frivolous defenses

The meanest motion ever

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.



Playing the “pot” card against an innocent driver


Driving while high is now being used as a sword by the insurance companies of bad drivers who cause crashes.

Let’s say you live in a state where pot is legal.  You get high on a Sunday evening with a group of friends in your own home.  On Thursday, you are driving down a road and someone runs a red light.  You had a green light.  The bad driver tells the officer that you look high.  The officer doesn’t see anything unusual but asks you to take a blood test.  Carboxy-THC shows up.  You are ticketed for driving under the influence.  Until a prosecutor looks at the blood work and realizes there’s no case.  At which point the charges are dropped.

This is not a fanciful scenario.

Once a person uses marijuana, THC (Tetrahydrocannibol) can stay in the blood stream for days if not longer.  However not all THC is the same.

The pharmacology of marijuana is described in terms of three chemicals:

1) THC, which is metabolized into

2) 11-hydroxy-THC, which is the metabolized into

3) carboxy-THC.

Only the first two chemicals – THC and 11-hydroxy-THC produce impairing effects on brain cognition.  The third chemical form – carboxy-THC is not psychoactive and not associated with impairment.

In a recent case, a van driver blew past a yield sign into an intersection.  At the same time, a car driven by a young man (Hopkins) with two passengers was already in the intersection.  Hopkins was on the arterial and had the right of way.  The van t-boned the car of friends.  Our client was one of the passengers in the car.  She was critically injured.

When the lawsuit was filed, the van driver’s insurance company claimed that Hopkins was at fault for not reacting faster to the van having blown through the yield signed.  They claimed that he had THC in his blood and was driving high.  Hopkins said he had used marijuana a week before the crash and was not driving high.

Attached is the motion for summary judgment filed by Hopkins’ attorney.  The plaintiff’s lawyers joined in the motion.  The van driver’s lawyers opposed it.   After a court hearing, the judge agreed that there was no evidence Hopkins was driving while high and that he was not at fault for the van having run the yield sign.  Hopkins was dismissed from the case.

Motion for Summary Judgment:  Hopkins’ MSJ

Photo:  Animation still by Larry Tompkins, P.E.


Lessons for a defendant: Top 10 things not to do if you crash into someone and hurt them


Here are real life examples of dumb things people do after they hit someone with their vehicle.

10.          Stay put in your vehicle and call your boss before you do anything else.  Give them  the bad news without getting out to see if the person you hit is injured or even still alive.

9.            Get out and hide behind your truck because blood makes you sick and you can’t bear   to look over at it.

8.            Quickly hang up the cel phone and pretend you weren’t on it.  (Cel phone companies keep records of your calls)

7.            Yell and swear at the hurt person.  Yeah.  That always helps.

6.            Get a broom out of the back of your truck and start sweeping up debris before the police arrive.  Also known as tampering with the evidence.

5.            Lie to the officer about whether you have insurance.  Hello – as soon as someone calls that company you’ll be outed anyway. (And turned into Department of Motor Vehicles).

4.            Lie to the officer about what happened.  Especially when there are multiple eye witnesses.

3.            Don’t call or visit them in the hospital to see how they’re doing.

2.            Don’t send a condolence card to surviving family members.

1.            Keep driving so you can toss the empty beer cans out before the police arrive.

Here’s what happens if you do these dumb things:  a) you get caught and then get in even bigger trouble; b) your bad behavior is so offensive that even someone who doesn’t like lawsuits will sue you.

Photo:  The driver of this car blamed the girl she hit for wearing dark clothes as she walked across the street in a marked crosswalk.

How to bite tongue and pound a hammer


A.  This is the polite way I have to fight defendants who move the court to dismiss my client’s case. (Page 1 of 15).

In a chain reaction freeway collision, both defendants admittedly rear ended the vehicles in front of them.  They claim they are neither negligent nor a proximate cause of injuries to Mr. F who was smashed in between them.

If this collision had been caught on film, the defendants would not have the temerity to bring this motion.  But due to darkness, air bags deploying, and various levels of unconsciousness, the individual participants are not always precise in the retelling of the story.  Thus giving rise to defendant’s misplaced hope that they can avoid responsibility.

The defendants effort should fail for the following two reasons: 1) the facts as perceived by five different witnesses, are clear enough to prove negligence and causation when viewed in the light most favorable to plaintiff; and 2) the expert forensic reconstruction of the collision performed by expert Larry Tompkins fully supports plaintiff’s liability case.

