Trial Tips for Attorneys
Judges don’t like it when us attorneys can’t stop bickering. They are irritated by having to deal with our exchanges of snipes, digs and downright insults.
Last month after a trial ended, two jurors followed me down to the courthouse lobby. They wanted to talk about what happened. Both commented on how impressed they were that the attorneys acted in a civil manner. Sure we disagreed with each other and objected and there were tense moments. But we were not overly disrespectful like the lawyers they saw on television. They appreciated that. I thought this was an interesting comment because I could not stand the lead defense attorney. Every time he opened his mouth I could feel my teeth clench.
I’m not saying we shouldn’t fight when we need to. Our job as lawyers is not to make a judge happy. But there is merit to the old proverb that we should pick our battles wisely.
Here are some strategies on how to avoid being drawn into petty fights before judge or jury:
- Learn how to maintain a calm yoga like façade
- Master the art of not rolling eyes
- Bite tongue
- Be physically still – don’t ruffle papers, drum with pen, or slam iPad on table
- Don’t use counsel’s first name
- Slow down when speaking
- Slow down when breathing
- Do not interrupt
- Don’t try to defend everything
- Don’t try to justify everything
- Have faith in the truth
- Wait your turn
- When the other side takes your turn wait for your next turn
- You don’t need to be overly polite
- Don’t be rude
- Be respectful even when wronged
- Carefully limit and pick your fighting moments and then maximize them
- If you hear yourself whining: “but your honor” over and over again – stop it.
- When you lose your temper and start fighting anyway – forgive yourself and move on
Photo: South Lake Union totem
Title: Keep your head to the sky. By Maurice White 1973
Trial day 1:
Instead of doing her usual acrobatic routine, Nala is curled up around my feet. On the little rug in front of the sink. I glance up at the little crystal clock on the shelf. It says 6:10 which means it is 7:10 since the clocks sprang forward Sunday. Haven’t changed it yet. The mental math keeps me sharp. Or so I tell myself.
On goes the regulation black. Black jacket. Black tights. Black boots. Black skirt with little ruffles. The only color is a non-color on the shirt. Flesh toned I guess, in a shade several tones lighter than I. With rouching and gathering to soften the severity. Of my black hair.
I leave my rings on the little metal hand stand next to the orchid on the counter. There are only two of them. One is a pretty piece of jade from an antique shop on Royale Street in New Orleans. The other is my best friend pinky ring. Shellie and I have matching ones. We do pinkie finger shakes wearing those rings. I always wear them. But not for this trial. Because my right hand is covered with a big band aid. The story involves E.J. my six year old nephew and Nala, but that can be told another day.
After dropping Nala off at doggie day care, get on the freeway. Head to Everett. This will take 45 minutes. Plenty of time to practice opening. Or conceptualize voir dire. Maybe review testimony of the first witness. After all, Steve Hay asked me to try this UIM case not quite a month ago.
It is raining. Gray. Too quiet in the car to listen to these thoughts. So turn on The Appeal by John Grisham. The narrator is real good. Am transported to Mississippi.
Park. Ride up the elevator. Walk a few steps across the courtyard to the entrance. There are no security lines around the ugly courthouse. Sorry if you’re from Everett. But that courthouse is about the ugliest thing have ever seen.
Make it to presiding and the court has just read our name. Don’t care, because Steve (Hay) is covering this. He waves at me. We get assigned out within five minutes. I get up before I even sit down and we head up to the fifth floor dept. 12.
Now there is a reason why I’ve just spent so long telling you about trial day 1. When we aren’t even in the courtroom yet. You’ll see soon.
We get there and our judge is Marybeth Dingledy. (pronounced Deengel ‘ die) What a fantastic name. She is very direct, prompt, makes sound rulings on the motions in limine, has a twinkle in her eye. That’s all good.
So what is the problem.
Well, the Allstate attorney Jodi Held, says that she won’t agree to simply calling a panel of 29 prospective jurors. She’s worried there could be bias against Allstate, so she wants 35. Problem is there are only 29. We need to wait to see if any jurors are going to be released from the other voir dire panels around the ugly courthouse.
So we wait.
Come back and wait.
Until finally at 2:30 pm Jodi cries uncle and agrees to go with whatever number there is.
Which turns out to be 31.
And then we wait for them to be brought up.
And for the judge to swear them in and do preliminary instruction and voir dire.
Which means that by the time I start voir dire – it is ten minutes until 4:00 p.m.
Can you imagine how upset those jurors must be. I see a lot of lips turned down Mr. and Ms. grumpy pants. And don’t blame that all. 29 of 31 have been sitting in the jury room all day long. Waiting on us.
Oh, this is going to not go well at all.
I put on a smile and start in.
Have you ever been to a comedy show where the audience doesn’t laugh. Or at a music concert where instead of people loudly clapping for an encore, they just leave. Or at a legal education seminar where people are reading the news on their computers and texting on their phones.
Well, that’s what it feels like when you start voir dire at 4:00 in the afternoon of a jury that’s been waiting for six and a half hours to start.
In the words of Winston Churchill which I keep quoting to my children. “Never. Never. Never give up.” So smile. Push forward. And complete the first 20 minute round of voir dire. By the end these folks are loosening up. Talking and shaking their heads yes and no. Sometimes smiling. They are getting into it.
Then Jody stands up. And starts to give a closing argument in the guise of voir dire. Which is not really even in a guise at all. She asks a series of questions which requires everyone to nod yes. She doesn’t have them say or explain anything. She just wants them to agree with her. Does this ever really work. This technique of pseudo-brainwashing. Well, maybe. But not today.
