Sometimes my job is sickening. I get the whole idea of defense lawyers attacking my clients in order to make sure they are telling the truth. But what I can never get used to are the grotesque tactical maneuvers used by some defense lawyers to save an insurance company a buck.
Here are a few excerpts from an argument I made to the Court opposing defense counsel’s motion to dismiss a father’s claim for the wrongful death of his child. Before reading this: a) put on a white jacket; b) stand up fully; c) employ wonder woman frown; d) thrust out chin; and e) use extra emphasis when using the word: “repulsive.”
Good morning, your Honor. Your Honor, initially when I drafted the response to this motion, I asked for terms. And I took it out because I believe that this motion was the result of a law firm letting an associate just run amok. And I didn’t want to blame her for it. But this is one of the meanest motions I’ve ever seen in a case. It is without foundation…There’s a human element in cases as well as a legal element. And humanity, I believe, should be an undercurrent of our legal system. As well as respect of individuals. And this motion is disrespectful and not based on the law.
And so what the defense is inviting us to do here is to go ahead and discriminate against a couple that is not yet married and put a burden on them that it would place on no married couple to prove paternity because of an alleged rape that they (the defense) has done nothing to discover. I think it is repulsive. In fact, stepchildren and stepparents do have rights under our wrongful death laws. it started with natural, it went to adoption, and it went to step. that was the progression of our law because it reflects the humanity of our culture.
In this case Mr. A was there for all the pregnancy. He supported his wife (Freudian slip) throughout the pregnancy. He was there witnessing the collision. Was there witnessing when an emergency C section was required. Was in the hospital every day of his daughter’s life. And held her at the moment she died. I just find this motion repulsive.
There is no case law saying that you must prove paternity before you can be deemed to be a mother or father. To the contrary, all the case law says you act like a mother, a father, you take on those responsibilities, you love the child, you are the mother or father for the purposes of our laws in this state.
The heart of this motion is attacking the fatherhood of Mr. A. I just can’t get over it.
Photo: a fighter of mean motions via snapchat.
Let me count the ways…
- Answered every question thoughtfully – including if there really was a man in the moon.
- Gave us puzzles and calendars featuring photos of sperm taken with his electron microscope
- Tucked us into bed every night. Then came back to check half an hour later to see if we were really asleep.
- Brought home laboratory bunnies and hamsters for us to love as pets.
- Taught us how to fish
- Investigated the routes of the state department of wildlife fish trucks – so that he could ensure we would catch fish
- Put up with the endless choruses of “how much longer” as we went hiking
- Put up with the endless choruses of “how much longer” when we drove to the mountains
- Put up with the endless of choruses of “how much longer” pretty much all the time we went anywhere
- Would not let us play with toy guns – not even water pistols
- Taught us how to ski
- Showed us how to make beautiful turns on the slope with skis perfectly together, but didn’t mind when we pointed the tips forward and just went down straight
- Taught us how to ice skate
- Showed us how to glide with hands behind back, but mainly picked us up off of the ice rink and set us back upright
- Helped us reach our mobile home in the mountains by putting us on a sled and hauling us up the unplowed road during the winter
- Taught us cell biology shortly after we could sit still long enough to look into a microscope
- Wouldn’t let us have a color television for years – then when we finally got one made us sit at least ten feet back so our ovaries would not be radiated.
- Helped us stock our mad scientist room with test tubes and other devices
- Took us to Malaysia for a year so we could experience life away from the US
- Went butterfly hunting with us most weekends in the jungle outside of Kuala Lumpur
- Burned the leeches off our legs from going through rivers in the quest for butterflies
- Pointed out all wildlife and foliage of any place we ever went – usually enabled by text or field books purchased for such purpose
- Taught us anatomy lessons at the dinner table when dissecting the chicken
- Didn’t get angry when Greg dissected Jenny and Susan’s dolls
- Explained to us exactly how many brain cells would die (never to be regenerated) if we became intoxicated
- In assisting with our loose teeth – secured a piece of dental floss around our tooth, tied the other end to the door knob then shut it quickly
- Shared his love for music with us – so long as it was classical – this included removing the stylus from the record player to ensure we didn’t play hideous pop music
- Took us to the symphony
- Took us to the chamber music group
- Took us to every museum of every city, state or country we ever visited
- Explained the birds and the bees to us anatomically and precisely in no uncertain terms pretty much before we could read
- Made us dinner most nights -eschewing the typical gender roles of the 60s and 70s.
- Took us to every World War II movie ever made
- Took us to Husky football games
- Took us to Husky basketball games
- Showed us how to develop film in his dark room – mainly so we could help with his sperm pictures
- Introduced us to various professors our favorite of whom was Cornelius, an Australian, who came to the beach with us and wore a red G string.
- Packed our entire family into the Town & Country station wagon, drove down to the drive in theater, and had us all watch Jaws the week before we were going to travel to Hawaii
- Made us get in the ocean in Hawaii despite our fear of anything approaching a shadow due to seeing Jaws.
- Restrained himself from falling completely out of his chair when I brought my first boyfriend – a Pilipino wanna be gangster – to dinner
- Found me my first apartment after my one month experiment of living with the first boyfriend failed
- Did his best to try to set me up with various post-doc students thereafter – though to no avail
- Took me with him to the International Swine Semen Symposium in Europe as a graduation gift
- Walked me down the aisle of my wedding
- Stood by me 14 years later during the divorce
- Came to watch me in trial
- Clipped news articles of interest, photo copied and mailed them to us
- Modelled how to be organized, methodological, respectful,industrious and kind
Happy Father’s Day dad – today and every day.
Photo: Dad in his sartorial splendor – including sandals with white socks.
