opening statement

Trial tips for attorneys: Throw these phrases out with the trash

dan

We lawyers are trained to be precise.  Everything we say has to be supported.  If we’re laying out facts to a judge – we need to cite to the source every single time.   This breeds a habit of presentation that can be overly meticulous and filled with legalese.  It can be a hard habit to break.

In trial, a good way to doom an opening statement, is to recite lists of data.  We know that people learn more easily through story telling.  So we set out to tell a story.  But before long, we find ourselves lapsing into our data based ways.

The following phrases are loved by lawyers.  They are not loved by real people.  They are space fillers.  They are time wasters.  They interrupt the flow of a story.  They are triggers for the lawyer to spew data.  These phrases add nothing to an opening statement.  They need to be retired:

  • The evidence will show
  • The witness will testify that
  • You will hear from

Photo:  Dan’l Bridges giving the defense opening statement at the Advanced Trial Advocacy Program at Seattle U Law School today.  Hon. Judge John Chun presiding.

 

 

Damages Opening Statement: catastrophic brain injury case

     chartopening

Both sides used extensive demonstrative exhibits during opening.  Basically we agreed that I could use what I wanted so long as they could use what they wanted.

The transcript is not very accurate (understatement).  The courtroom was video recorded.  If we wanted a quick transcript, at the end of the day  the bailiff would copy the recordings and provided them to a court reporter. The reporter would then transcribe from the videos with only moderate success.

Frankly, it’s a bit distracting to try to read this.   At times I sound completely illiterate.  And you can’t see the exhibits, Videos or PowerPoint.  Still, it gives an idea of the damages portion of opening statement.

 