Do you agree Allstate should investigate and look at all the facts and circumstances before they pay a claim. Yes they nod.
They may not be getting anything out of this. But she is. Her voice is getting stronger. She’s becoming impassioned. Says: Allstate has a right to look into the…
And at that point, I interrupt and lob an objection. Sweetly. Which the court overrules. Graciously.
Rick Friedman would be sighing and telling me Karen Karen Karen. What have I told you about objecting so much.
Am unrepentant. It needed to be done.
Jody is thrown off. Actually she probably comes out of her trance and realizes, the jury is just about totally asleep. It is now 4:20. She’s gone 10 minutes. She calls a sidebar and offers to end her round of voir dire early. Says the jury is flat. Well, no duh they’re flat. I’m about asleep myself.
So we end the day
My Updated Voir Dire List
- Make sure you know the judge’s special protocol
- Stand and face the panel
- Don’t try to ingratiate yourself with the panel
- Own the courtroom floor, don’t stand still, don’t pace frantically either
- Don’t clasp your hands behind your back or in front and keep them out of your pockets
- Make sure every juror in the room can hear and see you
- Maintain proper interpersonal distance, don’t stand too far away, don’t get too close
- Don’t think of it as rocket science, think of it as chit chat…organized, focused chit chat
- Pay attention to body language – yours and theirs
- Don’t read questions
- Create a list of topics but don’t try to follow an exact outline
- Don’t try to control the panel
- Give to get
- Don’t write down answers (there’s not enough time)
- Have a staff member take notes for you if needed – don’t ask your client to help
- Make eye contact with everyone, somehow, and don’t look like an FBI agent while you’re doing so
- Invite the jurors to join the group discussion
- Be animated, friendly, engaging, interested, open, genuine
- If you feel phony guess what…
- Listen to the person who is speaking
- Listen to their body language
- Listen to the aura of the entire panel
- Listen to everything you don’t want to hear
- Don’t spend too much time talking to a few jurors
- If any of the jurors are monopolizing the conversation feel free to gently tell them you would like to give others a chance to speak
- Make sure everyone says something
- Stop talking so much – the jurors are the ones we’re interested in hearing from
- Show that you care
- Smile with genuine interest and friendliness
- Stop frowning
- Don’t try to ingratiate yourselfGive tidbits of information about the case, but don’t make an opening statement – the jurors will see right through you and the judge won’t be too happy either
- Don’t be judgmental
- Thank jurors when they dig deep to give hard answers
- Make the court room feel like a safe place for the jurors to speak
- Don’t think you can build credibility by saying the right things
- The jurors won’t be focused on figuring out what you think but in forming impressions on what you do
- Proactively transition between jurors instead of reactively jumping around
- Be polite and respectful to everyone always
- Don’t roll your eyes and huff and moan when it is the defense lawyers turn
- What you do when the defense lawyer is having a turn, is just as important as what happens when you are having yours
- Don’t talk with your client and act like they are having a roll in choosing the jury
- Don’t call a juror by their first name, instead use Mr, Ms, or Juror # blank
- Relax your face muscles and let them speak too
- If the jurors are answering “yes” and “no” then wake up and smell the coffee – you’re doing it wrong
- Don’t point at them
- Keep track of the responses somehow and highlight problem or question mark jurors after each round
- Don’t look scared even if you are, but it’s fine to admit to being nervous
- Embrace the cliché – honey works better than vinegar
Photo: Cristina and I at Southbeach in Miami during a break at the AAJ Midwinter Convention last month. Note the shadow from the selfie stick.
Pick up mom from Shoreline. It is 58 degrees out and she is in a faux fur black maxi coat with brass buttons. She bought it for $25. Half off at the consignment store. Brand new from Sears.
Take her to late lunch at Din Tai Fung University Village. Hour and a half wait. Meet up with my brother Greg and his wife Laurie. We say forget it. Go to Boom Noodle. Eat lunch. Not as good as Din Tai Fung but quicker. Greg and Laurie take Nala for doggie sitting play date. I drive with mom to the movie theater at The Landing in Renton. My sister Jenny pulls up. Out jump her boys Ben and EJ. We eat popcorn and watch Paddington Bear. Quite delightful.
Movie ends. Jenny retrieves the young ones. Take mom back first to get Nala then back to Shoreline. It is a bit of a haul. She talks nonstop. Her memory has been returning.
MFK: You know when I was in the Bureau of Mines (she was a chemical engineer), I was third in command in case someone had to push “the” button.
MFK: Yep. At one point, everyone got a promotion. I was waiting for mine. I was seven months pregnant with you. Boss said – well, you’ve got me over the barrel. If I give you a promotion (and raise) how do I know you’ll even come back. I said – if you don’t give me a promotion and a raise I will leave right now. I wasn’t going to let him get away with treating me like that. Just because I was a woman and it was 1960. Not to mention the Chinese part. The next day he gave me a promotion and a raise.
K3: Smile. (No response necessary).
MFK: His name was Ken K__ K___. That’s when I decided if he could live with those initials then so could you. (Laughing raucously). Anyway you’re just K cubed.
K3: (Thinking, ah so there was a scientific reason beyond all of this). That’s real nice mom.
MFK: So the next day he gave me the raise. I had you. And then a year later we left for Europe (for your dad’s post-doctoral program in Zurich).
