The movie gift that just keeps giving – is the showdown between Tom Cruise and Jack Nicholson in A Few Good Men. That moment on the witness stand when Jack defiantly declares his magnificence. Gets up to leave. And Tom says – sit back down. And Jack has to. Because he’s in court.
Mr. T, as you may recall , gave a rather similar performance in deposition last month. And then some. Because no judge was present.
I returned to my office. Waited awhile for the transcript. And during one of my afternoon runs with Nala, came up with a plan.
Mr. T is from Oregon though licensed in Washington. I decide to bring a motion to compel that is not your typical motion. Many areas of the law are quite form based. Not so with tort law. Too many variables. It’s fun that we can be creative and not complete paperwork by rote.
The motion asks the Court to put the burden on the defendant insurance company to produce Mr. T for another deposition at their expense and to require the production of his time records and any other missing file records before the lawsuit was brought. This type of motion requires that I show Mr. T’s conduct to have been evasive in the deposition. Here are three short examples :
- Q Why haven’t you done anything to prepare for today?
- LEID: Object to the form. Go ahead.
- A Because I’m a fact witness, and I don’t prepare for depositions when I’m a fact witness. You haven’t asked me to prepare for anything, and I’m not under an obligation to prepare anything.
- Q Okay. So you are just going by your memory?
- A No.
- LEID: Object to the form. Go ahead.
- A So if you ask me a question, I’ll do my best to answer it, if I recall it. If you show me a document, I’ll answer to the best of my ability about what the document is and my involvement in it.
- Q Do you intentionally not prepare when you’re called as a fact witness?
- A I don’t understand your question. I don’t know what you mean by that.
- Q Is there any mention of Mr. V and November 29 in there?
- A Okay, I just read the paragraph. The document speaks for itself. This paragraph is about Mr. R’s effort to secure a recorded statement.
- Q Why didn’t you include Mr. V’s —
- A You’re asking me to remember — You’re asking me to speculate as to why that wasn’t put in there in August of 2011. Is that your question? I have no idea.
- Q All right. And then on December 5, you wrote that Mr. S — You can read it if you want. Why don’t you read it.
- A Here’s what I would generally say: This is an exhibit; it speaks for itself. I don’t have a recollection of this. I’ve never found it effective to ask someone to discuss a document that’s an exhibit, that they’ve said is an accurate exhibit. I think it’s an incredible waste of time. And I don’t really want to sit here for three hours and have you go over documents like this, because you’re wasting time. I’m not going to elaborate on this because I cannot elaborate on it. It was four years ago. The document was produced by my office, okay.
- Q What I find to be an incredible waste of time is for me to come down here and hear that you didn’t even look at your file to prepare for your deposition. And then when I show you a document, you don’t even answer the questions because you find that to be a waste of time. So I think we’re at an impasse as to who is wasting whose time.
- LEID: Objection. Is that a question, Counsel?
- (BY MS. KOEHLER:) Did you not get your own file documents from your own counsel?
- A Go ahead and ask your next question.
- Q Were you given your file documents before today?
- LEID: Object to the form.
- A Go ahead and ask another question.
- Q That is my question.
- A I’m not going to answer that question.
- Q On what basis?
- A I’m just not going to answer it. You’re welcome to call the judge and have her require me to answer it, if you’d like.
And so, that’s exactly what I did by motion. And what the Judge Ordered.
The motion is attached here.CompelTMtn
The order is attached here. CompelTOrdr
Photo: Nala and the reason running helps with thinking things through.
Steve Gursten: I’d like you to consider joining the TAOS group.
K3: What kind of a group is it.
SG: Plaintiff lawyers who have become friends and share advice.
K3: Steve thanks for asking. Honestly, I belong to enough groups.
SG: This is unlike any group you belong to. We are small but geographically diverse. This is a real personal group where we are friends.
K3: That’s really nice of you Steve, but due to my schedule I’m not sure if I have time.
A couple months pass.
Diane Gober: Hi Karen – Steve and I would like to invite you to attend the TAOS meeting in Sonoma this fall.
K3: Hi Diane and Steve – Um…That is so sweet of you. But.. I don’t drink wine.
DG/SG: No problem there is so much else to do there. You will love this group. It is wonderful. We have such great times together.
