Drop Dead Diva
On The Good Wife or Drop Dead Diva, the attorneys get the cases in the morning. Try them in the afternoon.
In the real world the case is filed and then has to wait a year and a half for a trial date.
If it survives for that long, there is a fifty-fifty chance the defense will ask the judge for (and get) a continuance. Delay is a friend of the defense: Deny. Defend. Delay.
So now the case has been waiting for a couple years. The judge says – no more continuances.
As the trial date approaches, the office starts buzzing. Call all witnesses. Coordinate schedules. Make sure everything will fit together as perfectly as possible. Because judges don’t like even ten minutes of down time.
Just a few days away and we get the call from the bailiff. Sorry. Judge has a conflict. Your case is getting brokered. You are on standby.
Frustrated. But not surprised.
Office buzzes again. Calls all witnesses. They are unhappy. Some will now be unable to attend. They had already scheduled time off with their bosses. Or they had travel plans. Or they are doctors and have 50 patients booked solid every day.
The witnesses all want to know what the next date will be. We can’t tell them. The court hasn’t told us yet.
We wait until we get the call. Case will start just one day late. Just. This still plays havoc with everyone’s schedules.
The defense lawyer says they won’t agree to one day late. Their witness isn’t available. They bring a motion to continue the case again.
Deal is worked out. Case is continued for a month.
All the witnesses are notified. All the schedules are reworked. Plans made.
And we all cross our fingers and hope that this time it will actually go out on time.
Photo: John, Anne and I making the best of the trial date continuance by eating lunch at the space needle.
Shellie: I’m addicted to Drop Dead Diva. You were right.
K3: I know – isn’t it entertaining.
Shellie: Who would have thought.
K3: It is such a ludicrous concept, but executed so brilliantly.
Shellie: I love how she flicks her hair over her shoulder when she scores a point.
K3: You get the case in the morning and try it in the afternoon.
Shellie: So entertaining.
K3: I love how it just takes a few sentences to shred a witness in cross exam. In fact, she has inspired me to change the way I do cross. Instead of pecking at the expert, now I get right to it. While being completely sweet and charming at the same time of course.
Am co-counseling on an asbestos case handling damages. The defense is presenting its economic expert. Typically not a real jazzy point in trial. Am listening to the attorney qualify the witness. Have never encountered this witness before. Know pretty much nothing about him. Here is the beginning of direct. I’ve highlighted the words that catch my attention:
16 DIRECT EXAMINATION
17 BY MR. WOOD:
18 Q. Good afternoon.
19 A. Good afternoon.
20 Q. State your name and address.
21 A. Mark Newton. And my address here in Seattle
22 is 1601 Fifth Avenue, Seattle 98101.
23 Q. And why are you here?
24 A. I’m here to testify regarding the economic
25 damages of the plaintiffs in this case.
1 Q. Could you give me a brief summary of your
2 educational background?
3 A. Well, I went to college for one quarter at UC
4 Santa Barbara back in 1970. And then I transferred to
5 UCLA later that year. And then graduated with a
6 degree in economics in 1974. And that’s basically it.
7 So I have a degree in economics.
8 In terms of education after that, I did
9 that to take some additional accounting courses after
10 graduating to qualify to sit at the CPA exam.
11 Q. Okay. And you are presently licensed as a
12 CPA in the state of Washington, is that correct?
13 A. Yes.
14 Q. Okay. Why don’t you give me a brief overview
15 of your professional background?
16 A. Sure. Yeah. Well, I have worked for this
17 company HSNO. I began in that — in those initial —
18 it wasn’t that when I started. It was accounting
19 under the name of the founder of the firm back then.
20 Anyway so I have worked technically for the same
21 company since 1974. Since I graduated from UCLA. And
22 so generally my work has been in forensic accounting
23 and economics. And I became a CPA.
24 I do a lot of work in cases like this,
25 where we are talking about economic damage on what I
1 would call personal economic cases. I personally do
2 wrongful death. We also do a significant amount of
3 work and other commercial types of disputes in courts.
4 So contract disputes. Other damages. Unfair business
5 practices, wherever we are evaluating the effects of
6 business from some alleged action. And in terms —
7 basically in terms of property damage. And then I
8 also do quite a large cases involving (inaudible)
9 cases, where somebody is concerned that someone who is
10 managing a business, for instance, may have been
11 misusing the assets of the business. So we get
12 involved in tracing that kind of work.