Photo: Mom (Mary Fung Koehler) and I in Switzerland
Motion to permit Skype testimony at trial: newMtoallowSkype
Children may be scared to testify in a trial. But being on a witness stand can also be empowering for them. They are having their day in court. They are participating in an integral part of our country’s foundational structure. They are helping the process of determining the truth.
In this case, the trial judge does an excellent job of ensuring that the child feels safe and is as comfortable as possible. Ellie the courthouse dog is brought in by a prosecutor. When the child’s name is called, he walks up to the stand with Ellie. She lays at his feet. And when the child becomes a little anxious, a timeout is taken so he can pet her.
We are calling the child in this wrongful death case. He is an only child. His father was a single custodial parent. We will not have him on the stand for long. But the jury needs to see who will be effected by their ultimate verdict. Our goal is to get them to truly see this young boy.
The child testifies haltingly at first. The questions are gentle and benign. One after the other. Moving along. Not letting silences linger. Eventually he relaxes, opens up, gets a little anxious, pets Ellie, and wins our hearts. Here is his testimony:
6 THE COURT: Are you P?
7 THE WITNESS: Yes.
8 THE COURT: Hi, I am Judge Middaugh.
9 THE WITNESS: Nice to meet you.
10 THE COURT: Nice to meet you too. Look
11 who you have got over there. I am so jealous, is that
12 just the most fabulous dog? She is a cutie. So I’m
13 going to let the jury know that there is the dog in
14 the courtroom just to be here with P, just in
15 case we have a jury that’s afraid of dogs. Because
16 that happens sometimes. So just to let them know that
17 there will be a dog here with P. So Gabby, if
18 you would not mind telling the jury that P is
19 here and he has the courthouse dog with him.
20 Okay. And we can get the jury.
21 (In Court/Jury In)
22 THE BAILIFF: Please rise for the jury.
23 THE COURT: Okay, have a seat. So ladies
24 and gentlemen of the jury, as Gabby told you, we have
25 this young gentleman who is going to be testifying
1 today. And we have with him, we call her the
2 courthouse dog, but she actually belongs to this woman
3 who works in the courthouse. And the dog’s name is
4 Ellie. Right? And Ellie sometimes comes and helps
5 out when we have children testify. And I will tell
6 you honestly, I try to get her up here as much as
7 possible. So if you want to look at Ellie, you can
8 stand up and take a look, she is right there.
9 Otherwise she is very quiet and she just hangs out.
11 So P, how old are you?
12 THE WITNESS: 10.
13 THE COURT: All right. Do you know what
14 the difference is between the truth and a lie?
15 THE WITNESS: Yeah.
16 THE COURT: What’s the difference?
17 THE WITNESS: Well, the truth is when you
18 are telling, you know, that’s, that’s not made up.
19 THE COURT: All right.
20 THE WITNESS: And a lie is something that
21 you just made up.
22 THE COURT: Okay. And do you know why you
23 are here today?
24 THE WITNESS: To —
25 THE COURT: You are going to testify, talk
1 in court, right?
2 THE WITNESS: Yeah. About my dad.
3 THE COURT: Yes.
4 THE WITNESS: (Inaudible).
5 THE COURT: Okay. And when you are in
6 court or do you tell the truth or is it okay to lie?
7 THE WITNESS: Tell the truth.
8 THE COURT: Okay. So I will ask you
9 today, do you promise to tell the truth today? What
10 are you going to say, do you promise to tell the
12 THE WITNESS: I promise to tell the truth.
13 THE COURT: Okay. If during sometimes
14 when questions are asked if you don’t understand the
15 question, will you promise me that you will ask the
16 lawyers to say the question again in a different way
17 so you understand it?
18 THE WITNESS: Yes.
19 THE COURT: Okay. All right. Then I will
20 take that as having sworn the witness in. And the
21 first thing you are going to do is you need to state
22 your name, your full name, for the record?
23 THE WITNESS: My name is P
25 THE COURT: All right. And I’m going to
1 tell you that this little thing right here, sometimes
2 placed over there, that is our microphone. And we are
3 recorded courtroom, so everything is being recorded
4 and taken down when you say, so you need to make sure
5 you answer all the questions out loud and with words.
6 No nodding of your head and that kind of stuff,
8 THE WITNESS: All right.
9 THE COURT: Okay. Go ahead. Whoever.
10 DIRECT EXAMINATION
11 BY MS. KOEHLER:
12 Q. All right.
13 MS. KOEHLER: I did want to introduce the
14 guardian ad litem. Ms. Fargo West is here, Your
15 Honor. (Inaudible).
16 Q. (By Ms. Koehler) For the record can you tell
17 us your full name and your address?
18 A. My name is PH and I don’t
19 know my address.
20 Q. Do you know where you live?
21 A. I live in Conconully in the Winrow
23 Q. And who do you live with?
24 A. I live with my Aunt Mary?
25 Q. Cousin — lives — who live (inaudible)?
1 A. I’m not sure.
2 Q. Is Mason here today?
3 A. Yes, he is.
4 Q. I’m going to ask you some questions and if
5 you don’t understand the questions, what are you going
6 to do?
7 A. I’m going to ask you.
8 THE COURT: You are going to ask her. If
9 you don’t understand the question, you are going to
10 ask whoever asks the question if they could say it a
11 different way so you can understand it, okay? All
13 A. Yeah.
14 Q. (By Ms. Koehler) So can you tell the jury
15 what your birth date is and how old you are?
