The story of the cutest worst hotel and a sample product liability complaint


Speak in Sun Valley at Idaho Trial Lawyer Convention in the morning.  Then on a panel in the afternoon. Leave at 3:30.   This means I cannot fly direct to LAX because that plane is gone.  Instead have to fly back to Seattle to then fly to LAX.  Arrive at 10:45 p.m.  Taxi to The Line Hotel.  Arrive at 11:30 p.m.

There’s a reason for the name of this hotel.  There is a line wrapped around it.  Slide through crowd of young people.  Hotel lobby is pitch dark and throbbing with people and music.  I don’t mean the club area to the side of the building.  Or the bar past the front desk.   I mean the actual lobby.  As soon as I walk inside am surround by clubbers.  Which if I hadn’t gotten off an airplane I might have been more pleased with.  But I am a grump.

Wait for front desk to check a woman’s purse so she can dance unencumbered. They give her a bag tag.  My turn finally.  Pretend smile.  Check in process occurs via sign language and reading each other’s lips.  It is too loud to speak.  Go up to 5th floor.  Open door.  Very hip.  Stripped to concrete walls.  Lots of outlets for electronics.  Low slung furniture. Bathroom vanity hits me mid thigh.  Really tall people would have to bend over double to turn on the faucet.   I am 20 years too old for this hotel.  Okay.  Maybe 30. Ceiling to floor window fronts Wilshire Blvd.  The main street.  Look outside.  Can see and hear everyone in the line and every car cruising the strip.   There is also a joint in the road that makes an extra special crunch sound every time a car passes over.

Consider going downstairs to change rooms.  But am too irritated.  The cacophony of sound bounces off the unforgiving gray cell walls.  I look up the white noise station on Pandora.   Waterfall.  No.  Rainforest.  No.  Settle on Springtime showers.   Turn it on via little portable speaker.  It can’t drown anything out.  Pull out  iPhone ear buds.  That doesn’t work.  Pull out running ear buds that fit a little tighter.  That doesn’t work.  Turn up the white noise.  Hello.  Loud white noise is not white noise – it is just noise.   This means that I stay up the entire night.  The party road does tone down around 4 or so in the morning.  But by then I’ve given up.   They are going to get a bad review on Trip Advisor.

Next morning walk from the hotel to Southwestern Law School.  7 blocks away.  It is already 75 degrees.  The school is in a magnificent art deco building.  Take the elevator up.  Am speaking to the National Police Accountability Project.  Spend a delightful three hour morning presenting on voir dire, opening and case themes.  Afterwards one of the attendees asks for a sample complaint.  I write complaints like opening statements.  Filled with details and structured the way that makes the most sense to me.  So here it is.   Complaint FINAL

Photo:  At Southwestern Law School getting ready to speak to NPAP

Clare Vellek


This week we celebrated Clare’s 30 years of service to the Washington State Association for Justice.  I met Clare when it was named WSTLA – the trial lawyer’s association.  The entire time I’ve known her she’s run the legal education department.

Of all the committees I’ve worked on over the years, WSTLA/WSAJ CLE was my favorite.

One of the side effects of being a critical analytical trial lawyer, is that we are willing to turn the lens on ourselves.  We are like professional athletes in that we are only as good as the last trial or arbitration or mediation or whatever.  We can have a superb result.  Feel the glow.  And abruptly lose the next case and consider ourselves to be crap.  So we are hungry to learn how to be better.  Clare has worked with all of us to put on some of the best programs in the country.  This included the first How to Hammer Allstate program (brainchild of Pat LePley).   I can still remember the Colossus program where we had with over 300 people attending.  We were one of the first to have a full day with Paul Luvera, Rick Friedman, and Paul Stritmatter. And then of course there were the conventions.

Gerhard figured out that Clare has put on over 500 seminars.  And she isn’t done yet.

What always has impressed me about Clare – is that she never loses her temper.  Us lawyers are terrible at turning in our assignments on time.  She would fib to us about deadlines knowing we’d be late.  And even that wouldn’t work.  People would forget when they were speaking.  Or where.  Or in probably the worst case – the keynote speaker at one of our conventions showed up and left after an hour and a half when she had been scheduled for four hours.  Through it all, Clare just smiles and gets it done.

Here’s to you Clare – thank you for 30 wonderful years and many more to come.

Photo:  Clare at her surprise 30th work anniversary luncheon next to Gerhard.

Teaching Voir Dire with Bill Bailey and a little help from Trader Joes




Taught trial advocacy for many years at UW School of Law with dear friend Bill Bailey.  Bill is now a full time professor at the school.  Since teaching without him would not be the same, decided to turn in adjunct badge.  However, today am going to the school to teach voir dire.