9-10:00 am perform office work with Nala in tow
10:00 – 11:15 teleconference with AAJ committee. Anne takes Nala for a walk and brings her back.
11:15 – 12:30 Meeting with co-counsel and new client who is in full rigid body brace. Nala tries to tip her over.
12:30 – 1:15 Put Nala in car. Head to court but first stop off at Whole Foods Interbay as frig is bare. Pick up fruit.
1:15 – 2:00 Drive. Park. Walk into courthouse. Early. Chit Chat. Go inside courtroom and watch Judge Shaffer make a ruling on another case.
2:00 – 3:00 Status conference with Judge Shaffer and a dozen or so other attorneys on “the case which shall not be named.” Though it can actually be named because Judge Shaffer takes a moment to remind the defense that freedom of speech is okay.
3:00 – 3:30 Debrief with Andrew. Smile with pleasure. Walk back up hill to car. Drive Nala home.
3:30 – 4:00 Alysha has arrived. Put fruit in frig. Run upstairs. Take off lawyer clothes. Put on sweats.
4:00 – 5:30 Drive with Alysha to No Bonz Tiki Bar in Ballard and have favorite vegan meal of eggplant sticks and Caesar salads with blackened tempeh while watching continuous loop of movie Blue Crush.
5:30 – 5:40 Drive home.
5:40 – 6:00 Sit down do a bit more email and let stomach get some rest. Pull on running gear.
6:00 – 7:15 Cruise with Nala through Queen Anne.
7:15 – 8:30 Come back. Shower. Change. Lulu lemon tights. Sleeveless tunic. Short sweater. Northface coat. All black. It’s going to be colder there than here. Pack smallest duffle bag with computer and earphones. No extra clothes. Kiss Alysha goodbye. Nala watches me go.
8:30 – 9:00 Drive to airport
9:00 – 10:30 Do everything to get to airplane and get seated. Take a Nyquil as have had cold since Tuesday. Hoping it will knock me out. It doesn’t. My legs are twitching. Cannot get comfortable.
10:30 pm – 3:15 am which is now 6:15 am Arrive at Dulles airport WA DC.
6:15 – 6:30 Go to restroom which is empty. Brush teeth. Put contacts into red eyes. Add a little mascara and give up on anything else.
6:30 – 7:15 am Take cab to Ritz Carlton for AAJ spring board meeting that starts at 9. Do not check into hotel. Do not go tidy up. Do not change outfit. Locate meeting room. No one is there.
7:15 – 8:15 am Since no one is there yet walk to Whole Foods. Buy and eat package of raspberries, old fashioned donut and drink some water. One of the two other men who are also eating appears to be finished. He is bent over. His face on top of the magazine that is lying on the table. Snoring.
8:15 – 8:30 am Walk back to hotel. Look at Chihully display on wall. Find another bathroom and brush teeth again.
8:30 – 12:40 am Say hi to AAJ staff. Sign in. Sit down. Read agenda. Watch meeting. Semi doze through part of it. Try my best not to. Pretty sure have caught most of the highlights.
12:40 – 1:00 pm Meet with Maria – co-board member from Washington state.
1:00 – 2:00 pm Make way back to airport. Arrive 3 hours early.
2:00 – 3:00 pm Walk up and down the B wing several times. Buy eye cream at Clinique counter (how handy). Consume delicious French fries from Five Guys. Buy a salad (to counteract French fries) for trip home.
3:00 – 4:30 pm Wait. Internet connection is poor. My devices won’t let me use the airport wifi because apparently it isn’t good enough. Call Noelle who is lying on a towel in her backyard sweating in 80 degree weather.
4:45 pm Board p lane. Ticket is rejected. Go to counter. Alaska my love has bumped me to first class.
5:30 – 6:30 pm Plane takes off. Guy next to me is already asleep. Since already napped during the meeting am now wide awake.
6:30 pm – 7:30 pm. Diligent maître d presents meal of gnocchi , salad and roll. The gnocchi looks and tastes like a Styrofoam peanut. Cover it in red sauce. That doesn’t help. The salad could have been good except the suppliers forgot to stock salad dressing. The roll can’t be justified due to too many potatoes. They take away meal. Pull out salad from Potbelly and eat the top of it. Very nice.
7:30 pm which is really 4:30 pm. Realize there are four more hours to go.
Why don’t I stay at least one night in DC. Because Sunday is Mother’s Day.
Photo: Red eye flight to DC.
In its third motion for protective order my least favorite tourism company asks the court yet again to stop the plaintiff from filing motions in the public court file. Instead they want a special rule that requires us to give them five days notice before we can file a document so they can bring a motion asking the court to seal it or block us. Kind of like an early warning anti-missile system. We must tell them before we launch then they try to shoot us down before the paperwork can hit the courthouse file.
To justify this procedure, the defense attacks me yet again. According to them I’m: a) self-serving; b)misrepresenting the facts; c) garnering media attention; d) circumventing an existing court order.
I know I know. You’re probably getting tired of reading about defense lawyers picking on me over and over again in the blog. Trust me so am I.
But this time in its motion the company also attacks the media. They charge: ” The media stories are contaminating the potential jury pool with false narratives.”
This is bothersome. It is an echo of the “fake media” mantra that has been recently taken up around the country.
I believe we all need to stand up for our right to engage in free speech and talk to the media if they are interested enough to ask.
Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech, or of the press, or the right of the people peaceably to assemble, and to petition the Government for a redress of grievances.
U.S. Constitution Amendment I.
Photo: Nala on her 9th birthday.
Attachment: Declaration of Karen Koehler in Support of Free Speech and the Press: Koehler Decl. First Amendment
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.