16 A. I am 10 years old and my birthday is
17 December 9th.
18 Q. Where were you born?
19 A. Where was I born? I was born in Spokane.
20 Q. And how long did you live in Spokane?
21 A. I’m not sure.
22 Q. Did you like Spokane?
23 A. Yeah.
24 Q. What did you like about Spokane?
25 A. I loved that I grew up there.
1 Q. What are some of the favorite things that you
2 have done in Spokane?
3 A. I don’t know.
4 Q. Do you go to school?
5 A. Yes.
6 Q. Where do you go?
7 A. I go to Sunrise Elementary.
8 Q. What grade are you in?
9 A. Fourth.
10 Q. What’s your favorite subject?
11 A. Reading.
12 Q. What’s the subject you hate the most?
13 A. Math.
14 Q. What kind of books are you reading in the
15 fourth grade? Do you have chapter books?
16 A. Yes.
17 Q. What’s the series that you like, do you have
18 captain — inaudible)?
19 A. Definitely not. I don’t — I just read
20 like — kind of like comic books, kind of any kind of
21 (inaudible). I really like big chapter comic books
22 where people are just talking. And I read like
23 (inaudible) like actual pages like that. Fourth grade
24 Eagles, I think.
25 Q. All right. Tree House, do you read Tree
1 House books?
2 A. Tree House books? No, I have heard of those.
3 Q. How many kids are at your class?
4 A. 32.
5 Q. So how long have you gone to this elementary
7 A. I’m not sure.
8 Q. Do you remember going to a different
9 elementary school or have you always gone to
10 (inaudible) school?
11 A. I (inaudible).
12 Q. Where was the one you used to go to?
13 A. (Inaudible) over in, over in Warden.
14 Q. Pardon?
15 A. Warden.
16 Q. Who were you living with when you went to
17 this school?
18 A. My cousin Mason, me, and my Aunt Mary.
19 Q. Same people?
20 A. Yes.
21 Q. Which school do you like better?
22 A. Warden.
23 Q. Why?
24 A. Because I do. I miss all my friends there
25 really bad. I thought I would be able to — I thought
1 we — (inaudible), I thought — I don’t know. Well, I
2 like that better over there, because it’s really hot
3 over there. Because I (inaudible) no more there.
4 Q. Did you miss a lot of your friends when you
5 moved back to live with your dad in Spokane?
6 A. Not that many actually, but yeah.
7 Q. Did you develop more friends when you went to
8 school than before you started school?
9 A. Can you say that again?
10 Q. That was a weird question, wasn’t it?
11 Before you started school did you live in
12 a neighborhood with lots of kids, or you mentioned
13 living with your dad?
14 A. I was more (inaudible) living with my dad.
15 Q. Tell us about that? What does that mean?
16 A. I mostly stayed in the house and watched TV.
17 Sometimes I was just hanging out with my mom and my
19 Q. What would you do with your mom and dad?
20 A. Watching a movie. Play like Starrysky or
21 something. It’s kind of hard to remember it’s been a
22 while ago.
23 Q. I heard something, your uncle testified about
24 was it frisbee ball?
25 A. Frisbee ball.
1 Q. What is frisbee ball?
2 A. It’s where — it’s where you get to have like
3 frisbees and they have got a point on them and they go
4 really, really far. You put your finger inside and
5 throw them as hard as you can and try to — it’s like
6 this metal pull thing where — where it’s a like a
7 metal pull and then there is a whole bunch of chains
8 in the square box thing. And you have to try to throw
9 it so it can hit the chains and then the — you have
10 to come to the next one, the next one, next one, next
11 one, and then you — you have a course and then
12 that’s — (inaudible).
13 Q. How did you like to do that?
14 A. I did it quite a bit. I did it with my dad
15 and this one guy named Scotty.
16 Q. So what other kinds of games like that did
17 you do outside?
18 A. Oh, well, I know I was going to school.
19 There was one kid that would come over for a little
20 bit and my dad had like this nerf, nerf gun. It was
21 of a missile one kind. He would shoot it up in the
22 air and then we would try to catch it. And whoever —
23 whoever would catch it, it would glow. And if it hit
24 the ground it probably won’t glow, it probably
25 wouldn’t, because the hitting the ground it would
1 light up. Like the corner or something would go hum.
2 Just kind of lay there.
3 Q. Did you do things like going hiking or would
4 you say you were an outdoors guy, or more of an urban
6 A. Well, we went like there was like this — me,
7 I lived in like this apartment place. And we went —
8 went down like this trail, there was a bunch of trails
9 down there. We — oh, yeah, we went to — we went to
10 this one place called it’s water park. We went
11 swimming there. We just — we went to parks too, so.
12 Q. Your dad, were you pretty close to your dad?
13 A. Yes. I was very close to him.
14 Q. Can you tell us a little bit about that?
15 A. Well, um. [can’t speak]
16 Q. So your Uncle Mike said that you like to
17 barbecue a lot. Did you go over to his house for
18 barbecues and things like that?
19 A. Yeah. When we went over for barbecues
20 sometimes — most of the time it would be for like
21 holidays, birthday parties, stuff like that. Or
22 sometimes in the summer, if it was just really hot.
23 It would be just like a hot weekend, we would go over
24 there. That was like the main place where everybody
25 was going to go. And like that, like on holidays,
1 like on Christmas.
2 Q. Christmas where everybody —
3 A. I don’t know it was just a family
4 get-together sometimes.