6    This is the overview of C’s
7   injuries that I’m going to talk to you about now.  She
8   had what’s generally called a diffuse axonal injury,
9   meaning that there wasn’t one, you know, particular —
10   there it is, that’s the part of the hemorrhage that is
11   the problem, it’s all over her brain.
12             It’s in all of these different areas that
13   are noted here.  It’s pretty much all through it.  The
14   doctors — and you’ll be able to see brain and
15   neurologists looking into the brain and showing you
16   all of the problems by videotape.
17             At this point we are going to show you an
18   animation that’s not an actual brain surgery, but
19   we — there are so many medical records; for me to
20   tell you them would take a long time and be very
21   boring, and instead, we can show it to you.
22             This was recreated, and doctors have signed
23   off on it as being what happened with Chanetelle.  I’m
24   going to do this without any explanation.  During
25   trial we’ll have somebody explain this.
0021
1             (Video playing).
2             That was the first surgery.  And what
3   basically happened, I’m not a neurosurgeon, but just
4   so you know, when the brain is injured like that, like
5   any body part, it wants to swell.
6             So in order to prevent probably death in
7   this case, the doctors have the technique where they
8   actually take off parts of the skull, and that allows
9   the brain to swell beyond, you know, the head, where
10   it needs to go, and then eventually it will go back.
11             And that happened.  They actually put the
12   skull in a freezer, a piece of it in a freezer, and it
13   stays there for, in this case, about half a year.
14             So this is going to be the second surgery of
15   this procedure.  There were lots of other surgeries,
16   and I’ll talk to you about those later, but this is
17   the second surgery on putting the skull back.
18             (Video playing.)
19             It’s amazing, surgery, and — they were able
20   to put most of it back together, but you can see it’s
21   not quite all the way.
22             Looking at the damage to C’s brain
23   is an interesting medical feat.  There is a
24   neurologist who is — has a very, very high quality
25   brain imaging beyond MRI.
0022
1             And this is kind of Greek to some people,
2   including me, but I have a blowup here.  And MRIs are
3   kind of like, they take slices this way, so it’s kind
4   of — you’re not seeing a three-dimensional, and
5   that’s why there’s so many of them.
6             So, for example, what this shows are pretty
7   much black holes.  The black holes are where the brain
8   hemorrhages were that have permanently damaged the
9   brain.  And these, again, are scattered all through
10   C’s brain.
11             But I just wanted to pull one so you could
12   see it.  There will be more testimony on how her brain
13   was injured from a scientific standpoint.
14             C was in a coma for five weeks at
15   Southwest Medical Center.  She has had a very
16   difficult course of treatment and came close to death
17   many times.
18             She is, you know, a miracle, because in
19   April they were going to put her in a, basically, I
20   don’t know a better word to say this, but more like a
21   warehouse type of place where a person that’s
22   completely non-responsive goes, you don’t need therapy but
23   they’ll care for you.  It’s a hospital bed where — so
24   she’d been stabilized by this time.
25             And I think it was the morning that she was
0023
1   destined to be moved, she startedtalking — it’s in the chart
2   notes, and it’s quite remarkable, that that was one of
3   her miracle points, and changed the course of what
4   she’s able to do today.
5             This is C, this is when she
6   has had — her skull piece is not there, so you can
7   see that her temple is sunk in.  This is her long-term
8   boyfriend, who is still her boyfriend and fiancé,
9   J.
10             Because of the coma, and then how she’s been
11   able to recuperate and what she’s left with,
12   C is appearing in this case under her
13   guardian, KB is here.  He won’t be here
14   during the entire trial due to his commitments because
15   he’s a full-time guardian.
16             He’s appointed by the court to authorize
17   this litigation, the hiring of Mr. J.  And
18   this — and basically, at this point, to manage every
19   single aspect of C’s life because she did
20   not — she was incompetent to do so, in part because
21   of the coma, and then her severe restrictions after.
22             So I’d like to talk about some of these
23   injuries.  These are hard to read, but we’re going to
24   be going over them quite a bit.
25             Do people want to stand up while I do this?
0024
1             THE COURT:  Do you need to set up?
2             MS. KOEHLER:  I just need to get it, and
3   then set it up.
4             THE COURT:  (To the jurors)  Did you want to
5   stand up for a second?  You’re welcome to.
6             MS. KOEHLER:  So these are the injuries that
7   she suffered.  And I’m doing it this way rather than
8   showing you, literally this many medical records,
9   piece by piece.  So we already talked about the
10   traumatic brain injury, which is the most severe
11   injury.  She —
12             THE COURT:  Do you need a laser pointer?
13             MS. KOEHLER:  No, I’m okay.
14             This is a little bit bigger, so you could
15   see it a little bit better.  She was obviously not
16   able to function without mechanical equipment, so she
17   agreed, through a tracheotomy tube that was placed,
18   and you’ll see that she did have a recurrent lung
19   collapsing.  Unfortunately she got MRSA.
20             She had right-sided rib fracture, she had
21   problems with her lungs, fluid buildup in the lungs,
22   she had — her spleen was lacerated from the
23   collision.
24             She had major problems with her feeding
25   tube.  To this day she has — she literally has a scar
0025
1   that looks about like this, maybe it’s a little
2   taller, it’s a big — it’s very thick.  Because they
3   had to do so many operations on that feeding tube, it
4   got infected.
5             She just — that was — it was almost
6   life-threatening at times, it was very, very
7   problematic.  Peritonitis, which was the infection,
8   she has septic shock, recurrent urinary tract
9   infections because of the catheter injuries, and she
10   also ended up having a blood clot.  This was just a
11   very sick gal.
12             So let me go to the surgeries.  And this is
13   a little bigger.  These are just representatives.
14   This is of what would generally happen.
15             So the first procedure that was done of her
16   brain was to put a monitoring device inside of it, into
17   it.  You saw this surgery, the second surgery is one
18   of the surgeries that you saw.
19             She had a chest tube surgery, she had
20   feeding tube surgery, she had breathing tube surgery,
21   she had another chest tube surgery because of
22   complications.
23             On March 11 she had the abdominal leaking
24   and the sepsis and all that, so she had that repeated
25   feeding tube surgery.  She had to have lung intubation
0026
1   on March 14, she had to have it again on March 21st.
2             And then like I said, it’s about half a year
3   later, September 23rd, she had the final surgery to
4   reattach her skull piece.
5             So these are surgical procedures, not the
6   multiple other procedures that she had.  The date of
7   her discharge diagnosis — normally when you go to the
8   hospital and you have a discharge diagnosis you have
9   one or two things.  As you can see, she had 14 items
10   on her discharge diagnosis.  I’m going to show you
11   those in a minute.
12             This is — her day of admission was
13   February 27th and her date of discharge, which was, as
14   I told you, the miracle when she was able to not be
15   discharged to be warehoused to be rehabilitated.
16             This is a bigger version of her discharge
17   diagnosis.  So again, her admission discharge is
18   different than your discharge diagnosis, which is why
19   I’m going through this again.
20             She has a traumatic brain injury, and this
21   is their words, not mine, acute respiratory failure
22   with tracheostomy placement and also removal, right
23   pneumothorax with chest tube placement times two
24   resolved.
25             Pulmonary contusion, the fracture of the
0027
1   right fifth rib, the splenic injury, grade 1.  Her
2   gastro tube placement.  She had a laparotomy for the
3   G-tube erosion with new placement of the G-tube.
4   Spasticity, the entire left side, greatest in the hand
5   and foot.
6             She had some other issues like dehydration,
7   acute blood loss, anemia, hyperkalemia, leukocytoses,
8   and narcotic dependence due to the pain medications
9   they were giving her, so this was as of April 3rd,
10   2009.
11             What I’m going to show you now is a video of
12   Ctaken on May 12, 2009.  So this is —
13   I need power.
14             All right, so this in May of 2009.  I
15   believe that this entire video is like an hour and a
16   half, so it’s not what you’re going to be watching,
17   you’re going to be watching, I believe it’s something
18   like four minutes, so you might see some editing, and
19   it’s simply because it was an hour and a half.
20             So this is C in rehab on
21   May 12, 2009.  Let me tell you one other thing.  We’re
22   going to have sound with this, and I’m not sure,
23   because this is an open therapy room, you might hear
24   therapists that are talking to C and other
25   people talking, so it might be a little distracting,
0028
1   but I think you can sort it out.
2             THE COURT:  Would you like to take a break
3   while you work out the technology?
4             MS. KOEHLER:  He’s got it, but he’s got a
5   30-minute version.
6             THE COURT:  I’m going to give you the
7   morning break while we work with technology to try to
8   figure it out.  Leave your pads on your chair and go
9   on back to the jury room.  About 15 minutes, folks,
10   roughly.
11             (Jurors exit courtroom.)
12             (Recess was taken.)
13             (Jurors enter courtroom.)
14             THE COURT:  Have a seat.
15             (Playing Video.)
16             MS. KOEHLER:  My apologies.  She was
17   discharged from the hospital on April 30, so a month
18   and a week later in the rehab.  The other woman in
19   this film is K, which is C’s
20   grandmother, the blond woman.
21             (Video concluded.)
22             MS. KOEHLER:  We’ll be showing more pieces
23   of this.
24             For example, she’s going to be working on
25   speech.  She works with a number of different
0029
1   therapists to reconstruct her ability to do some
2   things like speech and memory.
3             You know, the reason that she can’t walk is
4   not due to an orthopedic problem, she didn’t break
5   bones and she’s not paralyzed from a spinal cord
6   injury.  She’s got a very severe brain injury.
7             You probably don’t know very many people
8   that have a brain injury that has resulted in
9   paralysis and spasticity of parts of the body.
10             The way that this works is the primary blow
11   is to the right side, and that correlates to the left
12   side being, for whatever reason, I don’t understand it
13   myself, that’s the side that is paralyzed and spastic.
14             She’s wearing the helmet, and she does that
15   until she gets her brain — sorry, her skull put back
16   together, so it’s a protective device.
17             C, I can’t remember exactly —
18   we’re getting closer to the end, so I’m trying to
19   remember exactly what’s on my machine, but she was not
20   able to walk much better than this after the hospital
21   and getting through all of this rehab.
22             Washington State and Oregon do not have a
23   specialized inpatient program for people with severe
24   brain injuries that’s devoted to that, this is more
25   general kind of therapy.
0030
1             So for that reason, her guardian authorized
2   her to go to a brain injury specialty center in West
3   Virginia.  And she did that in between November and
4   December of 2009.
5             They wanted to keep her longer.  You’ll meet
6   C, and you’ll see that she is — she is a
7   forceful personality.  She does not want to stay away
8   from her family and she wanted to come back here, but
9   she did stay for a full month.
10             And when she left, she was able to walk.
11   Maybe not like you or I, but she was able to walk.  So
12   it’s gotten — it eventually — brain injuries, you
13   can progress with or without hard work if you’re
14   lucky, and then you plateau after I think —
15   the doctors will say two years after an injury, you’re
16   pretty much as good as you’re going to get, although
17   you can always work to strengthen and do that.
18             So she made remarkable progress from the
19   time she was discharged and then for the next two
20   years.  She really did do well.  But there’s a feeling
21   on how well she can ever get.
22             So in February of — the date’s on the next
23   page.
24             MR. SCARPELLI:  January 2011.
25             MS. KOEHLER:  January 2011 she — a company
0031
1   that was part of her guardian went back to court.  She
2   was no longer comatose and she was no longer in a
3   rehab facility.
4             After she left Virginia she came back to
5   stay with her grandmother, and then she and her
6   boyfriend, J, moved out into an apartment for a
7   while — it’s back and forth from the grandmother to
8   this apartment to the grandmother, but for a while
9   they had an apartment.
10             And she went back to court to have some of
11   her rights restored, because you’ll remember when the
12   guardianship was entered, it was a complete
13   guardianship because she had just come out of a coma.
14             So these are the rights that were restored
15   to her.  She can vote, she can possess a license to
16   drive, though she doesn’t, she can consent or refuse
17   to medical treatment, she can decide who will provide
18   care and assistance to her, and she can make decisions
19   regarding her social life.
20             This is what she still cannot do.  She
21   cannot marry or divorce, she cannot enter into a
22   contract or make or evoke a will, she cannot appoint
23   someone to act on her behalf, she cannot sue or be
24   sued other than through her guardian, she cannot buy,
25   sell, own mortgage or lease property, and the guardian
0032
1   continues to have access over her medical records.
2             In other words, what happens is that the
3   guardian manages most of her affairs.  She gets, for
4   example, an allowance.  She has difficulty managing
5   anything.  And we’ll hear from some other people that
6   work with her on a regular basis as to how challenging
7   that is.
8             Let me tell you a little bit about
9   C before I finish here.  C was born
10   to parents who were not the best.  Her father has
11   definitely gotten better as he’s gotten older.  He’s a
12   source of a parental involvement now in her life,
13   whereas in her childhood he was absent.
14             Her mother, I think she — I think C has
15   seven brothers and sisters, all of whom have different
16   fathers, so there are a lot of half-siblings.
17             Her mother did not maintain a household for
18   the children that was regular, so C was moved, for
19   example, periods of homelessness on top of it.
20             So she did not have the privilege of going
21   to an elementary school and a junior high and a high
22   school in the same — you know, like our children do.
23   It was constant upheaval and difficulties with her
24   mother.
25             Regardless of all that, I call C —
0033
1   and I think that the words to me that describe

