which costs $3.99 and is hard to justify but sometimes the thought of pulling out the pot is too much. Shake vegan parmesan on top. Highly recommend this – quite delicious. Grab piece of chocolate and iced green tea. Treat for Nala.
19:40 Go downstairs. Watch Season 1 Episode 7 of The Paradise a BBC series.
20:35 Finish. Fog has cleared. Go upstairs. Put away dishes. Take Nala for walk.
20:50 Perform ablutions.
21:15 Pull out computer. First summary judgment – statute of repose and legal causation. Go through all briefing. Condense all legal authorities in argument from 20 pages to 3. Remove all facts as know those.
22:45 Second summary judgment – vicarious parental liability. Go through all briefing. Condense all legal authorities and standards to 4 pages. Remove all facts as know those. Open Westlaw. Read again the Zellmer, Jenkins, Chhuth, Baughn line of cases which support our side. Read again the McAndless line of cases which support their side.
00:45 Go to sleep
6:15 Wake up so can prepare more on the D case. Think about it. Don’t get up.
7:00 Decide am prepared enough. I imbibed what I needed the night before. Can recite cases in head. Now just need to speak it from the heart. Hop out of bed and get going.
7:45 Bring Nala with me since this won’t take too long and cleaners need her out of house. Arrive. Park. Walk across street. Thru tunnel. Thru security. Look in cafeteria for something to eat. There is nothing there except candy bars and old Costco muffins. Leave. Walk up 7 flights of stairs.
8:15 Sit on bench. Wait for client. Take a sip from water thermos. He arrives. Wait for courtroom door to open. Bailiff goes in. Wait. Defense lawyers arrive. They look at my client. I introduce them. They graciously say hi and he even more graciously says hi back. Chit chat.
8:50 Courtroom door opens. We enter. Sit around the tables that are covered with trial exhibits, monitors, and other paraphernalia from an ongoing criminal matter. Fridays there is no trial. Time to argue motions.
9:00 Reporter comes in. She is wearing Kelly green coat and studded pointy toe flats. Tres chic. She’s followed by a camera man. The three defense lawyers stiffen then buzz together shocked. Reporter talks to bailiff. They set up. Tummy starts rumbling. Notice there is a small Honeycrisp apple in purse. Go into hall. Eat four large bites which should hold me. Return. Drop half eaten apple in garbage can under the table.
9:10 Judge Jim Rogers enters. We rise. We sit. Before we begin the lead defense lawyer rises and says he wants to tell my client how sorry he and his client is. He is a father too. A very nicely done apology. But why wasn’t it said when we were all together privately in the hall. Or before court was in session. Or before the camera was going.
9:15 Argument begins on the summary judgment motions.
10:30 Argument concludes. Judge Rogers rules that defendant number two stays in the case and the statute of repose does not apply. Takes the other two issues under advisement. Sign the order re statute of repose.
10:45 Reporter briefly interviews client. Leaves.
11:00 Depart court with client. Back to car. Apologize to Nala. Drive to office. Walk Nala. Remove case D from brain. Put P case back on.
12:00 Meet with witness for P case trial preparation.
13:00 Need to eat something. Look in office closet. Pull out caramel almond Kind bar and a handful of trailmix. Nosh. Drink from thermos. Make several calls. Deal with line up on email. Talk to Jesica. Say hi to various people coming by for visits and to say hi.
13:45 Get in car. Let Nala do her business and drop her at the house. Drive downtown to 1325 4th which is State Bar Association headquarters. Miss parking garage. Circle block again. Park. Walk and elevator up. Remove P case from Brain. Put in Mock Trial for seminar case.
2:20 Arrive. Listen to last speaker. Greet moderators. Take lavalier microphone. Try to figure out where to clip it. Jack pockets are faux. Am wearing a dress. Decide to clip it to boot. Say hi to old friends. Try not to get tangled up in cord which dangles under heel. Tuck cord into boot.
2:45 Greet audience. Say – do you want me to explain opening statement and then do a demo or do you want me to just do it (the demo). They chant – do it. So I do it first.
4:15 Finish. Say goodbye. Remove Mock Trial Case from brain. It is 60 and pretty outside. I could walk down a block and go to Veggie Grill for delicious meal. Or I could take Nala for a run. Drive home barely beating rush hour.
4:45 Arrive. Throw on running gear. Feed Nala who is jumping and wiggling for joy. Go for run.
5:45 Return. Pick up some leaves. Defrost lentil soup that Alysha made for me. Shower. Eat soup. Calls with family.
8:15 Pop popcorn in a pot. Only burn half a dozen kernels. Toss with vegan butter and parma (am addicted). Cut pomegranate in half. Go downstairs with Nala. Watch 4 Weddings and a Funeral.
10:15 Take Nala out. Settle down. Look at calendar to see what is happening tomorrow. Turn Sonos to Brian McKnight Pandora station. A couple hours later call it a day.
Photo: Sitting in the hall of the 7th floor of King County Superior Court.
Here is the backstory of how I ended up on Crimewatch Daily. After defense lawyer John Henry Browne accused me of soliciting the media on behalf of my clients.
EB: We will be sitting down to interview Tracy and I wanted to see if your clients would be interested in speaking with us as well?
K3: My clients have elected to focus on the litigation for now and not do any additional interviews.
EB: Thank you for getting back to me. We have interviewed Tracy and her attorney and always prefer to present both sides. If your clients change their minds and would like a voice in this piece as well, please let me know asap.
K3: The children have declined to participate with further media pending resolution of the case. This included 48 hours who wanted to do an interview. And the last king 5 interview they did not participate in either. I do request that you sit down with me so that I can share their side of the story.
The show aired while the defendant, Browne, and her other lawyer Bob Siderius were sitting across from us in our office. Taking the depositions of our clients.
Photo: still from crimewatchdaily.com
One year ago, Seattle experienced its worst traffic disaster. A converted amphibious military vehicle built for World War II went across the center line of our most notorious bridge into the side of a school bus. Five international students were killed and over 50 more students, tourists, and others were injured. Firefighters who performed the rescue operations still become emotional when thinking about the disaster.
At a time when we should be remembering the families of the dead, encouraging and helping the survivors, a media blitz is being waged by the owner of Ride the Ducks.
Now he is entitled to speak and share his opinion. As a former news entertainer he certainly knows how to give a good interview.
But it is upsetting for the victims I represent that he is doing so.
Last month Mr. Tracey filed an affidavit trying to get me to stop talking and sharing. He accused me of bad mouthing his company. His lawyers did in fact obtain a protective order so that I cannot share what is being discovered in this case. But Judge Shaffer also upheld my first amendment rights. So here is what I have to say.
A defendant who is sorry does not claim that the driver of the bus that was hit by his duck – may also be at fault.
A defendant who is sorry does not try to dismiss a wrongful death claim on an archaic legal technicality because a dead student’s parents live in Korea instead of the US.
A defendant who says they are sorry sorry sorry to a reporter but who has never told a single victim in person, by telephone, by email, or by any act or deed that they are sorry – is not accepting responsibility.
A defendant who is truly sorry steps up. He does whatever he can to make things right immediately. He advances funds to help pay the victims’ funeral and medical expenses. He cares for surviving relatives and helps them travel to be with their dying child. He doesn’t let the financial burden fall upon the public.
He doesn’t use the one year memorial as a public relations opportunity.
Photo: Michelle Esteban’s twitter feed