K3: Can you share the list with me.
DG/SG: Sure here it is.
K3: (Impressed). I know a lot of people on your list. What a great group. I’m not sure about Sonoma. It looks like everyone is a couple, I don’t drink wine or play golf, or spa, and am a vegetarian. Maybe I should wait for the next meeting.
DG: Oh of course you’ll fit in. Not everyone is a couple. You can sightsee and go on hikes. I always order vegetarian options.
This goes on for a few more weeks. DG is optimistically indefatigable.
K3: Okay Diane and Steve – I’m coming and will bring my daughter. Thank you so much for inviting me.
DG/SG: You will have a great time.
Am then bombarded with menus, venues, directions, options, notices of whose attending, and loving emails of friends greeting friends. Diane may be the best party planner I’ve ever known.
A few weeks later:
SG: I found a great way to introduce you to the group. I’d like you to speak with me on blogging.
K3: Don’t want to steal your thunder. This is your time slot to speak. Am content to be the newbie, sit back and watch.
SG: No I insist. This will be fun. As a matter of fact – let’s blog about our talk to Taos on blogging. My blog is MichiganAutoLaw.com (see the Blog section)
And before we know it here we are. On our way to TAOS in Sonoma.
Photo: Cristina and I on a bumpy prop plane bound for Sana Rosa. She’s typing volunteer lists for the SCIAW Greenlake Walk & Roll Oct 19. www.sciaw.org. I’m typing this blog.
“Atticus told me to delete the adjectives and I’d have the facts.” – Chapter 7 of To Kill a Mockingbird
Her right leg was catastrophically smashed, causing excruciating and unrelenting pain. The limb felt like it was being stabbed a million times by a sharp knife. The sharp burning pain became absolutely unbearable to the point where she was forced to take vicodin. She was reluctant to take this narcotic drug, but her overwhelming distress left her no better option. Even so, when she finally managed to choke down the potentially addictive drug, it didn’t help alleviate her suffering. She was unable to get a restful, healing and nurturing sleep, because every time she turned over or made any movement, her severely injured and damaged leg would go into spasms of terrible pain that strongly radiated throughout her fatigued and shaking body. Fortunately, no bones were broken. It took almost six weeks before her badly stretched and tortured ligaments recovered enough for her to begin running again.
We learned the power of adjectives starting in about the second grade. These “describing words” add color to our communication .
In the legal profession, lawyers tend to be very good with language. We enjoy flexing our grammatical skills. Adjectives are high on the list of words that we like to use. So we use a lot of them.
But in our quest to persuade with adjectives, we run the risk of appearing overly melodramatic. The melody and rhythm of what we are saying, is drowned out by disharmony. The audience has difficulty finding its way through our tune. And eventually resorts to ignoring the babble. This process in turn subverts our perceived credibility with both judges and juries.
Here are some thoughts on using adjectives:
- Less is (usually) more
- Save strong ones for moments where emphasis is actually needed
- Don’t use the same one repeatedly within a short time span
- Don’t rely upon them to explain what is going on
- Avoid stringing them together
- Don’t assume they are helping to make your point
- Stop thinking that you can manipulate the audience’s emotions through the use of adjectives
- Practice self restraint in employing them
- Try to hear (from others’ perspectives) what you are saying
- Try to read (from others’ perspectives) what you are writing
- Respect the delicacy involved in using them
- Make sure they have the right tenor
Photo: By Alysha – My melodramatic mother in her pink piggy slippers and slogan shirt.
We are changing the way we read. Short has not just become better. It has become essential in the quest to capture the attention of our audience.
Pedantic legal writing is no longer highly valued by judges. With crushing case loads, our Honors need us to get right to the point. They impose page limits on us. And even then, will sometimes admit they haven’t read our pleadings.
On the other hand, we have legal formalities that must be followed. And certain loaded legal phrases have precedential import and meaning. For example we can’t just say – we are suing X. We need to deal with our state’s community property laws and so say: “X and Y are husband and wife, the acts and omissions of X alleged herein were done for an on behalf of the marital community of…”
One of the most important lessons I learned in high school journalism, was to grab the reader’s attention immediately. Not half way down the article. Not with subtlety. But meaningfully. With oomph.