5 Q. Can you tell us who you all is in your family
6 so we can kind of get to know your family a little
8 A. My cousins and —
9 Q. The people that you would spend time with.
10 A. Oh, I would spend time with this girl named
11 Hally. And it was my uncle, my uncle’s daughter. I
12 would — I would sometimes — sometimes when everybody
13 was inside, I would go outside and be playing soccer
14 with her. And — and —
15 Q. That’s okay.
16 A. Huh?
17 Q. You getting a little nervous.
18 A. A little bit.
19 Q. Take a drink of water and pet Ellie. I think
20 she wants her tummy rubbed. She is on her side. Go
21 ahead, you can do that, no problem.
22 A. You are very interesting.
23 Q. Good.
24 A. That’s very good.
25 Q. So would you mind sharing with us how it’s
1 been for you when your dad got sick, do you remember
3 A. Yeah. I remember.
4 Q. And do you feel that you are comfortable
5 sharing with us about that?
6 A. Sure.
7 Q. Sure. Tell us about your dad getting sick.
8 That you — (inaudible)
9 A. Well, I kind of went through a lot of
10 sadness, because when my dad would talk to his friends
11 that he would be like so the doctor just told me like,
12 Oh, you got cancer. (Inaudible) but he actually, he
13 actually got — he was supposed to die in 2 months.
14 But he spent (inaudible) he passed away. But he was
15 sick. He had like this big puffed up thing on his
16 neck. It was — it felt like a big ice bag on top of
17 it. And, oh yeah, me and him couldn’t pay the rent
18 and stuff, so we just went over to our friend’s house
19 for a little while. Just moved to his friend’s house
20 for a little while. And there was there was two
21 teenagers, and a boy and his sister, and they were —
22 well, in that same picture. I would hang out with
23 them when my dad was like downstairs watching TV. But
24 when my dad would be out or doing something, like
25 going to the store or the hospital whatever, I would
1 be like, I would be either be playing with those two
2 or I’d rather be playing on my, my (inaudible).
3 Q. So your dad let you know what was going on?
4 A. Um, well, I only pretty much heard like when
5 he would talk to his friends. The stories, I would
6 get what he was saying.
7 Q. And figured it out, you know?
8 A. Yeah. Yeah. And my mom would tell me that
9 your dad is pretty sick, you know, but.
10 Q. Were you really, really, really happy that he
11 got to live longer than they thought he would?
12 A. Definitely, yeah.
13 Q. So what did you do to to make — make those
14 times really special for your dad, what did you do to
15 cheer him up?
16 A. Well, I didn’t really, at that time I really
17 I was like — I never really — I always forgot. I
18 always forgot that he was sick, because we were always
19 having so much fun. So I honestly didn’t know until
20 when I was at school one day and it was like three —
21 maybe a month away from school summer. And he said we
22 are going to go camping that summer, because we didn’t
23 get to do it the last summer. So and then — and then
24 my mom told me my dad has to — it’s time for him to
25 go over to (inaudible)So I got pretty sad.
1 Q. So he — again, anytime you don’t want to
2 answer my questions, it’s not going to — it’s okay to
3 say for you to say, I don’t want to answer. I don’t
4 want to invade your privacy too much. But if you are
5 okay talking then we will be here, you know. We
6 really want to hear from you what you want to say,
8 A. Okay.
9 Q. Still doing okay?
10 A. I’m fine.
11 Q. Want to pet her one more time?
12 A. Sure.
13 Q. Okay. Were you able to say good-bye to your
14 daddy before he died?
15 A. The last time I said good-bye was — was I
16 can’t really remember, but I remember that it was the
17 last weekend that he spent at home, you know.
18 Q. What did you guys do the last weekend?
19 A. I can’t really remember. A little hard to.
20 Q. Yeah. So —
21 A. I kind of feel it was like just the same
22 ordinary thing. That’s one of the things why I was
23 crying so much that he passed away.
24 Q. So obviously you were very sad when he passed
1 A. Yeah.
2 Q. Have you been able to talk to somebody about
3 how to get through this time?
4 A. Yeah. I have had — I don’t know what they
5 are called. People who help, that you can talk to.
6 Q. Counselors? Yeah?
7 A. Counselors. I have had counselors to — I
8 still have a counselor actually.
9 Q. Is that a her or him?
10 A. It’s a guy, yeah. And he is sort
12 Q. Do you talk to him whenever you feel like it,
13 or do you have appointments?
14 A. I have like appointments, I don’t know when
15 the appointments are. But like on Tuesday and
16 Fridays, like that. (Inaudible).
17 Q. So you do you see him a couple times a week,
18 or once a week?
19 A. Once a week definitely.
20 Q. Do you feel like that you have — do you
21 really like — I mean do you feel like it’s a good
22 idea that you have counselor?
23 A. Yeah. Because then I get to express my
24 emotions and then he sends me back home. Then I will
25 be able to talk to somebody instead of like being in
1 my room and crying.
2 Q. So you seem like you are one heck of a well
3 adjusted 10-year old. And I guess my question is, how
4 have you been able to just stay so cool?
5 A. My dad was all about that I guess. I guess I
6 kind of just learned from him.
7 Q. Tell us about that?
8 A. To pull through. To kind of pull through
9 whatever happens. What happens, to just to keep on
11 MS. KOEHLER: Thank you, very much.
12 THE COURT: Any questions?
13 MR. SMITH: No questions, Your Honor.
14 THE COURT: Any questions for P from
15 the jury? You guys just want to pet the dog don’t
16 you? Okay. Well, that means you are done. And so
17 you can go and I guess you can take her with you,
18 though I am very sorry to see her go. I don’t think
19 she wants to leave.