B.  Here is  wishful thinking  of what I’d like to actually tell the court (Page 1 of 1):

This motion is a frivolous waste of time.  The defense filed this because they get paid by the hour and don’t care if time is wasted.  Their actions caused Mr. F’s car to get bashed to holy heck.  Their dumb motion should be thrown out of court.

C.  Here is the letter I sent to the defense counsel after I had to write the formal (polite) motion response.

Cvr Ltr re MSJ Response 9.10.12.pdf

D,  And then what happens?

Well, as of today Sept. 13th, one of the defendants has caved.  If the other one doesn’t drop it, he will be pounded to smithereens at the hearing.

Ridiculous defense of an intersection crash case

yieldOnce upon a time, a dude entered an intersection and decided to turn left.  Problem was, there was another car (lawfully) coming on through.  So he crashed into it.  Since the female driver had a green light, anyone who drives a car knows – the dude should have yielded right of way.

Enter the defense lawyer.

I file the complaint.  The defense lawyer says -dude is not at fault.  I bring a motion to kick out the bogus defense.  The lawyer then threatens to ask the judge to sanction me for bringing a “frivolous” motion.   I ask his supervisors to remove him from the case.  They don’t.

This is all part of the insurance company’s plan.  It is called Deny.  Delay.  Defend.   It is also called scorched earth tactics.  Designed to wear us plaintiff lawyers down.  Unless we have DNA that acts in reverse when confronted by adversity.  In which case… Bring.  It.  On.

Here’s the transcript from the hearing.  You will be dazzled by the brilliance and logic of the defense lawyer’s reasoning.  Or maybe not.

MR. SCISCIANI:  Your Honor, Counsel for the


1         plaintiff is correct, this is a case about a car accident

2         in which the defendant, Matthew K, my client, was indeed

3         turning left and that’s when the collision occurred.  The

4         scope of undisputed facts, that’s it.  We don’t have any

5         evidence submitted by the plaintiff on Summary Judgment to

6         close the door on contributory fault.  She seeks an order

7         characterizing our client, Matthew K as negligent, and

8         the sole cause of the accident.  She seeks an order

9         characterizing her own behavior as blameless.  What the

10         plaintiff asks for by their Motion for Summary Judgment is

11         provided for in a jury instruction, which underscores the

12         fact that this is a question of fact for the jury.  The

13         jury instruction specifically says, and it is quoted in its

14         entirety on Page 10 of our brief, it says, “Statute

15         provides that a driver intending to turn to the left within

16         an intersection shall yield the right-of-way to any vehicle

17         approaching from the opposite direction that is within the

18         intersection or so close thereto as to constitute an

19         immediate hazard.”  This right-of-way, however, is not

20         absolute but relative.  And if we look at Washington case

21         law —

22                       MS. KOEHLER:  Your Honor, I ask that he

23         complete reading that.

24                       MR. SCISCIANI:  I’d be happy to.  The entire

25         jury instruction is submitted in our brief:  “And the duty



1         to exercise ordinary care to avoid collisions at

2         intersections rests on both drivers.  The primary duty,

3         however, rests upon the driver turning to the left, which

4         must be performed with reasonable regard to the maintenance

5         of a fair margin of safety at all times.”

6                 If we look at the case law, even the cases relied

7         upon by the plaintiff, there’s cases — there are cases out

8         there, there’s one in particular, the case that we cited in

9         our opposition, that involves a pedestrian who was lawfully

10         in a crosswalk with the walk signal.  The question of

11         whether that pedestrian should have looked to see if there

12         was traffic that was not going to yield was submitted to

13         the jury.  The court underscored the fact that those issues

14         are questions of fact, they’re provided for in the jury

15         instructions, and certainly in this case we recognize that

16         our client had the obligation to yield right-of-way.  The

17         question, then, is, did the plaintiff have an

18         opportunity — we’ve all been cut off at intersections.  We

19         can’t just steamroll through and plow into the left turning

20         vehicle, get out of our vehicle and blame it.  It’s not

21         strict liability.  The oncoming driver has an obligation.

22         If the jury finds that she had an opportunity to avoid this

23         collision, then there’s contributory negligence.  Now, it

24         may be a 90-10, it may be an 80-20, may be 70-30, may be

25         95-5.