This lesson applies in litigation. In complaints and motions of any length, I include a preamble or synopsis. This writing device helps to frame the issues. It is reader friendly. And assists with digesting the numbers of details that must follow. If a judge is swamped and cannot read the entire document, knowing they have at least read that first initial preamble gives me some solace.
Here is the synopsis used in a medical negligence complaint. The synopsis is 1 page long. The complaint totals 14 pages.
Hospitals and their staff are in the business of diagnosing and treating emergency medical conditions. This is what they are trained, expected, and paid to do.
27 year-old Heather Spriggs had been in the Grays Harbor Community Hospital before. She was a survivor of childhood lymphoma and had ongoing health issues most likely related to the treatment of the cancer.
Around 5:00 a.m., October 27, 2011, Heather was taken to the ER with a new problem. Her legs were painful, without pulse, and cool to touch. She had difficulty walking. The ER doctor assumed this was related to congestive heart failure and did not call in a specialist to address her leg complaints. The physician’s assistant jumped to the completely wrong conclusion that her complaints were related to neuralgia (nerve irritation) and did not call in a specialist.
Heather was placed in a hospital bed and then left without further medical care until she went into cardiac arrest at 9:30 that night. Not until 8:15 the next morning did a doctor examine her legs at which point he noted they were beginning to turn black. Only then was a vascular specialist called in to see Heather.
By then it was too late. The specialist opined that Heather had suffered a cardio-embolic event involving her legs. Since she was now in acute multi-organ failure, the specialist could not perform an operation to save her legs. She was flown to UW Hospital where her legs were both amputated above the knee.
If Grays Harbor Community Hospital had taken the time and used proper care to diagnose and treat Heather, she would have both legs today. She would not have suffered the devastating consequences associated with the infarctions in her legs and multi-organ failure.
Photo: Photo included in the case synopsis in the complaint.
Complaint: Amended complaint
The dreaded motion has arrived. The defense has moved to prematurely dismiss your client’s case on some legal technicality. Even though you’ve probably seen this coming, your first instinct is to panic. Then you devour the entire motion. Get mad. And attack it point by miniscule point. Smoosh it to smithereens – at least in your own mind.
The defense wants you to be reactive to a motion for summary judgment in just this way. This means you will fight the battle on their turf. You will be defending your case (instead of prosecuting it). You will be focusing the judge on what the other side says is important.
Here are my thoughts on how to respond to an MSJ:
- Let it sit on your desk or inbox until your anger based adrenaline has subsided. This means at least a full day.
- The next day read it quickly to get the essence. Then leave it alone for at least another full day. It needs to percolate.
- The next day read it more thoroughly. Decide if witness declarations will be needed. These should be a top priority.
- Contact the witnesses and secure signed declarations. This is harder than it sounds on all levels.
- Do not make up stuff and stick it in declarations.
- Try to use the witnesses’ own words and tone of voice.
- Don’t just retype expert reports into the form of a declaration. They need to read the MSJ and rebut the bad stuff.
- Review any depositions, interrogatory answers or other documents that have to do with the liability case.
- You should have already taken key depositions to develop evidence to resist an MSJ.
- If you don’t have all the discovery needed, move for continuance under CR 56F. This means you have to list out everything that you expect to be able to secure and prove.
- Make note of the best evidence you have to support your client’s case.
- Read and analyze all of the related laws, statutes, ordinances, standards and case precedent.
- When researching, avoid a Google mentality. One click leading to one answer means you have done it wrong.
- Don’t ever misquote anything
- Re-read the MSJ completely from top to bottom before beginning to draft the response
- Ignore their briefing when setting up the format of your response.
- I was taught to draft a fantastic conclusion that set forth succinctly and persuasively the best reasons the motion should be denied. Draft that section first and instead of putting it at the end put it at the beginning.
- Anchor the case with a broader morality/public policy component.
- Judges shouldn’t have to wait for the end of a 24 page brief before finding out your best argument.
- Give the judge your roadmap on page one.
- Your entire brief should be premised upon that initial position statement.
- Do not restate the other side’s issues and base your response around them.
- Do not set forth issues in technical legalistic jargon.
- Don’t set forth the issues as questions “should the court…” and then answer them “Yes.”
- Frame the issues the way they should be framed.