2   C is that she’s just truly got true
3   grit.
4             She dropped out of high school, but she took
5   her GED.  She was tested early in the third grade, and
6   then not ever tested again for things like IQ.  Her IQ
7   was normal, it was average.  And she passed her GED,
8   which does take some brain power to do.
9             And at the time of this collision she was
10   living with J.  They had gotten an apartment
11   together, and she was — had a part-time job providing
12   childcare for a woman with an autistic child.
13             Her passion in life is children, probably
14   because she spent her life taking care of her younger
15   brothers and sisters.  That’s what she wanted to do
16   with her life was — her big dream was to own her own
17   day care.
18             That was — that, to her, would be
19   absolutely the best thing of life.  Who knows, because
20   she was 18 years old when this happened.
21             So as a brain-injured person now, there’s a
22   little different issue going on.  Her true grit is
23   still there, and you’ll see it, but there’s something
24   else that’s there, and that is that she’s no longer
25   the same person.  You can still see bits and pieces of
0034
1   her, and if you’re with her for an hour, you’re going
2   to be drawn by her.
3             But what you see for a short period of time
4   is not what you get with C.  She has a
5   lower IQ, she struggles very hard to not show any sign
6   of being injured at all.
7             She doesn’t acknowledge that she’s injured,
8   she doesn’t want to be injured, she doesn’t want to
9   act like she’s injured, she doesn’t want to have
10   anything to do with being labeled an injured person,
11   and that is probably  the reason that she’s able to
12   walk.  She just really, really, really did not want to
13   have her life change from this, and really struggled
14   to get better.
15             But there’s some problems, because she’s
16   reached that plateau point where she’s not getting —
17   she’s not going to see that day, the miracle moments
18   are gone.
19             One issue she has that’s rather severe is
20   that she was injured in her temporal lobe.  She’s got
21   major emotional — and we will look at them as
22   emotional problems, but they’re not just — you can’t
23   go to counseling and fix this problem.  She cycles up
24   and cycles down very, very fast, escalating to anger.
25             She’s verbally abused everyone in the
0035
1   guardian’s office.  She — she is sweet, and in an
2   instant goes another direction.

20             I told you during voir dire that there are a
21   lot of expenses involved in this case, and I know that
22   it sounds like a lot of money, and it is.  We didn’t
23   create how much it costs to keep someone alive
24   following a collision like this.  She didn’t choose to
25   go to the hospital.
0036
1             Her past medical expenses are $733,000, just
2   for her past medical expenses.  She is not going to
3   work again.  There have been suggestions that maybe
4   she can volunteer somewhere, maybe she can find
5   periodic — some type of employment.  Because of her
6   volatility, working with …