After factoring everything that could go wrong with traffic, arrive 30 minutes early.  Make a quick pit stop at  Trader Joes.  Scan the aisles and choose: 1) bag of mandarin oranges; 2) container of cookie butter chocolates; and 3) small bags of mixed nuts and dried fruit.  These are the secret ingredients.

Start class off.  Ask question.  Student answers.  Reward follows.  Chooses chocolate.  Throw one at him and he catches it.  Next person volunteers.  Chooses nuts. Toss it over and miss target.  Someone retrieves it for her.  And so on.  Needless to say, class participation is superb. 

During this event,  Bill is taking notes. 

Here they are:


From: Bill Bailey

Date: January 13, 2015 4:49:20 PM PST

To: Trial Advocacy adjunct professors

Subject: The Monday Class Report-Voir Dire Training With Karen Koehler


Dear Faculty, In keeping with my New Year’s resolution, I want to fill you in on the Monday class, which was a huge success, with great energy and participation by the students. Karen Koehler is a remarkable trial advocacy teacher who I was most fortunate to be paired with for a number of years here at UW. Her spontaneity, creativity and intuitive grasp make her uniquely suited to help students understand and perform one of the most feared parts of a trial

Karen broke the session into two parts, first talking about trust and communication in the courtroom and “us” (lawyers) versus “them” (jurors). Then we adjourned to the mock courtroom “set” in 138 Gates. The students filled the jury box and the first two center rows of 138. One by one, they took turns asking the panel about attitudes and issues pertinent to the Constantine case.

Prior to adjourning to the courtroom “set,” Karen asked for a show of hands, which class members considered themselves extroverts and which were on the introvert side. It was about evenly split. She went on to say that most lawyers are not the brash extroverts that the public thinks we are.

Then she asked for a show of hands on who was the kind that others confided secrets in during adolescence. About 5 students raised their hands. She asked them why they thought others trusted them. The replies varied. “”I am a good listener.” “I care about people.” “I could be trusted to keep a secret.”  “I am calm and rational.”

Her provocative question that followed was, “If you weren’t one of those people that others trusted then, what are the odds of shifting into that now?” One student had a very good answer to this, “High school was a strange time. I have matured a great deal since then, much more comfortable with myself.”

Karen then focused on the core challenge of voir dire: “How do you get information out of people in a courtroom on who is going to be biased against your clients?” She used the term “lawbotomy” to describe the biggest issue for lawyers. “We learn to speak in measured sentences full of the jargon we learned in law school. This separates us from real people.” Karen laid out the consequence. “It turns voir dire into us versus them. You have to figure out how to be real. You want to be on the side of the jury, not on the other side with the lawyers.”

She made some general remarks on how to approach voir dire successfully. “First impressions are formed quickly. The jury weighs everything coming out of your mouth. You want to set a tone that goes beneath the surface and gets things going. It has to be a dialog, not information collecting. Safe, not judgmental.

Your questions should be based on whatever the last answer from a panel member is, trying to keep it going. If you read questions from a script, you will get scripted answers. This needs to be a human interchange. Make your questions to the panel small, short and simple. Dial down, trying to explore an issue. React with real human expression. But never judge people based on their answers, always thanking them for their candor.

You work the panel like a talk show host, getting them aligned. Deal with issues in groups. “How many agree with that?” “Why?” “Who has an opposite view?”  You don’t want to be seen as just a data collector that is just trying to kick some of them off.

Karen’s view is that for many lawyers, voir dire is a time of stalling and giving empty platitudes, thanking the panel for their service, trying to curry favo. “Jurors want you to get into it. Hit the go button.”

She exhorted the students to be like the “normal, regular people they were before they went to law school.  Act like a real person. Just do it! Get in and be real.” She asked them, “How does a real person stand? What kind of acknowledgement or eye contact do they make? How do they hold their hands. How often do they smile?”

We then got into the voir dire process itself, with each student going about 2 minutes and then getting feedback from all of us. The liability areas touched on in the questioning were all very pertinent to the Constantine case, e.g., How do you feel about bicyclists on city streets? How many of you get irritated when you see them darting in and out of traffic? Who rides a bicycle regularly? How comfortable do you feel in traffic with cars? Who uses their cell phone while driving? How safe do you think this is? Who has ever rented a car in an unfamiliar city? Did it take you time to get used to the rental car? How do you navigate in an unfamiliar city? Who has ever used a crosswalk in downtown Seattle? Do you always look both ways? Are you concerned about being hit when you cross? Who ever has had a near miss as a pedestrian, when a car didn’t see you?” How careful are drivers in stopping for pedestrians? Who has ever motioned a pedestrian across a street when driving? How many of you consider yourselves safe drivers? How did you learn? Who taught you?”