- Remember you represent the plaintiff – the one who brought this suit and needs to be advancing it
- Set forth the issues affirmatively as statements
- Do not tell the court that they must do something.
- Be respectful to the judge and don’t try to order them around
- Be intelligent but not obnoxiously so. This is a fine line for lawyers. We do like to dazzle.
- Avoid legalese. Jurors aren’t the only ones tired of hereins, thereins, heretos, and thuses.
- Completely re-state the facts. Don’t simply add to or clarify the facts in the MSJ.
- Folklore has it that a case is usually won on its statement of facts. So make them as compelling as you possibly can.
- Support each statement of fact with a reference. Otherwise it is simply considered to be fiction and will be ignored.
- Don’t put the references in the text. Put them in footnotes. This makes for an easier read.
- Put key documents including photos directly into the text. Hyperlink them to working copies if you can. Attach them also as exhibits.
- All the exhibits need to be verified as being true and correct by declaration.
- Don’t waste pages by creating a specific section in the response brief that lists all the exhibits.
- Use your statement of issues as the outline for the argument.
- Lead with your best arguments first.
- Address and demolish the defense arguments somewhere in the brief.
- Don’t pretend that good points raised by the defense don’t exist. They exist. So deal with them.
- Avoid a defensive tone.
- Don’t be petty, derogatory, arrogant, or condescending.
- Save aggressive adjectives and verbs for occasions when they are truly deserved. Then use them elegantly.
- Research every single case cited by the defense. This is where they usually flub up.
- Obey page limits precisely.
- Obey time limits precisely.
- Complete the draft response several days before it is due.
- Then let it sit for a day before having another go at it.
Photo: Anne and John at The Lucky Diner in Belltown where we have our morning staff meetings to discuss things like MSJs.
Bloggers are told one of the best ways to capture audience attention is to use a cool photo.
Yeah. That’ll do it. After all a picture is worth a thousand words.
Here’s how it plays out. You are surfing the internet. Voila. You see a shiny brand new professionally done photo of a big truck driving down the road. That definitely captures your interest so you click on the photo which is part of a blog that is talking about dangerous trucks. And then by clicking on that blog you end up attached to a lawyer’s website. And now you can hire them. Or at least think about hiring them if in the future you get hit by a truck.
Or some variety of that.
Actually, it is amazing how many even good blogs use stock photos. There are blogs devoted to telling you were to find photos. istockphoto, stock.xchng, yotophoto, Flickr, wikipedia, etc to name a few.
Here’s the reality.
Top 10 reasons why generic fake photos suck.
1. They were taken by someone completely unrelated to you. This kinda defeats the purpose of a blog. Which is supposed to be personal.
2. You are passing someone else’s stuff off as your own. Plagerizing is plagerizing even if you pay for the privilege.
3. They don’t have anything to do with what you wrote. Or who you are as a human being. Sometimes you just can’t help yourself. Searching through those reams of free photos. You like one just because. And then try to blog around it.
4. They are distracting. We’re thinking – wow this person really writes well. Why are they using fake photos.
5. This (#4 above) leads us to assume that you really don’t know what you’re talking about. Because otherwise you would have your own photos.
6. They ruin your credibility. Kind of like inviting a new friend into your home, pulling out the photo albums. And…what – no real photos. No problem. I can tell you some fake stories to go along with those fake photos. How about Not.
7. They may be glossy. They may be pretty. They may even be cool. But they are no different than the fake photos inserted in empty picture frames. And we know it.
8. They detract from your brand. Imagine if in order to make a point, Warner Brothers, the producers of Man of Steel, asked Disney for permission to use an image of Johnny Depp’s Tonto wig. Would never happen.
9. They mute the collective richness, depth, and soul of a blog
10. You are what you post. If you post fake, generic photos. Then guess what.
Photo: My next door neighbor’s dog and Nala’s arch enemy, finds a cool seat during all the hedge trimming last weekend.
Wake up at 6. Hear Alysha turn off the alarm and leave to teach her yoga class.
Lean down and grab ipad off floor. Check email. Check weather. Turn on Pandora Anthony Hamilton station. Lie there like a slug for another hour. Leisurely get up and out the door. Nala gets around to doing her business after first lunging for an imaginary squirrel.