16             And I’m not doing the math, but there will
17   be people in here to talk about that.  And her wage
18   loss for a lifetime, even at a very low rate of pay,
19   she only had a GED, she wanted to work in childcare,
20   is still somewhere around $2 million.
21             The bigger amount of money is the amount
22   needed to care for C.  She has caregivers.
23   She’s had caregivers that were hired way more than
24   they are now.
25             One of the problems that we’re seeing, the
0037
1   guardian will talk about, is that she’s not having
2   enough care.  Her house is becoming
3   unmanageable-looking.
4             She’s got very poor hygiene, she doesn’t eat
5   right, to the point where she’s had to go to the
6   doctor for digestive problems.  You told her to eat an
7   apple, she eats like she’s a 13 year old boy.
8             So there’s caregiving expenses needed for
9   her, and those are going to be projected for you.
10   There’s a big range, and I’m not going to even get
11   into why there is a range, but our job is to make sure
12   that there’s enough money, if liability is found, to
13   take care of her.
14             This is the last video I’m going to show you
15   of C.  As I told you before, if you
16   spend a few moments with her, you will find her charming, and
17   if she’s in a good mood, you probably won’t know that
18   there’s a problem.
19             Try to take her out to dinner and there’s a
20   piano playing and people talking, and you’ll see she
21   won’t even walk into the restaurant.  She can’t deal with any kind
22   of multiple sounds or distractions.
23             She just cannot — she’s just not able to
24   function like a normal person, even though she tries
25   her best to look like one.
0038
1             She’s had her deposition taken two times in
2   this case, and the last time — and a deposition is
3   when your sworn testimony is taken by the other side,
4   in this case the defense, and her last deposition was
5   taken almost two months ago.
6             And I want you to see that she has made
7   progress, she’s not like the person that we saw in
8   May.
9             I would like you to notice — I’ll tell you
10   what she has is she still has a footdrop, she has
11   difficulty walking, the left side of her body is
12   paralyzed, she has very little use of one of her arms.
13   And this is just to show you the brain injury can be
14   seen here.
15             (Video playing.)
16             MS. KOEHLER:  Thank you

Injury diagram by Duane Hoffman.

The angry juror: a trial diary story

squaring-off-thumb-450x321-25151 

This excerpt is from a 2012 trial.

Trial day 2

Arrive early to get everything set up for opening.  The Prolumina (tech) guy is there to run everything for Nick the defense lawyer.  He is playing with our big tv.  We are chit chatting and my computer won’t boot up. Are you kidding me.  Hard start it.  Nothing.  Not panicked at all.  Which sounds ridiculous.  Should be hyperventillating.

But it isn’t even 8:30.  No one has arrived except the two of us.  And I’ve never had a computer fail doing an opening in trial.  Which is a dumb thing to say because this could be the first time.

Prolumina guy comes and fiddles around trying to help.  Nothing.  But then everything pops up all on its own.  Sheesh. I then connect the laptop to the tv via a local network linking me to an apple tv device that wirelessly connects me to the tv.  With a little help from G my co-counsel.

Now you’re probably wondering if I am trying to get into a Zen space. Channeling energy. Reviewing a speech in my head.  Taking one last look at the 80 slides in the powerpoint. Saying prayers.   Do I have anxiety.  Am I scared, nervous, excited.

Here’s the truth.  I am serenely peaceful.  I do no further preparation.  I am in the zone where I need to be.

Am chit chatting with Michelle the clerk who says – can you believe that juror (from yesterday).

Now, I haven’t told you about her yet.  It just seemed like such bad luck to do so.  Remember, many jurors were upset they weren’t relieved of duty due to the length of the trial.   Well, after the jury was sworn in and left the courtroom, we could hear one of them shouting at Rhonda, the court staff who acts as the bailiff.

I didn’t dare ask what went down.  But Michelle now tells me that Rhonda said it was one of the worst altercations she’s ever had with a juror.  Rhonda strolls in a while later and tells me that the juror got right up in her face and it was all she could do to calm her down.

We are all going about our business.  Clerk Michelle announces a little after 9, that we are missing one juror.  Guess which one.  We are all taking bets as to whether she will show.  We all guess no.  We are wrong.  She not only shows, but she takes a seat by herself in the courtroom gallery. The better to glare at us.

As soon as Michelle sees her, she hustles her back to the jury room.

All rise.  Judge Wulle enters.  Says – that juror wants to come in and talk to you.   All of us look at each other.  We don’t want to talk to her.   I ask that she be dismissed and an alternate seated.  Nick opposes.  He wants that angry juror to stay to ruin the case.  The court states his concern that she is not only rude and attacking towards his staff, but she is bringing down the rest of the jury and making things miserable back there.  Bill the other defense lawyer says he’s fine with her leaving.  Nick has to be talked around.  He warns that if we lose more jurors then we could be in trouble due to the length of the trial.  It is a gamble we have to take.

The judge leaves to give the angry juror the news.  We wish him luck.  He marches out of the courtroom with great gusto.  Comes back in.  Tells us he informed her she was being kicked off and that she a poor example of what it means to be a citizen.  We cheer him.

She slams out of there.  The whole courtroom breathes a sigh of relief.

Time for opening.  And I let it flow.

All the way up to slide number 75.  An imbedded video clip that somehow has been corrupted.  This doesn’t really bother me at all.  Again – strange right.  Should be having a holy cow.  Have been going for an hour and a quarter.  So we take a 5 minute break which works perfectly.   Fix the problem in under a minute.

Tummy has been rumbling since didn’t eat typical delicious breakfast.  Go into foyer, pull out Cherry pop tart and have at it.

Break ends.  Finish opening.

Photo:  My law partner Keith Kessler and I pretend-angrily squaring off before a boat race at a WSTLA (now WSAJ) convention – the year before I joined the firm.

 

What defense lawyers like plaintiff lawyers to do in opening.

grays-harbor-courthouse-thumb-450x600-24862

Number 1:  Ignore the defense.

We set the case up for disaster if we build it way up and ignore what the defense is going to do to it.    This would be like a basketball coach only having the team practice offense.

Instead, the coach studies the next opponent.  Maybe sends out a scout.  Watches film.  Devises strategies.  Practices then implements them.  Because sometimes, the best offense is a good defense.

Opening statement is similar.  We don’t want to spend too much time being defensive.  That will give too much credence to the other side.  But we need to identify and deal with the bad things they will be throwing at the jury.

Number 2:  Present the plaintiff as a perfect person.

Every once in awhile there will be a plaintiff who is almost saintly in their wonderful-ness.  But by and large most plaintiffs are human beings like the rest of us.  Jurors don’t expect our clients to be perfect.  When we try to prove them so, we set them up for failure.

We are living in an age where The Kardashians are our favorite TV family.   Charlie Sheen has become even more famous as he unrepentantly unravels in the most public way.

It’s okay for our clients to “be real.”