20 UNIDENTIFIED FEMALE SPEAKER: I think she
21 just wants to stay.
22 THE COURT: I think she wants to stay here
23 in the courtroom with us for the day.
24 UNIDENTIFIED FEMALE SPEAKER: She can stay
25 a while.
1 THE COURT: No, that’s okay. You can take
2 her, you can take her home. Thank you, very much,
3 P. You want to walk her out? I bet you can?
4 Oh, she really does want to stay here. That you very
5 much for letting her visit with us.
6 THE WITNESS: Yeah. Really, thank you.
Transcript from 2014 asbestos wrongful death trial.
Photo: Noelle celebrating her 21st birthday with a visit to the animal shelter in Nashville.
Shellie: I’m addicted to Drop Dead Diva. You were right.
K3: I know – isn’t it entertaining.
Shellie: Who would have thought.
K3: It is such a ludicrous concept, but executed so brilliantly.
Shellie: I love how she flicks her hair over her shoulder when she scores a point.
K3: You get the case in the morning and try it in the afternoon.
Shellie: So entertaining.
K3: I love how it just takes a few sentences to shred a witness in cross exam. In fact, she has inspired me to change the way I do cross. Instead of pecking at the expert, now I get right to it. While being completely sweet and charming at the same time of course.
Am co-counseling on an asbestos case handling damages. The defense is presenting its economic expert. Typically not a real jazzy point in trial. Am listening to the attorney qualify the witness. Have never encountered this witness before. Know pretty much nothing about him. Here is the beginning of direct. I’ve highlighted the words that catch my attention:
16 DIRECT EXAMINATION
17 BY MR. WOOD:
18 Q. Good afternoon.
19 A. Good afternoon.
20 Q. State your name and address.
21 A. Mark Newton. And my address here in Seattle
22 is 1601 Fifth Avenue, Seattle 98101.
23 Q. And why are you here?
24 A. I’m here to testify regarding the economic
25 damages of the plaintiffs in this case.
1 Q. Could you give me a brief summary of your
2 educational background?
3 A. Well, I went to college for one quarter at UC
4 Santa Barbara back in 1970. And then I transferred to
5 UCLA later that year. And then graduated with a
6 degree in economics in 1974. And that’s basically it.
7 So I have a degree in economics.
8 In terms of education after that, I did
9 that to take some additional accounting courses after
10 graduating to qualify to sit at the CPA exam.
11 Q. Okay. And you are presently licensed as a
12 CPA in the state of Washington, is that correct?
13 A. Yes.
14 Q. Okay. Why don’t you give me a brief overview
15 of your professional background?
16 A. Sure. Yeah. Well, I have worked for this
17 company HSNO. I began in that — in those initial —
18 it wasn’t that when I started. It was accounting
19 under the name of the founder of the firm back then.
20 Anyway so I have worked technically for the same
21 company since 1974. Since I graduated from UCLA. And
22 so generally my work has been in forensic accounting
23 and economics. And I became a CPA.
24 I do a lot of work in cases like this,
25 where we are talking about economic damage on what I
1 would call personal economic cases. I personally do
2 wrongful death. We also do a significant amount of
3 work and other commercial types of disputes in courts.
4 So contract disputes. Other damages. Unfair business
5 practices, wherever we are evaluating the effects of
6 business from some alleged action. And in terms —
7 basically in terms of property damage. And then I
8 also do quite a large cases involving (inaudible)
9 cases, where somebody is concerned that someone who is
10 managing a business, for instance, may have been
11 misusing the assets of the business. So we get
12 involved in tracing that kind of work.
13 And then the last category, generally
14 speaking is we do a lot of work on insurance claims.
15 So these would be fires, floods, hurricanes, things of
16 that nature. And we help determine how much —
17 usually, usually business interruption type lawsuits
18 would be paid under an insurance policy.
19 Q. And you may have said this and I missed it,
20 but what does HSNO stand for?
21 A. Well, Hagen, Streiff, Newton & Oshiro.
22 Q. And that’s the name of the company you are
23 working at?
24 A. Yes.
25 Q. And have you ever taught any courses?
1 A. Well, I have taught — in essence, yes. I
2 have taught a lot of classes over the years, usually
3 in the context of seminars at conferences. So usually
4 professional organizations. And I address certain
5 topics in those cases, yes.
6 Q. And I think you mentioned you have been
7 qualified to testify as an expert in courts of law
8 before, is that correct?
9 A. Yes, I have.
10 Q. Which courts?
11 A. Well, primarily — actually this was the
12 first chance I have had to testify in the state of
13 Washington. But I testified very often in California.
14 I started off my career in California and I have been
15 here for about 9 years. And just hadn’t had this
16 opportunity for that time. But I testified at scores
17 of times in California. Testified in federal court
18 cases in Nevada, Ohio. Where else have I testified
19 at? I have testified before the International Trade
20 Commissioner in the late ’80s. I even testified in a
21 case in Seoul, Korea.
22 Q. And you have been retained on occasion for —
23 as an expert for plaintiffs in personal injury
24 lawsuits, is that true?
25 A. Yes.
1 Q. But when it comes to asbestos lawsuits have
2 you been retained by plaintiff/defendants?
3 A. Always on the defense on asbestos cases we
4 have just — over the years it’s evolved where we work
5 for only the defendants.
6 Q. What’s the hourly rate you charge for your
8 A. For my testimony it’s $450 per hour.
9 Q. Okay. And could I ask you that when you give
10 your opinions for me here today, that you do so with a
11 reasonable degree of scientific certainty?