1                 The point is, on summary judgment without any

2         evidence submitted by the plaintiff on the issue of

3         contributory fault, the door stays open.  The record is

4         devoid of evidence that she took evasive action.  As the

5         moving party on Summary Judgment, seeking to close the door

6         on contributory fault, and to seek an order from this court

7         as a matter of law that her behavior, her driving was

8         lawful and blameless, she has to come forward with the

9         evidence to merit such a characterization.  There’s no

10         evidence — I’ve already read before the court the

11         statement from the witness that the vehicles collided.

12         They shed no light on evasive action.  In fact, it’s devoid

13         of any evidence that Ms. L swerved or braked.  From

14         the photographs, it could be reasonably deduced that these

15         cars would not have collided, notwithstanding my client’s

16         failure to yield had some evasive action been taken.

17                 Now I’m not going to purport to be an accident

18         reconstructionist, and I’m not going to purport to have

19         been there at the accident to characterize what exactly

20         happened.  That’s for the witnesses, that’s for the jury.

21         That’s all I have, Your Honor.

22                       THE COURT:  Counsel?

23                       MS. KOEHLER:  Your Honor, did you see the

24         photographs of the vehicles? [head on impact]

25                       THE COURT:  Yes.



1                       MS. KOEHLER:  The defendant has, on a

2         comparative fault claim, which is an affirmative defense, the

3         burden of proof . There is no attempt other than speculation to say

4         that this person, Miss L, going through a green ball

5         on a green light behind another vehicle did anything wrong.

6         For this reason, we believe that Summary Judgment on these

7         facts should be granted.

8                       THE COURT:  All right.  Partial Summary

9         Judgment is granted on liability.

10                       MS. KOEHLER:  Thank you, Your Honor.


Diagram:  By the defendant in his deposition.

And he lifted his arms to the sky and declared: you are healed!


If you are walking in a marked crosswalk with a pedestrian light on.  With friends.  And a guy in a Honda is talking on his cel and decides to turn left.  And mows you down.  The car strikes you.  You land on top of the hood and then fall down and strike the pavement.   And you are taken by ambulance to the hospital.  And end up bruised and hurting all over.  Then you my dear friend need to see Dr. Sean Ghidella.  Because according to him – you will be healed and back to normal within three months.  Boom.  Just like that.

That’s what he testifies to today in a binding insurance arbitration proceeding.  Under oath.

Now there is an exception.  If you have a pre-existing susceptibility to injury the three month rule won’t always apply.  But never fear.  It is highly doubtful you are alive if you suffer from the kind of pre-existing condition that Dr. G is talking about.

In this case, the 34 year old woman had scoliosis which is an abnormal curvature of the spine.  Some of us develop or are born with it.  We can be a bit out of whack because of it.  She also was having some spine discomfort due to a situation at work in the months leading up to being hit.  But was any of that a pre-condition that could have made it harder for her to heal.  No way.

Dr. G says – if you were on top of a building and fell eight (8) stories and had orthopedic injuries and survived – that would be a preexisting condition.

So the good news is the woman did not fall eight (8) stories before being hit by the car.  She should have healed in three months.

You know what a defense attorney does with that kind of testimony.  Um hum.  Attacks the woman’s credibility.  All of her injuries (after the magic three months) are due to something else.

Moral of the story:  if you are hit by a car and haven’t fallen eight (8) stories before hand, then go see Dr. G.  He will heal you in three months.  Boom.  Just like that.

Postscript:  The Arbitrator – Scott Holte – did not have quite as much faith in Dr. G as the defense.  In ruling for the plaintiff here is in part – what he said:  I do not find Dr. Ghidella’s report and testimony on the causation issue is persuasive.  Specifically I don’t find that Dr. Ghidella’s opinions have a sufficient factual foundation…



Judge pounds defense firm

decision-thumb-325x456-11498We send out written questions allowed by court rules.  We get back pages of objections from the defense.  Pages and pages sometimes.  This is not only irritating.  It is frustrating.  Because we tend to sue big corporations, insurance companies and sometimes the government.  If they hide things, it makes it difficult to prove a case.

Well, this time, a judge said “not in my house!”  My friend Robert B from Arizona sent me this fantastic transcript.  Which I would like to frame.

Click here to read:  excerpt 4-13-11.pdf

Check out a recent interview by Super Lawyers about my blog. Yes, I'm a lawyer. But I'm also a human being. I have a doggie named Nala, three daughters, eat brown sugar cinnamon pop tarts for breakfast, and wear jeans as often as possible when not in court.
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