Defense attorneys have amassed an arsenal of information to be used somehow some way against the plaintiff.  If we try to present the perfect plaintiff, the jury will be hoping the defense can topple them over.

Number 3:  Overly focus on liability.

David Ball’s rule is to spend less time on liability than damages.  In fact, he recommends spending as little time on liability as needed to get the job done.  His point is that we are not going to trial to simply get a pronouncement of responsibility.   The jury needs to assess money damages (there are no other kind in our judicial system) to make things right.

When we focus too much on liability, the jury forms the opinion that determining liability will be their main if not only important job.

Liability issues can also be quite complex.  Complexity is a friend of the defense.  The more complex, the more confusion.  The more confusion the more hesitancy.  The more hesitancy the more likely a defense verdict.

Number 4:   Use overt persuasion

We have to build trust in order to gain credibility.   Jurors assume we have been trained to manipulate and persuade them.  They guard themselves against us.  By gosh – they aren’t going to fall for those darned lawyer tricks.

I’ve seen a trend recently with certain insurance companies.  Their lawyers are not very good.  Some are quite awful.  We may act smugly.  We are obviously the much better skillful lawyer.  But jurors may side with the defense lawyer simply because they seem so out-classed.  That lawyer is seen as the honest one who doesn’t need to rely upon a silver tongue.

This doesn’t mean we can’t tell a story or be dramatic.  There’s nothing wrong with being entertaining as we educate.  But unless we present a humble, even handed, concrete, believable account, we lose credibility before we ever get it.

Number 5:  Overreach

In general, it is a bad idea to blurt out what sum you will ask the jury for in opening.  There may be exceptions.  But my opinion is – don’t do it.  Your relationship with the jury is just beginning.  A strong bond has not yet been forged. The time just isn’t right.

Besides, how often have you put a price tag on a case before trial and ended up with a verdict for that exact amount.  It’s happened to me just two times as a plaintiff lawyer.

This isn’t to say a damages number should just pop out of thin air as a pronouncement during closing.  Talking about case value often begins in voir dire then winds its way through the case.  it is a process.   We won’t know how the case is going, until it goes.  We won’t get a sense of the jury until we spend time with them.  Determining the right amount to request involves a stew of factors.  We need to let them simmer before serving.

So don’t make the defense lawyers happy.  Deal with the bad stuff. Present an imperfect real  plaintiff.  Spend time on both liability and damages.  Build trust.   And don’t overreach.

Photo:  The beautiful Grays Harbor Courthouse

Excerpt of opening statement from a traumatic brain injury case

brain2

We used a ton of visuals in this case. Opening was filled with animations, blow up charts, video, and story boards. In this brief excerpt you can hear what was said to weave in all the images.  As with all transcripts, I leave in all the typos as well as all my word flubs.  I say “you know” too much.  That’s for sure. 

Transcript of a portion of the opening statement to the jury: 

This is the overview of C’s injuries that I’m going to talk to you about now. She had what’s generally called a diffuse axonal injury, meaning that there wasn’t one, you know, particular — there it is, that’s the part of the hemorrhage that is the problem, it’s all over her brain.

It’s in all of these different areas that are noted here. It’s pretty much all through it. The doctors — and you’ll be able to see brain and neurologists looking into the brain and showing you all of the problems by videotape.

At this point we are going to show you an animation that’s not an actual brain surgery, but we — there are so many medical records; for me to tell you them would take a long time and be very boring, and instead, we can show it to you. This was recreated, and doctors have signed off on it as being what happened with C. I’m going to do this without any explanation. During trial we’ll have somebody explain this.

(Video playing).

That was the first surgery. And what basically happened, I’m not a neurosurgeon, but just so you know, when the brain is injured like that, like any body part, it wants to swell. So in order to prevent probably death in this case, the doctors have the technique where they actually take off parts of the skull, and that allows the brain to swell beyond, you know, the head, where it needs to go, and then eventually it will go back. And that happened. They actually put the skull in a freezer, a piece of it in a freezer, and it stays there for, in this case, about half a year.

So this is going to be the second surgery of this procedure. There were lots of other surgeries, and I’ll talk to you about those later, but this is the second surgery on putting the skull back.

(Video playing.)

It’s amazing, surgery, and — they were able to put most of it back together, but you can see it’s not quite all the way. Looking at the damage to C’s brain is an interesting medical feat. There is a neurologist who is — has a very, very high quality brain imaging beyond MRI.

And this is kind of Greek to some people, including me, but I have a blowup here. And MRIs are kind of like, they take slices this way, so it’s kind of — you’re not seeing a three-dimensional, and that’s why there’s so many of them.

So, for example, what this shows are pretty much black holes. The black holes are where the brain hemorrhages were that have permanently damaged the brain. And these, again, are scattered all through C’s brain.mBut I just wanted to pull one so you could see it. There will be more testimony on how her brain was injured from a scientific standpoint. C was in a coma for five weeks at Southwest Medical Center. She has had a very difficult course of treatment and came close to death many times.

She is, you know, a miracle, because in April they were going to put her in a, basically a, I don’t know a better word to say this, but more like a warehouse type of place where a person that’s completely non-responsive, you don’t need therapy but they’ll care for you. It’s a hospital bed where — so she’d been stabilized by this time. And I think it was the morning that she was destined to be moved, she started — it’s in the chart notes, and it’s quite remarkable, that that was one of her miracle points, and changed the course of what she’s able to do today.

This is C, this is when she has had — her skull piece is not there, so you can see that her temple is sunk in. This is her long-term boyfriend, who is still her boyfriend and fiancé, J. Because of the coma, and then how she’s been able to recuperate and what she’s left with, C is appearing in this case under her guardian, KB is here. He won’t be here during the entire trial due to his commitments because he’s a full-time guardian. He’s appointed by the court to authorize this litigation. And this — and basically, at this point, to manage every single aspect of C’s life because she did not — she was incompetent to do so, in part because of the coma, and then her severe restrictions after. So I’d like to talk about some of these injuries. These are hard to read, but we’re going to be going over them quite a bit.

Do people want to stand up while I do this?

THE COURT: Do you need to set up?

MS. KOEHLER: I just need to get it, and then set it up.