13 And then the last category, generally
14 speaking is we do a lot of work on insurance claims.
15 So these would be fires, floods, hurricanes, things of
16 that nature. And we help determine how much —
17 usually, usually business interruption type lawsuits
18 would be paid under an insurance policy.
19 Q. And you may have said this and I missed it,
20 but what does HSNO stand for?
21 A. Well, Hagen, Streiff, Newton & Oshiro.
22 Q. And that’s the name of the company you are
23 working at?
24 A. Yes.
25 Q. And have you ever taught any courses?
1 A. Well, I have taught — in essence, yes. I
2 have taught a lot of classes over the years, usually
3 in the context of seminars at conferences. So usually
4 professional organizations. And I address certain
5 topics in those cases, yes.
6 Q. And I think you mentioned you have been
7 qualified to testify as an expert in courts of law
8 before, is that correct?
9 A. Yes, I have.
10 Q. Which courts?
11 A. Well, primarily — actually this was the
12 first chance I have had to testify in the state of
13 Washington. But I testified very often in California.
14 I started off my career in California and I have been
15 here for about 9 years. And just hadn’t had this
16 opportunity for that time. But I testified at scores
17 of times in California. Testified in federal court
18 cases in Nevada, Ohio. Where else have I testified
19 at? I have testified before the International Trade
20 Commissioner in the late ’80s. I even testified in a
21 case in Seoul, Korea.
22 Q. And you have been retained on occasion for —
23 as an expert for plaintiffs in personal injury
24 lawsuits, is that true?
25 A. Yes.
1 Q. But when it comes to asbestos lawsuits have
2 you been retained by plaintiff/defendants?
3 A. Always on the defense on asbestos cases we
4 have just — over the years it’s evolved where we work
5 for only the defendants.
6 Q. What’s the hourly rate you charge for your
8 A. For my testimony it’s $450 per hour.
9 Q. Okay. And could I ask you that when you give
10 your opinions for me here today, that you do so with a
11 reasonable degree of scientific certainty?
12 A. Yes.
13 Q. And you agree that you will give me opinions
14 that are more likely than not true?
15 A. Yes.
The expert is very professional looking. Wearing a gorgeous tailored suit that puts mine to shame. He is poised, confident and pleased with how fluidly the well scripted direct is going.
Skip now past 20 more pages of testimony and the laying down of his opinions.
Time for a Drop Dead Diva moment. I summon the persona of Drop Dead Diva and approach the witness. Let’s begin by breaking all cross examination rules and leading off with an open ended question.
13 CROSS EXAMINATION
14 BY MS. KOEHLER:
15 Q. Can you — sorry, can you tell me your degree
16 in economics, what was your degree?
17 A. It’s a Bachelor of Arts degree in economics.
18 Q. So when counsel asked you to testify within a
19 degree of scientific certainty, you are not capable of
20 doing that, are you?
21 A. Well —
22 Q. You are not a scientist?
23 A. Well, I wouldn’t call myself a scientist, but
24 I would call myself a forensic economist.
25 Q. So let me repeat my question. Counsel asked
1 you if all your opinions were based upon a scientific
2 certainty, and you are unable to testify to that
3 level, am I correct?
4 A. I don’t recall if that was the exact question
5 I was asked or not. But I think in terms of what,
6 what I —
7 Q. I just asked you a very specific question.
8 A. Okay. I don’t recall if that was the exact
9 question and answer.
10 Q. Assume that that was the exact question that
11 was asked to you. Did you tell this jury that all
12 your opinions are made within a — a degree of
13 scientific certainty? Assume that question was made
14 to you and you said yes. Is that an incorrect
15 statement of your capacity to give an opinion to this
17 A. If under your hypothetical that was the
18 question asked and that was the way I answered it,
19 yes. I don’t think I could answer with certainty on
20 what more or less probable. And I thought that was my
21 answer, but I apologize (inaudible).
Turn, sashay off and flick my hair over my shoulder…before resuming the rest of cross which includes of course a few more reminders of how well he was stabbed right out of the gate.