Arrive at office. Make a bowl of oatmeal and rinse some blueberries. Eat. Check email. Look at calendar. Turn Pandora station to The Isley Brothers. It is 9:00.
Cut and paste a caption onto a document. Label it: “Trial Brief.” Start into the first paragraph. Divert attention to various other things. Ed comes in to play with Nala.
9:30 meeting with Kessler and Catherine. Finish up at 10:15. That was a long one.
Email comes in from John – is this document ready to go. It is a draft of the joint statement of evidence. Edit it. Then have uh oh moment. This is usually filed with the trial brief. Have sinking feeling. Send emails.
Me: When is the trial brief due.
Me: Oh holy cow.
John: Does that mean I should cancel my dentist appointment at 3.
Me: Cancel it.
Look at calendar. Oh. There it is. At the very top in fine print. It basically says: Everything is Due today!!!!
This is what has to be done. Trial brief, proposed neutral statement of the case, joint statement of evidence, general voir dire questions, jury instructions with citations of authority, proposed verdict form. If you are a lawyer you know what this involves and are thinking – oh holy cow.
Ask Mike in reception to please hold calls.
Give Nala a snack.
Cel rings. It’s Noelle. Payment deadline for the remainder of her study abroad tuition. Figure that all out and pay it on line.
Back to drafting.
John brings in mail. Allstate is objecting to a proposed judgment on our jury verdict from last month. Email co-counsel.
Back to drafting.
Send a thousand emails to John. What’s this. What’s that. How much is this. Whaaaaa.
Oatmeal wears off.
Give Nala more water. Head out to Whole Foods for delicious salad bar. But first, make detour. Her nails need to be filed down at Petco which is next door. Pick up salad and Nala. Rush back to office.
Eat while drafting.
Manage not to choke.
Note to self – vegan chocolate cookie is actually delicious. How did they do that.
Finish meal while typing.
Music is too sedate. Need more frenzy. Turn it to…Prince!
Send more emails. Ignore more phone calls. Sorry – I’ll get back to you tomorrow.
Finish one document after the other.
Email John: okay time to format.
John comes back in a flash. Wow he’s quick. A bit too quick. Razor eyes of his boss find bad things. He runs back upstairs to fix them. It is 3:02. If this had been a normal day, he would be just sitting down into his dentist’s chair. Instead, is being drilled by…me.
Whelan comes in for a quick chat. Pats Nala. Leaves.
Back to editing the trial brief.
Sheila E. thumps her drums and belts out: “She wants to lead the glamorous life.”
I bounce up and down on the ball. Nala raises her head to see what’s going on. Since food is not involved she loses interest.
John rushes back with the rest of the fixed documents.
Hand him back the piles. It is 3:27.
Am smug. We are finished and will be able to efile an entire hour before the clerk’s office closes for the day.
John says: it is going to be close, as he backs out the door.
Me: Isn’t it closed at 4:30.
John: Yes, but we have to get this to Snohomish County. [An hour away]
Me: Don’t they have efile.
John: No, the messenger will be here in five minutes. If I can get this copied and done in the next five minutes they can get down there.
He sprints away.
And so I write this blog. While Cameo chants:
Word up everybody say
When you hear the call, you’ve got to get it underway
Word up, it’s the code word
No matter where yo usay it, you’ll know that you’ll be heard now.
Photo: Nala getting her nails done.
We used to write hundreds of boring (sounding) letters in a case. Now we write hundreds of boring (sounding) emails and the occasional letter.
There is no court rule that says we need to be boring (sounding) when we communicate with opposing counsel.
The first draft of this sample letter was written by my highly competent paralegal John. It simply said: Enclosed for your consideration are sample jury verdicts for similar cases.
Here is the less boring and more fun version:
Before our settlement discussions went kaput, you mentioned that a defense offer would likely be roughly in the $45,000 to 60,000 range. My highly polite response was something along the lines of: balderdash. However, to engage in further due diligence, we undertook a jury verdict/settlement search of cases where a young male died without dependents. Here are the results.
Once this case gets back on track and we eventually comply with the court’s order to mediate, you may want to keep these figures in mind – even though they remain on the low side.
Please consider this communication to be governed by ER 408.
Very truly yours,