THE COURT: (To the jurors) Did you want to stand up for a second? You’re welcome to.

MS. KOEHLER: So these are the injuries that she suffered. And I’m doing it this way rather than showing you, literally this many medical records, piece by piece. So we already talked about the traumatic brain injury, which is the most severe injury. She —

THE COURT: Do you need a laser pointer?

MS. KOEHLER: No, I’m okay. This is a little bit bigger, so you could see it a little bit better. She was obviously not able to function without mechanical equipment, so she agreed, through a tracheotomy tube that was placed, and you’ll see that she did have a recurrent lung collapsing. Unfortunately she got MRSA.

She had right-sided rib fracture, she had problems with her lungs, fluid buildup in the lungs, she had — her spleen was lacerated from the collision. She had major problems with her feeding tube. To this day she has — she literally has a scar that looks about like this, maybe it’s a little taller, it’s a big — it’s very thick. Because they had to do so many operations on that feeding tube, it got infected.

She just — that was — it was almost life-threatening at times, it was very, very problematic. Peritonitis, which was the infection, she has septic shock, recurrent urinary tract infections because of the catheter injuries, and she also ended up having a blood clot. This was just a very sick gal.

So let me go to the surgeries. And this is a little bigger. These are just representatives. This is of what would generally happen. So the first procedure that was done of her brain was to put a monotron device inside of it, into it. You saw this surgery, the second surgery is one of the surgeries that you saw.

She had a chest tube surgery, she had feeding tube surgery, she had breathing tube surgery, she had another chest tube surgery because of complications. On March 11 she had the abdominal leaking and the sepsis and all that, so she had that repeated feeding tube surgery. She had to have lung intubationon March 14, she had to have it again on March 21st.

And then like I said, it’s about half a year later, September 23rd, she had the final surgery to reattach her skull piece. So these are surgical procedures, not the multiple other procedures that she had. The date of her discharge diagnosis — normally when you go to the hospital and you have a discharge diagnosis you have one or two things. As you can see, she had 14 items on her discharge diagnosis. I’m going to show you those in a minute.

This is — her day of admission was February 27th and her date of discharge, which was, as I told you, the miracle when she was able to not be discharged to be warehoused to be rehabilitated. This is a bigger version of her discharge diagnosis. So again, her admission discharge is different than your discharge diagnosis, which is why I’m going through this again. She has a traumatic brain injury, and this is their words, not mine, acute respiratory failure with tracheostomy placement and also removal, right pneumothorax with chest tube placement times two resolved.
Pulmonary contusion, the fracture of the right fifth rib, the splenic injury, grade 1. Her gastro tube placement. She had a laparotomy for the G-tube erosion with new placement of the G-tube. Spasticity, the entire left side, greatest in the hand and foot.

She had some other issues like dehydration, acute blood loss, anemia, hyperkalemia, leukocytoses, and narcotic dependence due to the pain medications they were giving her, so this was as of April 3rd, 2009.

What I’m going to show you now is a video of C taken on May 12, 2009. So this is — I need power.

All right, so this in May of 2009. I believe that this entire video is like an hour and a half, so it’s not what you’re going to be watching, you’re going to be watching, I believe it’s something like four minutes, so you might see some editing, and it’s simply because it was an hour and a half.

So this is C in rehab on May 12, 2009. Let me tell you one other thing. We’re going to have sound with this, and I’m not sure, because this is an open therapy room, you might hear therapists that are talking to C, and other people talking, so it might be a little distracting,

MS. KOEHLER: My apologies. She was discharged from the hospital on April 30, so a month and a week later in the rehab. The other woman in this film is KF , which is C’s grandmother, the blond woman.

(Video concluded.)

Visual by Duane Hoffman

Should the dead person have been allowed to tell the story

I told my kids a lot of stories when they were little.  Pictures were good and well.  But what they really liked was when I acted out the characters. 

In trial opening is the opportunity to tell the story.  There are no rules that say we need to read it and be boring.  Over the years I have ben a bus, a cross walk, and other various objects or people when I’ve told the opening story.   But look what happened in this case.  The judge was not used to having a story told with quite as much dramatic flair. 

What follows is an excerpt from my trial diary:

Trial day 3:

There’s a lot of muscling around today.

Opening statement and we’re going for the gusto.  Kevin (my law partner) starts off and he IS chrysotile – an asbestos fiber.  He does a splendid job.  He doesn’t act light hearted.  He is after all, a very dangerous and deadly fiber.  He explains how  industry has know about the danger of asbestos for over a hundred years and yet how Domco Texas decided to use it anyway.   t’s my cue and here is what happens (verbatim):

Ms. Koehler:  My name is Jim B.  And I was born in 1942 in Seattle, Washington.  My entire family lives here.  They are from here.  In 1960, I graduated from Ballard High School.  I wasn’t a perfect person, I have never been a perfect person, I would never tell you I’m a perfect person.  But I have  lived a full, full life…to a certain point.  I have been married before I married Colleen…

Ms. Loftis:  You honor, I do have an issue for the court.

The Court:  Want to state your objection?

Ms. Loftis:  Sure.  I think it is inappropriate for counsel to put herself in the place of the plaintiff, especially in light of the rules – the rulings in this court pre-trial.

The Court:  All right.  Let’s focus on what the evidence is going to show, counsel, in opening statement.

 Ms. Koehler:  Your Honor, I am –

 The Court:  Please proceed with what the evidence will show.  (stern knitted brow look)

 Ms. Koehler:  That’s fine.  Turn to the jury and start over.   There are three wives before me.  My name is Colleen—

 Ms. Loftis:  Your Honor, I think it is inappropriate for the same reason.

The Court:  Sustained.  Let’s just talk about what the evidence will show, let’s address damages.  (stern knitted brow look)

Ms. Koehler:  Yes, your Honor.  Turn to the jury and start over. Mr. B graduated from Ballard high school in 1960…

Last night when I decide to take on the dead man’s persona to tell the story, I consider whether the fact that I will be channeling a dead person will draw an objection.  I’ve previously researched this issue and there is no law that says I can’t.  This morning, Judge H tells us (right before the jury comes in), that he does not like side bars [where the judge and jury talk outside of the jury’s presence about technical issues].  Instead he likes to deal with objections for the most part in front of the jury but he will not allow speaking objections. 

