I am looking at the Medical Examiner’s chart. She has been shot 7 times. 7 pieces of metal are either in or have gone through her small body. The same height as mine. But more slender. Her face is beautiful. It was spared. They aimed at her middle.
I count the bullet holes on the front of the body diagram. Then on the back. There are more than 7 holes. Some bullets count for 2 holes each. In. Out.
What was she thinking when the first bullet struck. Did she feel it pierce her flesh. Did it burn. My hand goes to my stomach. I can feel the pressure of my blood as it rises through my body and up into my throat. Rises up my head and needs to be released. Through my eyes. Through tears. My breath catches. Did she feel them. Did she know. My stomach and heart ache. They are screaming: NO. Silently. Awfully.
I travel laboriously through the ME’s report. Bullet by bullet. Until they are all accounted for.
Photo: tree by me
Sometimes my job is sickening. I get the whole idea of defense lawyers attacking my clients in order to make sure they are telling the truth. But what I can never get used to are the grotesque tactical maneuvers used by some defense lawyers to save an insurance company a buck.
Here are a few excerpts from an argument I made to the Court opposing defense counsel’s motion to dismiss a father’s claim for the wrongful death of his child. Before reading this: a) put on a white jacket; b) stand up fully; c) employ wonder woman frown; d) thrust out chin; and e) use extra emphasis when using the word: “repulsive.”
Good morning, your Honor. Your Honor, initially when I drafted the response to this motion, I asked for terms. And I took it out because I believe that this motion was the result of a law firm letting an associate just run amok. And I didn’t want to blame her for it. But this is one of the meanest motions I’ve ever seen in a case. It is without foundation…There’s a human element in cases as well as a legal element. And humanity, I believe, should be an undercurrent of our legal system. As well as respect of individuals. And this motion is disrespectful and not based on the law.
And so what the defense is inviting us to do here is to go ahead and discriminate against a couple that is not yet married and put a burden on them that it would place on no married couple to prove paternity because of an alleged rape that they (the defense) has done nothing to discover. I think it is repulsive. In fact, stepchildren and stepparents do have rights under our wrongful death laws. it started with natural, it went to adoption, and it went to step. that was the progression of our law because it reflects the humanity of our culture.
In this case Mr. A was there for all the pregnancy. He supported his wife (Freudian slip) throughout the pregnancy. He was there witnessing the collision. Was there witnessing when an emergency C section was required. Was in the hospital every day of his daughter’s life. And held her at the moment she died. I just find this motion repulsive.
There is no case law saying that you must prove paternity before you can be deemed to be a mother or father. To the contrary, all the case law says you act like a mother, a father, you take on those responsibilities, you love the child, you are the mother or father for the purposes of our laws in this state.
The heart of this motion is attacking the fatherhood of Mr. A. I just can’t get over it.
Photo: a fighter of mean motions via snapchat.
A few days before Thanksgiving a defendant corporation sends me the report of its expert accountant. This person’s job is to place a value on the life of a two and a half year old child who has died as the result of the negligence of others.
In our state the way we decide the “value” of loss of life under such circumstances is to project what the child would have grown up and earned during her life time. Less what the child would have consumed. The amount that is left over is called “net accumulations” and this cold calculation = value of the life lost.
This time though, the expert isn’t satisfied with that. It isn’t low enough. So he decides to make additional deductions that include the cost of raising and educating the child. After he’s done guess what – the child’s life is worth zero. In fact, in reading another report he’s done with the same strategy – the child’s life is worth less than zero. Under his theory, the Estate is better off with the child dead.
I’ve brought a motion to strike these additional deductions.
Feel free to use it if you encounter this expert or strategy on your client’s cases.
Photo: My god daughter’s 2 and a half year old child enjoying ice cream on a messy hair day. She is not the P. She is alive, loved and well.
Technology is changing the way we are able to visualize everything. This 3D imaging study shows a picture that makes more sense to us than would a simple xray.
In this case, a worker was killed on the job when he was installing a defective device. The electrical system in the piece of equipment had been negligently manufactured. When he started to install it, the device shorted and launched like a rocket into his face. He survived the impact but died in the hospital about a month later.
As a lawyer when I look at this image I think about the shock that must have been felt when his face was smashed. The blow would have knocked him to the ground. He would have been in shock. Bleeding profusely. When his hand reached up could feel his broken bones. His left eye was gone. His jaw was broken, unhinged, swinging freely. His teeth and pieces of bone, ligament and muscle began to clog his airway. Until he could no longer breathe.
When I see an image like this, I see a man’s terror.
Photo: 3D image from Harborview Medical Center
The calls are coming in with increasing frequency. Loves ones have died after simple medical procedures. The cause: killer bacteria introduced into the body sometime during or after the procedure. Surgical incisions aren’t even necessary.