17 Q. And is that what you are saying to this jury
18 is that the lost wages and lost earning potential are
19 the same?
20 A. In this case, yes.
21 Q. Okay. Well, that’s an assumption that you
22 are making.
23 A. I don’t believe it’s an assumption. It’s a
24 conclusion that is my opinion that that would be the
25 case in this case.
1 Q. And your opinion is on the basis of what
2 a — to what — what is the basis of your opinion?
3 What is the — what is the expertise of your opinion
4 so that we know what to call it? Do you agree that
5 it’s not to a scientific level. What it is? [Eyes wide and shrug shoulders to the jury]
6 MR. WOOD: Objection, vague.
7 A. Well —
8 THE COURT: Well, if you understand it,
9 you can answer it.
10 A. Yes. I think the — when you threw in the
11 scientific reference to the scientific method, I’m not
12 sure what you mean in that phrase.
13 Q. (By Ms. Koehler) Well, I didn’t come up with
14 that, your counsel did.
15 THE COURT: Okay. You know, you need a
16 question, okay.
17 MS. KOEHLER: Okay. I’m sorry, Your
19 Q. (By Ms. Koehler) The question is: What
20 degree of — what is your testimony, what is your
21 opinion, what is it called? Is this just a more
22 probable than not opinion, or do you have some kind of
23 way to do your opinion that you would like us to
25 A. Well, it’s my — I’m sorry.
1 MR. WOOD: Objection, vague.
2 THE COURT: Do you feel you can answer the
4 THE WITNESS: I think I can.
5 THE COURT: Go ahead.
6 A. Well, I think it’s the basic premise that I
7 am using is more probable than not.
Photo: Framed picture of me with my best friend in the whole world Shellie on her wedding day. Sitting in my bookcase .
Tomorrow we were supposed to be giving closing arguments.
Instead, today the Court sent everyone home.
Can’t write about what exactly happened. This case is going to be tried again.
But can tell you what it’s like to have a Judge say they’re granting a defense motion for mistrial.
This is the third time I’ve had the experience.
The first time , it was because I told the jury in opening statement, that we were in court because the defendant filed a jury demand. The defense lawyer and the judge were both former criminal prosecutors. The defense lawyer argued my comments violated his client’s due process rights because he had a constitutional right to a jury. The judge agreed, over my sputtering protests that this was a civil case. This is what I learned from that experience: even if a judge is completely wrong, it doesn’t matter. Once they announce a mistrial and send the jury home, there’s nothing you can say or do to change the fact that the trial will need to start all up again.
The second time, it was because I was able to excuse so many jurors for cause. There were not enough left to empanel a jury. That was more interesting than anything. Sure we were inconvenienced, but the actual taking of testimony hadn’t happened yet.
This third time stands apart because it was done virtually at the close of the case, after the defense had rested.
Here is what happens to a plaintiff lawyer when a judge grants a defense motion for mistrial:
- Body tenses, bracing in case the judge actually agrees with the defense.
- Initially hope the words out of the judge’s mouth are philosophical meanderings that will eventually come round to the concept of denying the motion.
- Eventually lose that hope.
- Hear the order without blinking, grimacing, or giving any cue of being upset.
- Become inwardly upset.
- Think about the client having to go through this all over again.
- Think about how the jurors are going to feel when they get the phone call not to return.
- Try to understand the court’s ruling, then realize there’s nothing to understand because it is over and done.
- Think of all the reasons why the judge shouldn’t do this.
- Look at the defense lawyers who are not making eye contact.
- Consider the defense lawyers getting paid for trying a case that they are going to try all over again (and bill for all over again). Am not saying defense lawyers who get paid by the hour have an incentive to ask for a mistrial at the end of a case. Am not saying that…
- Unplug computer, start rolling up cords, put projector in case, all while the judge is still talking about some type of logistical issue. Have temporarily lost the ability to hear what the judge is saying. Good thing co-counsel is paying attention.
- Hear the Judge say they will give the jurors our contact info so they can talk to us if we wish. We wish.
- Email office announcing the mistrial and ask for Mike to come pick up the big screen.
- Begin setting up appointments on other cases to fill tomorrow now that will not be in trial.
- Temporarily ignore the questions from law firm asking what happened.
