Though irritated, I did not lose a lot of sleep over John Henry Browne’s filing of a lawsuit against me and my law firm for defamation over our handling of the civil wrongful murder action we filed against his client.
First, I believe in the power and righteousness of the First Amendment.
Second, truth is a complete defense.
Third, I would back our exceptionally fabulous Free Speech attorney Bruce Johnson against JHB any day of the week.
Today King County Superior Judge Jim Rogers agreed and threw out the defamation lawsuit. The case had barely begun. After receiving the complaint we filed an answer. Then Bruce filed a CR 12b6 motion to dismiss for failure to state a claim.
Judge Rogers converted it to a CR 56 motion for summary judgment. Meaning he considered all the facts and evidence as opposed to ruling simply on the merits of the pleading. He then ruled the complaint should be dismissed. The fair reporting privilege applied. Free speech won the day.
Here is Judge Rogers’ Order: order-granting-defendants_-motion-for-dismissal-under-cr-56-11-18-16
Photo: Me and the girls footloose and fancy free in Rome right after JHB sued me.
Prologue: This case involves a third trimester pregnant woman who was a passenger in a car. The car was t-boned by someone else. The mother was injured and the baby died.
- Has any DNA or other test been conducted to establish that X is the father of BABY? If so, Please identify the facility that performed the test, the date the test was conducted and the results of the test:
Answer: This counsel has instructed our mourning client parents not to read nor respond to your insulting, rude, and uncivil question. Unless you have any basis to attack paternity – which would involve our female client engaging in sex outside of the parties’ long standing child producing committed relationship – this question is irrelevant, and propounded for no purpose other than to act indecently in the face of a wrongful death of a baby action.
Request for Production
2. Please produce any DNA or other paternity testing referenced in the above interrogatory.
Answer: See answer and objection to interrogatory 1.
3. Please produce all documents or written materials which you claim evidence X as the father of BABY.
Answer: See answer and objection to interrogatory 1.
4. Please produce any affidavit of paternity executed with regard to BABY.
Photo: Gran puppy Millie Doodette at Noelle’s house – wishing people would just act nice.
4:30 Slide sideways out of bed. Do everything necessary to get out of house.
5:15 Drop Nala off at downtown dog lounge.
5:45 Arrive at SeaTac. Park. Walk. Get thru security. Wait. Board.
7:00 Lift off. Eat lemon luna bar. Pull up P case on ipad. Exhibits have been loaded into Trialpad. Scroll through them. Nod off. Child kicks seat. Get back to work. Eat too many grapes.
10:15 Arrive. Call ride. Walk through terminal. Get in car. Drive to law office for deposition. Park. Arrive. Set up laptop and ipad. Wifi is lame.
11:00 Deposition begins. Defense lawyer is grumpy and snappy. The trial starts this next Tuesday in Skagit county where there is no discovery cut off. I had asked him to do this deposition by skype. But he wanted to “see the expert’s eyeballs.” I’m the one who should be grumpy.
11:10 Stop the deposition. Need a break. Ate too many grapes. Defense doesn’t want me to take a break. Think he’s joking. He’s not. I begin to explain the gastrointestinal details of my situation. He relents just as I’m about to go into the graphic parts. We break. I run back and forth to restroom.
13:15 Finish. Pack up. Drive back to airport. Walk. Get thru security. Pick up salad. Wait. Board.
14:45 Lift off. Eat mediocre salad consisting of mainly spinach leaves. Change brain from the P case to the D case. Work on the computer.
17:30 Arrive. Walk. Drive back. Listen to where I last left off on excellent biography of Maurice White: My Life with Earth Wind & Fire. Rush hour. Pick up Nala from DDL.
18:45 Arrive back home. Take Nala out. Need to start preparing the D case for tomorrow. Am feeling a bit foggy.
19:00 Eat a little protein.
19:15 Look quickly through 125 emails.
19:30 Pull out bag of Boom Chica Pop popcorn. Which costs $3.99 and is hard to justify but sometimes the thought of pulling out the pot is too much. Shake vegan parmesan on top. Highly recommend this – quite delicious. Grab piece of chocolate and iced green tea. Treat for Nala.
19:40 Go downstairs. Watch Season 1 Episode 7 of The Paradise a BBC series.
20:35 Finish. Fog has cleared. Go upstairs. Put away dishes. Take Nala for walk.
20:50 Perform ablutions.
21:15 Pull out computer. First summary judgment – statute of repose and legal causation. Go through all briefing. Condense all legal authorities in argument from 20 pages to 3. Remove all facts as know those.
22:45 Second summary judgment – vicarious parental liability. Go through all briefing. Condense all legal authorities and standards to 4 pages. Remove all facts as know those. Open Westlaw. Read again the Zellmer, Jenkins, Chhuth, Baughn line of cases which support our side. Read again the McAndless line of cases which support their side.
00:45 Go to sleep
6:15 Wake up so can prepare more on the D case. Think about it. Don’t get up.
7:00 Decide am prepared enough. I imbibed what I needed the night before. Can recite cases in head. Now just need to speak it from the heart. Hop out of bed and get going.
7:45 Bring Nala with me since this won’t take too long and cleaners need her out of house. Arrive. Park. Walk across street. Thru tunnel. Thru security. Look in cafeteria for something to eat. There is nothing there except candy bars and old Costco muffins. Leave. Walk up 7 flights of stairs.
8:15 Sit on bench. Wait for client. Take a sip from water thermos. He arrives. Wait for courtroom door to open. Bailiff goes in. Wait. Defense lawyers arrive. They look at my client. I introduce them. They graciously say hi and he even more graciously says hi back. Chit chat.