12 A. Yes.
13 Q. And you agree that you will give me opinions
14 that are more likely than not true?
15 A. Yes.
The expert is very professional looking. Wearing a gorgeous tailored suit that puts mine to shame. He is poised, confident and pleased with how fluidly the well scripted direct is going.
Skip now past 20 more pages of testimony and the laying down of his opinions.
Time for a Drop Dead Diva moment. I summon the persona of Drop Dead Diva and approach the witness. Let’s begin by breaking all cross examination rules and leading off with an open ended question.
13 CROSS EXAMINATION
14 BY MS. KOEHLER:
15 Q. Can you — sorry, can you tell me your degree
16 in economics, what was your degree?
17 A. It’s a Bachelor of Arts degree in economics.
18 Q. So when counsel asked you to testify within a
19 degree of scientific certainty, you are not capable of
20 doing that, are you?
21 A. Well —
22 Q. You are not a scientist?
23 A. Well, I wouldn’t call myself a scientist, but
24 I would call myself a forensic economist.
25 Q. So let me repeat my question. Counsel asked
1 you if all your opinions were based upon a scientific
2 certainty, and you are unable to testify to that
3 level, am I correct?
4 A. I don’t recall if that was the exact question
5 I was asked or not. But I think in terms of what,
6 what I —
7 Q. I just asked you a very specific question.
8 A. Okay. I don’t recall if that was the exact
9 question and answer.
10 Q. Assume that that was the exact question that
11 was asked to you. Did you tell this jury that all
12 your opinions are made within a — a degree of
13 scientific certainty? Assume that question was made
14 to you and you said yes. Is that an incorrect
15 statement of your capacity to give an opinion to this
17 A. If under your hypothetical that was the
18 question asked and that was the way I answered it,
19 yes. I don’t think I could answer with certainty on
20 what more or less probable. And I thought that was my
21 answer, but I apologize (inaudible).
Turn, sashay off and flick my hair over my shoulder…before resuming the rest of cross which includes of course a few more reminders of how well he was stabbed right out of the gate.
17 Q. And is that what you are saying to this jury
18 is that the lost wages and lost earning potential are
19 the same?
20 A. In this case, yes.
21 Q. Okay. Well, that’s an assumption that you
22 are making.
23 A. I don’t believe it’s an assumption. It’s a
24 conclusion that is my opinion that that would be the
25 case in this case.
1 Q. And your opinion is on the basis of what
2 a — to what — what is the basis of your opinion?
3 What is the — what is the expertise of your opinion
4 so that we know what to call it? Do you agree that
5 it’s not to a scientific level. What it is? [Eyes wide and shrug shoulders to the jury]
6 MR. WOOD: Objection, vague.
7 A. Well —
8 THE COURT: Well, if you understand it,
9 you can answer it.
10 A. Yes. I think the — when you threw in the
11 scientific reference to the scientific method, I’m not
12 sure what you mean in that phrase.
13 Q. (By Ms. Koehler) Well, I didn’t come up with
14 that, your counsel did.
15 THE COURT: Okay. You know, you need a
16 question, okay.
17 MS. KOEHLER: Okay. I’m sorry, Your
19 Q. (By Ms. Koehler) The question is: What
20 degree of — what is your testimony, what is your
21 opinion, what is it called? Is this just a more
22 probable than not opinion, or do you have some kind of
23 way to do your opinion that you would like us to
25 A. Well, it’s my — I’m sorry.
1 MR. WOOD: Objection, vague.
2 THE COURT: Do you feel you can answer the
4 THE WITNESS: I think I can.
5 THE COURT: Go ahead.
6 A. Well, I think it’s the basic premise that I
7 am using is more probable than not.
Photo: Framed picture of me with my best friend in the whole world Shellie on her wedding day. Sitting in my bookcase .
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.
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
This is a trial diary excerpt from 2011:
Four more witnesses testify – but only want to talk about one of them. The 38 year old daughter.
How do you turn a witness into someone a jury will connect with. Well, for starters you stop believing you have magical persuasive powers. Presenting a family member means getting out of the way so they can show their love. It means creating a safe place. It means embracing the human condition. Not in a data collecting, data spouting lawyerly way.
Experiencing Michelle’s testimony is like being tossed about in an emotional cyclone. She starts off friendly and awkward. But in a few minutes we are swept along. It is charming, gut wrenching, sweet, horrible.
Michelle has a scrunched up pile of Kleenex that she smooshes into her eyes. She doesn’t dab at them. She smooshes hard. Keeps her hand pressed there and continues talking without apology. She isn’t crying for empathy. She is simply crying.
I would like to cry with her. Cannot and will not. Eyes well up. Stay filled to the brim. And do not leak out.
Some of the best speeches I’ve ever heard have been at funerals. Think about the ones you’ve attended. People from all walks of life stand to speak and out flows prose that touches us to the core. Rarely are the good ones written down. The bereft simply speak unhesitatingly from the heart.
This is what Michelle does.
When she is done I feel weak. Like Whoopi Goldberg after Patrick Swayze’s ghost inhabited her body. Like JZ Knight after she channeled Ramtha. You get the idea. The best way to put on a family member isn’t by carefully crafted questions. It involves simply being the vessel.
Photo: Jataun, my god daughter.
The day after.
Oprah talks about the power that our bad secrets hold over us. The amount of time and energy we spend keeping them hidden. The worrying that others will find out. The feelings of unworthiness that fester from trying to suppress our embarrassments.