Then we shifted to damages questions. How many of you have gone to college? How many of you changed your majors? How many times? Did anybody take time off during college or afterward? Has anyone ever lost a family member or close friend to trauma? How did that affect you? Did it change your daily life? How do you feel about awarding 4 for loss of life.”

In her feedback, Karen constantly urged the students to be themselves, “Know who you are and what makes you special. That’s what you go with in the courtroom. Be authentic.”
She also reminded them that “the purpose of voir dire is not just to get people off the jury. You are building trust. The trust relationship is the single biggest thing.”

The students were totally engaged in this, It was thrilling to see them put themselves out there for the sake of personal and professional growth. Karen created a climate in the classroom where they felt totally safe to explore the unknown.

Photo:  Nala and I on a picnic table at Lake Wenatchee state park.  Right before we jumped off.


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


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.



The bad student: a story from when I used to teach piano



I started teaching piano as a sophomore in high school.  By then, I was going on my seventh year of piano.  Vy Husted, my own teacher, acted as my supervisor.  And I went through a training program.  My parents let me turn part of our rec room into a classroom.  Two pianos and a double sided chalkboard.  This was no joke.

The first year I had a small class.  They had one lesson with their partner.  And one lesson with the entire group.  Each week.

My students were for the most part conscientious.  They wanted to learn to play the piano.  Predictably there was one bad student.

He wasn’t disruptive or rude.  He could have learned to piano if he had wanted to.  But he wanted to be kicking or hitting a ball around outside.  He slouched on his seat.  Never practiced.  And tried to fake his way through the lessons.

My first inclination was to wonder what I was doing wrong.  Why couldn’t I motivate him.  Eventually I stopped taking this so personally.  The kid just didn’t want to be there.  So his parents and I had a talk.  And we all said goodbye.

Years later, I reconnected with him.

Blake Kremer is mainly a criminal defense lawyer, but also handles personal injury cases.  He’s running for the WSBA Board of Governor’s 6th district position.

Blake does a lot of pro bono work.  This is my favorite example:

From the time I was a high school student I had a private ambition that I would someday be a lawyer fighting for a peace activist like Sister Anne Montgomery. Sister Anne taught troubled youths at the Street Academy of Albany, travelled internationally with Christian Peacemakers, and brought attention to nuclear weapons through her work with the Plowshares movement. When she and Father Bill Bichsel and several others broke in to Kitsap Naval Base in 2009 to bring attention to the stockpile of weapons there, I served as her team’s attorney, eventually joined by several others for their trial in Federal Court in Tacoma. That is when I began working with Ramsey Clark, a former US Attorney General and now peace activist. I have continued to represent peace activists on a pro bono basis, and occasionally meet with activists at local churches to discuss constitutional rights and arrest procedures.

I hope you vote  between now and May 14, for this bad piano student turned true believer in the power of justice lawyer.  Here is Blake’s website:  www.kremerlaw.com .

Photo:  Carbon copy of a receipt directed to the bad student’s dad.  Note the mispelling of Mr. Kremer’s last name.


Tale of the ski bunny: why copying your mentor doesn’t always work



We are up at the mountain.  John, my then husband, his best friend Dale, and me.  Our mission – teach John to ski.  He is a basketball player. This means skiing has not been encouraged over the years by his coaches. 

After finding gear that actually fits, we mosy on over to the base of the lift.  Dale and I are shouting out instructions and words of encouragement. 

Predictably, not long into it, John topples over.

I say – just flip your leg over, keep your ski tips pointed slightly up and parrallel and then using your poles just pull yourself up.

He can’t.

I get down on the snow next to him, do the manuever and pop up.  See, do it just like that, I say.

He can’t.

Over and over this pattern goes.   Dale by now has left the scene (traitor). 

John is starting to sweat and finally tells me to go away and leave him alone.

I ski off in a huff.  From the lift watch him take his skis off, stand up and put them back on. 

As you can see  by the picture, I had been skiing pretty much as long as I’d been walking.  I was experienced and had good technique.  I was not just giving verbal instructions, but got down and demonstrated.  Multiple times.  And John was extremely athletic.  So what was the problem.

Well, for starters on a good day, I was almost 5’4.  And John was 6’8.

Among other things, my skiis and poles were two feet shorter.

Here’s the point.

We humans learn through emulation.  We identify someone who has a skillset we admire.  And then we try to follow their example.

The trial lawyer culture is premised on this learning model.

But at the end of the day, imitation will only get you so far.