What he doesn’t advise, is that he doesn’t allow anything other than the word “objection” to come from my lips.  I am terminated with a “look” in the midst of asking for a sidebar.  I am fully prepared to challenge defendant’s grounds for the objections.  But the judge’s look is unrelenting. 

So I change from the dead person.  And morph into the widow which is shot down yet again.  Finally the jury watches me morph to pure storyteller.  Is this a good or bad thing I wonder, that they can see me change personas.  Snap.  Like this. 

Afterwards – as in at 4:00 pm after the jury has been excused- the judge permits me to make a record.  I explain the “golden rule” that defense is ballyhooing about, doesn’t apply.  I didn’t put the jury in the shoes of the decedent.  I stepped into them myself.   

The court says:  “I sustained the objection because there’s a fine line between presenting the facts and arguing.  It is a fuzzy line but this court generally gives parties a great deal of leeway and in this case the court did in terms of making a lot of emotional arguments.  The court felt that by putting yourself in the first person that you crossed the line and converted an opening statement into an opening argument and that is the basis for my ruling.” 

At which point Kevin the Asbestos Fiber pipes in – so you’re fine with us using the first person in closing – to which the defendant objects and the court says he will entertain briefing on that.

Tips for attorneys – from a children’s novelist

250px-C.s.lewis3-thumb-250x362-18173We are rewarded in school for using sentences so complex, that the reader or listener is virtually tortured by them.  As grown up lawyers this means we tend to spout legalese to normal people.  How as trial lawyers do we shrug off these intellectual habits.  So we can tell a good story.

Look at these tips from C.S. Lewis (he of The Chronicles of Narnia fame).  This is taken from a letter he wrote to a young Fan in 1956.

What really matters is:–

1. Always try to use the language so as to make quite clear what you mean and make sure your sentence couldn’t mean anything else.

2. Always prefer the plain direct word to the long, vague one. Don’t implement promises, but keep them.

3. Never use abstract nouns when concrete ones will do. If you mean “More people died” don’t say “Mortality rose.”

4. In writing. Don’t use adjectives which merely tell us how you want us to feel about the thing you are describing. I mean, instead of telling us a thing was “terrible,” describe it so that we’ll be terrified. Don’t say it was “delightful”; make us say “delightful” when we’ve read the description. You see, all those words (horrifying, wonderful, hideous, exquisite) are only like saying to your readers, “Please will you do my job for me.”

5. Don’t use words too big for the subject. Don’t say “infinitely” when you mean “very”; otherwise you’ll have no word left when you want to talk about something really infinite.

This is pretty good advice.

Photo from C.S. Lewis Wikipedia

 

Take it from Kurt – 8 (no adjective needed) storytelling tips

vonn-thumb-183x248-17960The quest for the best story is front and center as we prepare for trial.  Data is all good and well.  But stories are the way to connect with real people.

These tips from Kurt Vonnegut may not be exhaustive but they ring true.  I’ve simply substituted the word “juror” for “reader”.  Here is the actual youtube list.  http://www.youtube.com/watch?v=nmVcIhnvSx8.

1.  Treat the juror’s time as a resource – do not waste it.

2.  Give the jury a character to root for.

3.  Every character should want something – even if only a glass of water.

4.  Every sentence must reveal the character or advance the action.

5.  Start as close to the end as possible.

6.  No matter how sweet and innocent your leading characters, make bad things happen to them so the jury can see what they are made of.

7.  Aim to please just one person.  If you open a window and make love to the world, your story will get pneumonia.

8.  Give the jurors as much information as possible as soon as possible.  To hell with suspence.  Jurors should have such complete understanding of what is going on, where and why, that they could finish the story themselves.

This article is derived from The Atlantic – Kurt Vonnegut’s 8 Tips on How to Wrige a Great Story by Maria Popovahttp://www.theatlantic.com/entertainment/archive/2012/04/kurt-vonneguts-8-tips-on-how-to-write-a-great-story/255401/

Photo from www.Kurtvonnegut.com

The psychic jury artist

MomSketch-001-thumb-550x273-16083

The air starts crackling.

My mom, Mary Fung,  has come to watch opening.  Her smile stretches the width of her face.  She is wearing a polyester blue and white teeny striped suit that I distinctly remember from the 1970s.  Over a blue pair of Nike shock sneakers that I used to run in.  Hair pinned up in its forever bun.  She looks fairly adorable.  Everyone in the courtroom smiles back at her.

Am thinking – uh oh.

She tells me to comb my hair.  Offers me a comb.  Remind her the hair is not able to be combed.  She starts picking at my jacket.  There are strings hanging.  She starts to dig out a pair of clippers from her purse.  Tell her this is the style.  It is meant to unravel.  She wrinkles her nose up, scowls and makes a sound that sounds like this:   ugh.   Ron (co-counsel) comes over and says, just focus on opening.  Am thinking – no way.  Have to keep eye on mom.

She begins to take cosmic readings.  Tells everyone that I don’t believe in her powers.  That doesn’t bother or stop her.

Tells our client she will heal him.  Tells the bailiff and clerk  their I.Q.s aren’t bad but she can help them improve.  To put this in perspective, she previously determined my brother’s dog Izzy had a higher I.Q. than George W. Bush.  Mine, if you must know, was quite high at birth.  Then my uncle Timmy dropped me on my head when I was two and that was that.  I’m pretty sure Izzy’s is higher than mine as well.

Her favorite thing to do in court is to sketch everyone (she’s really quite a good courtroom artist).  She then does their “readings.”  This is good because it keeps her occupied and I don’t have to worry that she’ll break out the crystal pendulum and start twirling it around.  It aids in her ability to make predictions and decisions.  Actually, probably should worry but have determined it to be a useless exercise.   The woman is incorrigible.

Judge Hill returns.  The jury files in.  She reads the preliminary instruction.  The ritualistic words wash over me.  Mind grows still and focused.  Eyes close even though they physically are open.  This is what I say to myself:

This opening is for our client.    Let me speak the right words in the right way for him.  Give me calmness of spirit to do what needs to be done.  Give me strength for him.  Let the jury see the truth.  I am nothing but a conduit.  Let me do a good job for this man.