For trial lawyers, the bad secrets are the crappy verdicts that juries render. Our culture is dedicated to trumpeting big wins but rarely mentioning the small ones. In hushed tones, we talk of losses that we hear about through the grapevine. We rarely say anything directly to the attorneys who drop out of sight to nurse the pain.
This month our state bar ran a story that I wrote 8 years ago on humility. What a coincidence.
Here is what happens after getting yesterday’s crappy verdict.
- Console client. Nothing else matters until that is done.
- Avoid everyone in the office as much as possible. But can’t really.
- Make a pretense of working. Don’t get anything done.
- Send immediate notice of verdict to everyone at office and on trial diary list – because have made vow to always be all the way real.
- Wish didn’t have to broadcast verdict.
- Bet law partners wished I didn’t broadcast the verdict.
- Think of four or five prominent trial lawyers who have gotten defensed recently.
- And of how quiet they are.
- Think about all the lawyers who ask me to work on their client’s cases – even though they know I don’t always win
- Think about how Steve N brought me in to settle or try a case that resolved last month for a very large but secret sum.
- Think about the case tried 2 months ago with Steve H that Allstate is whining about. They need to hurry up and pay that verdict and our fees.
- Wish this case had turned out as great as those cases.
- Think about what a crappy company Allstate is and how that complicated this trial
- Second guess whether should have followed Brad’s advice. Taken a covenant and tried liability later against Allstate who claimed the acts were intentional and not covered.
- Eeny meeny miny moe. Should have taken his advice or not or should have or not…
- Mentally bang head against wall
- Begin to receive slew of condolence emails and inspirational emails.
- Don’t answer any of them. Yet.
- Read most important email from most important mentor: Karen, I am proud of you because you tried the case. You learn and get better with each trial and, most importantly, the defense knows that you will try the case. That fact raises the value of all of your settlements (probably doubles) for all of your other clients. Tom (Chambers)
- Read email from Janice Kim instructing me to go watch a movie as soon as possible
- Email back and forth with Rick Friedman about trying hard cases
- Put Nala’s leash on and leave office at lunch time with no intention of returning.
- Get in car and don’t get lunch.
- Noelle sends me number to call. Call it. She is at the Rome airport. Gives a progress update. On her way to study abroad in Sienna. Love you, Bye.
- Drop Nala off at home.
- Drive to Salvation Army thrift store. Look at all the bits and pieces of old stuff. Find a pretty antique silver tray.
- Drive across the street to Pacific Galleries. Very large antique store. Look at all the bits and pieces and don’t buy anything.
- Drive to Home Depot and get some more pink annuals for the deck pot. While at Home Depot Cristina calls.
- How are you doing
- Am pissed off.
- Are you okay
- Am not upset. Am pissed.
- That’s the same thing.
- No. Am angry at that jury. They were wrong this time.
- Are you at a thrift store
- Hahaha. How do you know I did that.
- You always do.
- Why do you think that is
- You want to be around poor things.
- Total cost of retail therapy $24.67
- Drive home. Alysha is in the kitchen. She gives me a very nice big hug. Needed that.
- Take Nala out again.
- Hook iphone up to speakers on deck. Pandora set to Aretha Franklin.
- Dig in flower pots and transfer the plants.
- Look at emails on iphone. Still pouring in. Frank Schoichet says he has 4 rules of cases not to take against police officers. Rule #1 – no alcohol. Now he tells me. Click off phone.
- Can’t click off brain.
- It is Thursday which means Queen Ann Farmers Market. Get bag and drive up the street. Park. Buy kale, carrots, snap peas, strawberries and raspberries. Go to falafel stand. Take home dinner.
- Back in kitchen, read the rest of sappy Danielle Steele novel on kindle while eating falafel.
- Sweep front porch area and pick up the few leaves that have dared to drop there since yesterday
- Feel slight guilt for not being at office.
- It is now 5 so would have left anyway yet still feel guilt.
- Throw on running gear and out the door with Nala.
- Run up the hill and wind through the neighborhood.
- Agitation is not helping the run much today. Feel like weights are tied to ankles.
- This is what goes through mind
- Despite all the sweet emails from lawyer friends saying this is a good result- know for a fact – it is not.
- Allstate offered $20K to settle. We barely bettered it. That doesn’t make it a win
- Under-estimated the impact of alcohol
- The jury was too old
- They were heading towards a defense verdict. Felt it on Tuesday and have no doubt
- If that sudden emergency instruction had been given, for sure it would have been a defense verdict
- There’s nothing to appeal
- Hope client is feeling better
- This sucks
- Wonder who the presiding juror was
- At least it only took 2.5 days. Not 2.5 weeks.
- Home by 7:30.
- Look at Fandango – movie is playing at 7:50
- Hit the shower and leave house at 7:47. There are 20 minutes of previews anyway.
- Go down usual route and come to stop. Traffic backed up due to graduation ceremonies.
- Make it to movie theater by 8:05. Was aiming for 8:00
- Get popcorn and diet coke.
- Previews are still going.
- Watch Fast & Furious. Janet’s right. Action movie is the way to go
- Come home. Still stewing but not as much
- Do load of laundry.
- Take Nala out.
- Turn on schmaltzy Pandora channel – I will always love you (Whitney Houston).
- Write this trial diary entry.
- And call it a day.
Photo: Rainbow seen from my bedroom window
So how accurate are these trial diaries…
You be the judge.
Youtube Video: http://youtu.be/U7bUKzGIER0