- Listen to tummy rumble due to spending the lunch hour researching legal grounds for mistrial in the law library
- Decide that being upset won’t help anything.
- Analyze feelings and decide more resigned and irritated than actually mad.
- Channel irritation, pick up Nala at doggie day care and get a salad at Whole Foods.
- Think about eating salad, but instead invite co-counsel over to the house to unwind.
- Which is nice.
- After she leaves for airport, eat salad which is delicious.
- Go for run with Nala that includes a lot of wind, the sun going down, and the slightest amount of drizzle at the very end.
- Make popcorn and watch yesterday’s episode of The Good Wife on Amazon. It’s not the same without Will.
- Watch an episode of Drop Dead Diva. Decide it’s also past its prime.
- Begin to write blog
- See email come in from one of the jurors. Asking what happened.
Photo: The Court’s cow collection on the shelf behind us.
Prologue: The best and worst outfit I ever wore to the Hollyball was when I was President of WSTLA. It was an election year. We were fighting for the insurance fair conduct act. And if you added to all that -raising my girls and handling my job…well….There was no time for shopping.
The theme was the Red Hot Hollyball. And I was determined to do it right. So a few days before the big event, I went online. Promdresses.com or some such website. Found a red hot hollyball dress.
The dress arrived two days later. But didn’t have time to try it on until the night of the Hollyball. It was red and slinky and actually fit which was a good thing. But there was a problem. The neckline was more like a chest line. It was broad and deep and plunged down to my navel. Real fitting for the president of the trial lawyers.
It fit though. And since there was no time to do anything about it, I put on a smile and sashayed forth.
Today, as usual, the Hollyball arrives before I have figured out what I’m going to do about it. A couple months ago I had a few plans and ideas. But one of my cases exploded and that was that.
Get up. Go to office. Work.
Anne comes in around one. She is the opposite of me in terms of being put together. Her hair is curled, she is wearing sparkles, her lips match her nails. I am wearing yoga pants, a sweater hoodie, nike boots, mascara, trader joe chapstick, hair yanked back, and my nails are uniformly chipped and raggedy looking.
I tell her my goal is to spend an hour getting ready for the Hollyball. Even if I didn’t buy an outfit, I can dig around and find something. Anne gives me a pep talk. Something about Sharon Stone tying a plain white shirt around her waist with a long black skirt.
Work more. Need to get going soon if am going to stay on schedule. Plan is to go for run with Nala before primping.
Text message bleeps. Open phone. Photo of smashed bumper. Alysha has been hit. Call her. She’s okay. Happened up on the hill. Some dummy drove throught the intersection without yielding. All but admitted he was texting. She manages to drive the few blocks home.
Finish up stuff at office. Head home. Park in front of her car. Get out. Look at the crumpled little bumper. Neighbor drives up. Examines it with me. Go inside house. Hug Alysha who is calm. Wait for tow truck. They come. Drive to Hertz downtown. Drop her off. Drive home. Consider getting gas. 12 miles per warning light. Will get gas later. Don’t make a wise route decision. Get caught in traffic. Finally arrive home. Gas down to 6 miles.
3:15. Look at computer. Handle emails until 3:40. What am I thinking. Sunset is at 4:18. Throw on running gear. Nala twirling around in circles of excitement. Go for run. Sun goes down. Run in the dark. Make it back. Go to put Nala’s booties back on. She is filthy. It wasn’t raining but the sidewalk/roads/grass/weeds and mud puddles were wet. Give her a shower. Dry her off. Send her on her way. Take shower. Look at clock. 5:45. How did that happen.
Look in closet. Nothing is inspiring. Close it. Get out hair dryer. It is happy to see me. Usually just let hair air dry or pull back in a pony tail. Get most of it dry. Decide to put on more eye makeup than usual. This means some gold and dark gray. Red lipstick. There we go.
And now comes the hard part. What exactly am I going to wear.
Open closet back up. Look at the dresses. Decide am not in the mood. Pull on some black velvet bcbg leggings, add a draping blouse tunic type thing that came from Barneys about four years ago. Grab pencil heeled velvet black boots (these at least are Hollyball worthy). Little Prada silk bag have had for over a decade. Throw on Nike boots and black puffy coat. Out the door.