Don’t repeat it like a mantra.  Just let it cycle through once.   Breathing slows. Can feel the air as it rests in chest.  Breathe more slowly so it can rest more deeply.  Down to the center of where it needs to be.

Judge H finishes and says – please turn your attention to Ms. Koehler.

Walk back out, face the jury, and let it Flow.

After openings are over, check on mom.  She has made drawings of everyone.  There are mathematical calculations and little notes by all of their faces.  Instead of a jury consultant, we have a jury psychic.  She has to leave to babysit for my little sister.  She’ll share her findings with me later.

Walk her out to the hall.  Kiss her goodbye.  She says she is proud and gets a little tearful.  Am truly touched.  Watch the little polyester suit walk to the elevator.  Go back in.

Drawing:  Clark v. State jury by Mary Fung Koehler.

Note:  This is an excerpt from my trial diary day 2 Oct. 2011.


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.
Favorite Quotations

If you talk to a man in a language he understands, that goes to his head. If you talk to him in his language, that goes to his heart.
— Nelson Mandela


Be still when you have nothing to say; when genuine passion moves you, say what you've to say, and say it hot.
— D. H. Lawrence


Why slap them on the wrist with a feather when you can belt them over the head with a sledgehammer.
— Katharine Hepburn


Truth, when not sought after, rarely comes to light.
— Oliver Wendell Holmes, Sr.


Hold fast to dreams For if dreams die Life is a broken-winged bird That cannot fly.
— Langston Hughes


There is no charm equal to tenderness of heart.
— Jane Austen


Words have no power to impress the mind without the exquisite horror of their reality. — Edgar Allan Poe


If you just set out to be liked, you would be prepared to compromise on anything, wouldn't you, at any time? And you would achieve nothing! — Margaret Thatcher


Be who you are and say what you feel because those who mind don’t matter and those who matter don’t mind.
— Dr. Suess


Be sure you put your feet in the right place, then stand firm.
— Abraham Lincoln


If you are neutral in situations of injustice, you have chosen the side of the oppressor. — Desmond Tutu


True eloquence consists in saying all that is required and only what is required. — La Rochefoucauld


No act of kindness, no matter how small, is ever wasted. — Aesop


The thing you fear most has no power. Your fear of it is what has the power. Facing the truth really will set you free. — Oprah Winfrey


If you're not failing every now and again, it's a sign you're not doing anything very innovative. — Woody Allen


The soul never thinks without a picture. — Aristotle


To thine own self be true, and it must follow, as the night the day, thou canst not then be false to any man. — William Shakespeare


Float like a butterfly, sting like a bee. — Muhammad Ali


Intelligence is the ability to adapt to change. — Stephen Hawking


It is better to have less thunder in the mouth and more lightning in the hand. — Apache proverb


People take different roads seeking fulfillment and happiness. Just because they're not on your road doesn't mean they've gotten lost. — Dalai Lama


How wonderful it is that nobody need wait a single moment before starting to improve the world.
— Anne Frank


Learn to laugh; it is a discipline to be mastered. Let go of the everlasting burden of always needing to sound profound. — Richard J. Foster


Imagination is more important than knowledge. Knowledge is limited. Imagination encircles the world. — Albert Einstein


Believe, when you are most unhappy, that there is something for you to do in the world. So long as you can sweeten another’s pain, life is not in vain. — Helen Keller


Remember that lost time does not return. — Thomas á Kempis


If thou faint in the day of adversity thy strength is small. — Proverbs 24:10


Everybody gets so much information all day long that they lose their common sense. — Gertrude Stein


It is harder to crack a prejudice than an atom. — Albert Einstein


The right of trial by jury shall be preserved. — 7th Amendment of the U.S. Constitution


I'd rather die on my feet than live on my knees. — Ludacris


And the trouble is, if you don't risk anything, you risk even more.
— Erica Jong


Words are chameleons, which reflect the color of their environment. — Judge Learned Hand


You may shoot me with your words, You may cut me with your eyes, You may kill me with your hatefullness, But still, like air, I'll rise. — Maya Angelou


The moment that justice must be paid for by the victim of injustice it becomes itself injustice. — Benjamin Tucker


He who keeps his eye on results cannot give himself wholeheartedly to his task, however simple or complex that task may be. — Howard Thurman


An eye for an eye makes the whole world blind. — Mahatma Ghandi


Life is painting a picture, not doing a sum. — Oliver Wendell Holmes Jr


The truth does not change according to our ability to stomach it emotionally. — Flannery O'Connor


We must adjust to changing times and still hold to unchanging principles. — Jimmy Carter


To be rooted is perhaps the most important and least recognized need of the human soul. — Simone Weil


It is not the level of prosperity that makes for happiness but the kinship of heart to heart and the way we look at the world. — Alexander Solzhenitsyn


It is high time that the ideal of success should be replaced by the ideal of service. — Albert Einstein


The opposite of love is not hate, it’s indifference. The opposite of art is not ugliness, it’s indifference. And the opposite of life is not death, it’s indifference. — Elie Wiesel


I don’t know the key to success, but the key to failure is trying to please everybody. — Bill Cosby


The time is always right to do what is right. — Martin Luther King Jr.


I had rather attempt something great and fail, than to attempt nothing at all and succeed. — Robert Schuller


It is very easy to break down something. You can take a stone and throw it through that window; that is easy. Try fixing it, and that takes longer. It takes longer to help someone who has been broken. That’s the work you’re doing. — Desmond Tutu


How we spend our days is, of course, how we spend our lives. — Annie Dillard


Mine honor is my life; both grow in one; Take honor from me, and my life is done. — William Shakespeare


To straighten the crooked you must first do a harder thing – straighten yourself. — Buddha


A thought is an idea in transit. — Pythagoras


Fall seven times, stand up eight. — Old Japanese proverb


No generalization is wholly true, not even this one. — Oliver Wendell Holmes Jr.


Of what use is eloquence? He who engages in fluency of words to control men often finds himself hated by them. — Confucius


There is a vitality, a life-force, an energy, a quickening that is translated through you into action and because there is only one of you in all of time, this expression is unique. — Martha Graham