The survivors are usually in shock. One day the husband has some problem with the digestive tract and is going in for an exploratory scope. A little while later, his organs have rotted and died from the inside out due to a hospital introduced micro piranha feeding frenzy.
If a person dies from this type of bacterial infestation, the hospital needs to be proactive. It should immediately conduct an investigation to determine the exact microorganism involved and an autopsy should be ordered.
The procedure should be no different than what we expect if a restaurant causes someone to get e-coli or other food borne illness. The restaurant needs to figure out what happened immediately. Isolate the cause. Scrub down and eliminate the hazard. And take care of the people sickened or killed.
When public safety is involved, institutions shouldn’t try to protect themselves from possible lawsuits by pretending life threatening contamination problems don’t exist.
Photo: Thor – given to me by my future son in law Sol on mother’s day. Thor would strike his mighty hammer and deal with these organisms and institutions. Swiftly and surely.
Jan was married to her childhood sweetheart. She made his favorite sandwich. Was getting ready to leave for his jobsite. So they could have a noon picnic in the car. Phone rang. There had been a work accident. Charlie was dead. Jan never got to say goodbye.
Irene and Paul were both widowed when they fell in love and married. One day he got into his favorite car and headed to the hardware store. Bought a few items. Just a few blocks before he reached home, a novice driver crossed the center line. Paul was dead. Irene never got to say goodbye.
Sharon and her youngest daughter were visiting Seattle. Walking on the sidewalk at 5th and Pike downtown. A driver lost control of his car. Went up onto the sidewalk. Striking mother and daughter. Sharon was dead. Her husband and children never got to say goodbye.
These stories are my clients’ stories. They haunt me. And have taught me.
We need to assume that our loved ones will be alive by the time we next see them. We need to be positive. To take life for granted – to a certain extent. Because if we only dwelled upon death and dying, we would greatly diminish our ability to live life fully.
Yet in an instant everything can change.
In the case of traumatic death the survivors not only are grieving the loss of their loved ones. Or worrying whether they suffered pain. The survivors are replaying their last moments together. Maybe they hugged before they parted that day. Maybe they didn’t. Maybe they blew kisses. Or quarreled as all families do. Almost everyone wishes they could replay and rewrite that last ending. Hug longer. Kiss better. Smile and not quarrel. Sometimes the wish to change that ending causes great survivor guilt.
On a Monday two weeks ago, my oldest dear friend (from Kindergarten) called:
Liz: did you hear about Bonita.
Liz: I heard from someone who saw something on facebook that she is terminally ill.
K3: I will find out what’s going on.
And so, I investigated and eventually discovered that she had been recently diagnosed with the most aggressive form of brain cancer that is known to science. Her best friend Kimber said that Bonita underwent surgery. Had lost significant brain function. Was in a skilled nursing facility in Fairfax Virginia. Awaiting the end.
K3: How long.
Kimber: They say she may make it to Christmas.
K3: I am going to come see her.
K3: I will need to clear my schedule but hopefully in two weeks.
All I could do for the rest of the day was think of Bonita. That night sitting at the kitchen table with Steven, started looking up flights on expedia. Could take a red eye after teaching class Saturday. Get in Sunday and leave Sunday night to be back in time for work Monday. Booked the flight. Messaged Kimber.
K3: I’ve decide to come this Sunday instead. The sooner the better.
And so, that’s what happened. Was able to see Bonita. Hug her. Show her pictures. Kiss her. Sit with her. Help her eat a little. Smile and laugh with her. Hold her hand. Tell her stories. Reminisce. Even though at first she couldn’t quite remember who I was.
It was a privilege to be able to be with her one last time. And to say goodbye in person.
Photo: Beautiful Bonita when I last saw her during a stop over in Washington DC.
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.
Drunks in cars kill. But blame is also shared by the bars that choose to over serve intoxicated customers who get in their cars.
This is the story of three young friends who got in the way of two over served drunks in a car.
Excerpt from settlement demand:
The three friends were enjoying a quiet, laid back evening. The highlight was to stop by 7-11 and pick up some drinks, chips and candy. They were planning to eat the snacks while watching Cats & Dogs, a family movie. They left 7-11 and were headed northbound along the four foot paved shoulder of Shoultes Road. The group was well to the right of the fog line. Street lighting provided clear illumination.
AA and JJ were walking on the inside of the shoulder. SS was perched next to them on a small bike he had borrowed from another friend. SS was the closest to the travelled portion of the roadway.
One minute they were smiling and chatting. The next they were flying through the air. The friends had no time to run for cover. No time to react at all. The VW had accelerated, swerved and struck them from behind. The force was so tremendous that their shoes and clothing were ripped from their bodies.
SS was thrown towards the right shoulder. JJ was thrown to the left, landing in the center of the roadway. AA was vaulted up into the windshield and driven farther down the roadway before landing on the right shoulder. Their bodies came to rest 50 to a 100 feet apart from one another.