Photo:  Baby Karen in heart ski suit, no gloves, wooden skis with interesting straps and apparently, snow boots.

On liking and empowering your own voice


Listening to my own voice used to pain me.  I avoided it.  Couldn’t stand it.  It seemed too high. Too sweet.  And if I didn’t remember to tuck my tongue in, there was a lisp.  Oh, how much I yearned for a deep booming voice.  So I could preach when I spoke.  Like M.L.K.

I started playing piano at the age of seven.  Kept at it through high school.  By the end, I typically practiced two to three hours a day.  My fingers could fly.  At times I dreamed of becoming a professional pianist.  Then reality would intrude.  You see, my hands were too small.  I could reach an octave.  Beyond that, I had to roll the chords.  I was good.  But could never truly be exceptional.

This was my fear as a young attorney.  That my feminine voice, like my small hands, would doom me in the quest to be the best trial lawyer that I could possibly be.

This insecurity was the by product of trying unsuccessfully to emulate male trial lawyer role models and icons.  Eventually I gave up on all of that.  Thank heavens!

Fast forward (a few decades)…

The voice that I worried about so much, is now a trusted and worthy friend.

Judy Shahn teaches a female trial advocacy class with me.  This video clip is of Judy in class this past weekend.

Video:  http://www.youtube.com/watch?v=7Rlgp7388iU&feature=youtu.be

The 4 lamest words used to conduct direct exam of a fact witness



Drive up to the gate.  Pay $15 for a parking pass.  Drive 100 feet forward and turn left.  Find a space and park.  Am barefoot.  Slip on shoes.  Exit car.  Walk around the side of the building.  Open the doors.  Am now inside the UW school of law.    Head down the hallway to room 138.  Open the door.  It’s a big theater styled space.  Walk down the stairs to the front.  Give Bill Bailey a hug.  He’s a full time professor there for now.  This is the big lecture class for the trial advocacy program.

Students wander in.  Set up their laptops.

For the next hour Bill and I scare them witless. We undo their preconceived ideas about what direct exam should look like.

Me:  Getting the exhibits in – that’s worrisome for a student/new attorney.  Making sure the outline contains all the necessary questions – that’s doable with preparation.   You are all smart.  You are all in law school.  So you will know all the little bits and pieces you need to get in.  That isn’t the tough part.

Students:  Uhhhhh. Blank faces.

Me:  There are four words that we use when conducting direct of a fact witness.  They are lazy, passive, unexciting words.  You will find yourselves using them in court.  Perhaps even for years.  One day, you will remember we talked about this in class.  And maybe be able to change this pattern.

Students:  Look at me like a jury during  the first few minutes of voir dire when you can’t read anything about them.  Except their lack of connection with you.

Me:  Direct exam isn’t about just getting the evidence “in.”  It isn’t solely an exercise in data entry.  The jury will tune out if you don’t hook their attention.  And they will rule against your client unless they can see that your side is correct.    It isn’t up to the witnesses to do all this on their own.  It is your job.

  • If you heavily prepare your witness in advance with a memorized script – guess how believable that testimony will be at trial.
  • If you just lay everything out in a linear, logical, fastidious, monotonous fashion – guess how many jurors will still be listening to the testimony after three minutes.
  • If you have witnesses testify about lists of information without adding any color, warmth, humanity or context – guess how impactful that testimony will be.
  • If you take on a passive role and expect the witness to win over the jury every time – guess how often that will happen.

Bill and I engage the students.  We role play, practice asking provocative questions, talk in present tense, use diagrams, and act out stories.

Some of the students are now relaxed, smiling and engaged.  Though I can’t quite turn the gentleman in the tie and lilac shirt seated in the front row who quite clearly suspects I’m bonkers.

Hug Bill goodbye.  Walk up the stairs.  Back down the hall.  Out through the doors.  Around the side of the building.  Hop into car.  Take off shoes.  Drive to gate.  Give secret code.  Get $15 back.

Post script:  So what are the ten lamest words used to conduct direct exam;  “And then what happened…”

Photo:  A chiropractor showing the jury the proper way the plaintiff needs to lift to protect his back while working in construction.  Problem is he has a knee injury too.  So now the jury can see the dilemma.

The last class


The teams are putting on the final trial.  It is our last class of the year.  The seventh year Bill Bailey and I have taught trial advocacy together at the UW.  (He’s a professor on staff now in the law school)

Rush around all day doing our regular lawyer stuff.  Inch along thru rush hour traffic to get to the school by 5:30.  Stomachs often rumbling.  Sometimes choke down a power bar.

Then for two hours Bill and I are transported by our students.  And we always get back more than we give.

Photo:  The final two teams prepare to go at it.

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