Car is giving me angry red warnings. Am going to run out of gas. Stop at station. 6:30. Hollyball is starting. Drive downtown. Three miles. 25 minutes. It’s that time of year.
Get to the Four Seasons. Pull off Nike’s and put on lovely boots. Valet gives me stub. Walk into hotel. Turn right. Head towards Spanish Ballroom. Reach it. Empty. Oh dear.
Rush back to valet. They have driven off already. Talk to the door man. He has been here over 20 years. This hotel is the Fairmont. Used to be the Four Seasons. So I wasn’t totally dreaming. The correct one is on First and Union.
Go inside until he comes and gets me. 20 minutes later. Tip him for being nice. Tip the driver for having to drive it for nothing.
Drive down around and over to the correct Four Seasons. Arrive at destination at 7:20. Head toward garage but valet motions me over. Obey. He hands me a stub.
Head upstairs. There are tuxedos and nice suits. Superbly coifed women in sparkly dresses. Everyone looks like they have made an effort. They are so lovely and festive.
And then there’s me. Looking like I’m going to the club.
But no one seems to think it odd.
And we hug and kiss and Hollyball the night away.
Photo: Paul Whelan in his tuxedo with his dear friend Larry Barron
Imagine you are a blonde LA model who gushes, chirps and bats her eyes as she sashays through life. One day you die but up in heaven you brazenly push the return to earth button. Back down you rocket.
At the same time, a brunette, stout, workaholic trial lawyer named Jane saves her senior partner’s life. She jumps in front of him just as a crazed former client shoots. She takes the bullet. Is on the operating table but it is no use. She breathes her last breath and in you drop from heaven. When Jane awakens you are her. Same ditzy yet caring personality but with a twist. Now you are unfashionable, super smart and drive a nice car.
Okay. It sounds ridiculous. But don’t care. Am willing to suspend disbelief in order to be entertained. Here are some of the things I like about the show. Including these little details that would not be possible in real life.
- You are retained by a client in the morning and by afternoon the trial has started
- You only work on one case at a time, this is because you are in trial by the afternoon
- In a wrongful death case, the widow can prove negligence by recounting what her dead husband told her about what the bad guy told him
- Your best friend, a mainly unemployed even more ditzy model, is the one who typically helps you to solve the most impossible of cases
- Your best friend is able to help in part, because you tell her all the gory details of your cases (But isn’t that confidential? Nah).
- You play board games with the judge in chambers because she is such a good friend plus she still presides in cases that you try
- Your best friend the model goes undercover and finds out the bad guy has done the same bad thing to 11 other people. During his cross exam the 11 people in the back row stand up and testify as a group that he did the same thing to them.
- In the middle of trial you find new evidence, come up with a brand new theory and amend the complaint
- During the lunch hour recess of a product liability trial, you serve an ex parte subpoena on a laboratory, locate a smoking gun email, read it to impeach the defendant during cross exam, then admit it into evidence.
- When you do something wonderful in trial – you dramatically strike a “vogue” pose
- You can represent a client against someone who is represented by another attorney in your same firm so long as you erect a “Chinese Wall”
- You have dreams involving Judge Paula Abdul as the central character
- You and your cocounsel take turns grilling the same witness
- In the heat of the moment when the other side is scoring points, you shout out – Your Honor we request a Recess. And it is always granted right then.
- You are allowed to preach and argue when you question witnessesDuring trial you can issue a subpoena to get the secret passcode of a witness (without any notice), and then in trial you can force the defendant University to log into its computer to project the damaging videos
- You can assert res ipsa loquitor to prove medical negligence that amounts to deliberate indifference in a jail case
- You can prove your point by drinking the evidence (camel’s milk) to illustrate it is not dangerous
- You can also enlist the judge to sample the evidence (chocolate cookies) to determine whether fraud has occurred
- During closing argument you tell the jury to imagine themselves as the plaintiff (which directly violates the “golden rule” but who cares)
- In a toxic tort case you are allowed to call the defense lawyer (who is also your former torts professor) as an expert witness to testify about the reasons why a prior case was settled
- Most importantly: You never lose a case.
And this, Ladies and Gentlemen, is why I love watching Drop Dead Diva.
Photo: Drop Dead Diva.