Witness PDL was watching the wildly swerving vehicle and at first thought it hit a tree limb. As her vehicle reached the scene, she saw the scattered bodies and debris. She began screaming and crying. Her driver Witness M stopped and jumped out of the car to halt traffic and protect the kids until help arrived. Witness PDL called 911 and stayed on the phone until aid arrived.
The first 911 call came in at 11:27 pm. Officer King showed up within one minute of being dispatched. He ran from one young man to the next. Trying to determine if anyone was alive. He found SS about 20 feet south of the bicycle he had been riding. SS was unresponsive, unconscious, but alive. His loved ones were not by his side. No one kissed him, whispered goodbye, or told him how beloved he was. Medics tried to resuscitate him to no avail. He died a few minutes after Officer King first checked on him. Alone. His head and upper body rested on the cold pavement. His legs lay off the side of the road in dirt. There he lay for over four hours, waiting for the Medical Examiner to arrive.
Text of demand – edited: SKMBT_C55214101608470
Photo: Bar surveillance video capture of the drunk having another drink
The defense is bringing in a memory expert from back east. To say the surviving brother’s memory is not real.
This is an asbestos-mesothelioma trial. The exposure happened in the 1970s. The only witnesses who can identify the product are the brother (who was then eight) and the deceased.
We call the brother early. The plan is to inoculate against the defense by proving his clear memory. We have to do several other things as well. Such as establishing enough evidence to overcome a motion for directed verdict.
The jury is solemn. There is tension in the court. The witness is nervous at first. Settles in as soft routine questions surround him. And then, the moment comes when you can feel the jury turn towards instead of away from our side. The moment comes – with the Story of Yakkie the Goose.
20 Q. So let’s move up to a year to, let’s say you’re around
21 six years old. Can you tell us a story about when you were
22 six that really sticks out in your mind?
23 A. Oh, well, we went fishing one time. We seen some baby
24 geese. It was (inaudible), I believe. We wanted — me and
25 Jimmie wanted one of the geese. So my dad went out there
1 and he caught one. We ended up taking it home, and we had
2 it as a pet.
3 Q. Well, now how did you carry the goose — was it a
4 goose or was it a baby goose?
5 A. It was a baby. It was tiny.
6 Q. Do you remember details about how you even got it
8 A. Well, put it in the car. Me and Jimmie — we wanted
9 to hold it but my mom said no. You’re not — I think she
10 was scared we were going to squish it. She held it on her
11 lap on the way home. It pooped all over her lap, so we kind
12 of found that funny.
13 Q. And you would have been around six?
14 A. I believe so, yes.
15 Q. And tell me about the goose — I think — tell me what
16 happened to the goose? Tell me about your life with the
18 A. We had him, I believe, at least a year. He grew up to
19 probably — I don’t know, three foot tall. Never could fly,
20 though. He used to chase us around the yard. He slept in
21 our house. We would have to keep him on the back porch
22 because of my father and mother, but — he would sleep with
23 us on occasion. He’d actually play hide and go seek with
25 Q. How did the goose play hide and go seek?
1 A. Well, he would stick his head under the couch
2 cushions, and my mom would, you know, say go, hide. And
3 then she’d say, go get ’em, Yakkie, and he would just pull
4 his head out and scream. He wouldn’t look for us. He would
5 just scream until we came out.
6 Q. You named the goose?
7 A. I did not. Jimmie did.
8 Q. Yakkie?
9 A. He got to name it. Yes, Yakkie. Because he was
10 always yak, yak, yak.
11 Q. So was Yakkie around by the time of the incident that
12 we’re talking about today?
13 A. No.
14 Q. Okay. So this would have been before your grandma.
15 A. Yes.
16 Q. So sometimes it seems like you have a fairly clear
18 A. Yes.
The full direct exam is attached. You have to imagine the bantering tone that exists between attorney and witness. The beautiful simplicity of the messenger and his message. And the bemused delighted laughter from the jury.
Transcript: The goose
Photo: The girls at ages 8, 6 and 3 (with their dogs Coco and Tucker) still remember hanging out on the front lawn that summer.
Am reading the police report on a new case:
T told me he had a dog in the vehicle. I checked and located a brown
lab type dog on the rear passenger floorboard. The dog was not
breathing and I could not feel a heartbeat. I asked SFD E31 to check the
dog too. there did not appear to be any signs of life in the dog.
We don’t leave our children unsecured in cars for the same reasons we shouldn’t let our dogs roam freely. We may like to cuddle with them. They may be happy as they crane their necks out the window. But the second that vehicle is violently struck; the dog will go airborne and almost surely die.
Use a crate, or secure your dog with a chest (not neck!) harness clipped into existing seat belt hardware.
Graphic by Duane Hoffman. Trial exhibit of a seriously injured back seat passenger. Upon impact, the 80 pound dog was thrown into the front seat. Her back broke and she and died.