8:50 Courtroom door opens. We enter. Sit around the tables that are covered with trial exhibits, monitors, and other paraphernalia from an ongoing criminal matter. Fridays there is no trial. Time to argue motions.
9:00 Reporter comes in. She is wearing Kelly green coat and studded pointy toe flats. Tres chic. She’s followed by a camera man. The three defense lawyers stiffen then buzz together shocked. Reporter talks to bailiff. They set up. Tummy starts rumbling. Notice there is a small Honeycrisp apple in purse. Go into hall. Eat four large bites which should hold me. Return. Drop half eaten apple in garbage can under the table.
9:10 Judge Jim Rogers enters. We rise. We sit. Before we begin the lead defense lawyer rises and says he wants to tell my client how sorry he and his client is. He is a father too. A very nicely done apology. But why wasn’t it said when we were all together privately in the hall. Or before court was in session. Or before the camera was going.
9:15 Argument begins on the summary judgment motions.
10:30 Argument concludes. Judge Rogers rules that defendant number two stays in the case and the statute of repose does not apply. Takes the other two issues under advisement. Sign the order re statute of repose.
10:45 Reporter briefly interviews client. Leaves.
11:00 Depart court with client. Back to car. Apologize to Nala. Drive to office. Walk Nala. Remove case D from brain. Put P case back on.
12:00 Meet with witness for P case trial preparation.
13:00 Need to eat something. Look in office closet. Pull out caramel almond Kind bar and a handful of trailmix. Nosh. Drink from thermos. Make several calls. Deal with line up on email. Talk to Jesica. Say hi to various people coming by for visits and to say hi.
13:45 Get in car. Let Nala do her business and drop her at the house. Drive downtown to 1325 4th which is State Bar Association headquarters. Miss parking garage. Circle block again. Park. Walk and elevator up. Remove P case from Brain. Put in Mock Trial for seminar case.
2:20 Arrive. Listen to last speaker. Greet moderators. Take lavalier microphone. Try to figure out where to clip it. Jack pockets are faux. Am wearing a dress. Decide to clip it to boot. Say hi to old friends. Try not to get tangled up in cord which dangles under heel. Tuck cord into boot.
2:45 Greet audience. Say – do you want me to explain opening statement and then do a demo or do you want me to just do it (the demo). They chant – do it. So I do it first.
4:15 Finish. Say goodbye. Remove Mock Trial Case from brain. It is 60 and pretty outside. I could walk down a block and go to Veggie Grill for delicious meal. Or I could take Nala for a run. Drive home barely beating rush hour.
4:45 Arrive. Throw on running gear. Feed Nala who is jumping and wiggling for joy. Go for run.
5:45 Return. Pick up some leaves. Defrost lentil soup that Alysha made for me. Shower. Eat soup. Calls with family.
8:15 Pop popcorn in a pot. Only burn half a dozen kernels. Toss with vegan butter and parma (am addicted). Cut pomegranate in half. Go downstairs with Nala. Watch 4 Weddings and a Funeral.
10:15 Take Nala out. Settle down. Look at calendar to see what is happening tomorrow. Turn Sonos to Brian McKnight Pandora station. A couple hours later call it a day.
Photo: Sitting in the hall of the 7th floor of King County Superior Court.
Here is the backstory of how I ended up on Crimewatch Daily. After defense lawyer John Henry Browne accused me of soliciting the media on behalf of my clients.
EB: We will be sitting down to interview Tracy and I wanted to see if your clients would be interested in speaking with us as well?
K3: My clients have elected to focus on the litigation for now and not do any additional interviews.
EB: Thank you for getting back to me. We have interviewed Tracy and her attorney and always prefer to present both sides. If your clients change their minds and would like a voice in this piece as well, please let me know asap.
K3: The children have declined to participate with further media pending resolution of the case. This included 48 hours who wanted to do an interview. And the last king 5 interview they did not participate in either. I do request that you sit down with me so that I can share their side of the story.
The show aired while the defendant, Browne, and her other lawyer Bob Siderius were sitting across from us in our office. Taking the depositions of our clients.
Photo: still from crimewatchdaily.com
One year ago, Seattle experienced its worst traffic disaster. A converted amphibious military vehicle built for World War II went across the center line of our most notorious bridge into the side of a school bus. Five international students were killed and over 50 more students, tourists, and others were injured. Firefighters who performed the rescue operations still become emotional when thinking about the disaster.
At a time when we should be remembering the families of the dead, encouraging and helping the survivors, a media blitz is being waged by the owner of Ride the Ducks.
Now he is entitled to speak and share his opinion. As a former news entertainer he certainly knows how to give a good interview.
But it is upsetting for the victims I represent that he is doing so.
Last month Mr. Tracey filed an affidavit trying to get me to stop talking and sharing. He accused me of bad mouthing his company. His lawyers did in fact obtain a protective order so that I cannot share what is being discovered in this case. But Judge Shaffer also upheld my first amendment rights. So here is what I have to say.
A defendant who is sorry does not claim that the driver of the bus that was hit by his duck – may also be at fault.
A defendant who is sorry does not try to dismiss a wrongful death claim on an archaic legal technicality because a dead student’s parents live in Korea instead of the US.
A defendant who says they are sorry sorry sorry to a reporter but who has never told a single victim in person, by telephone, by email, or by any act or deed that they are sorry – is not accepting responsibility.
A defendant who is truly sorry steps up. He does whatever he can to make things right immediately. He advances funds to help pay the victims’ funeral and medical expenses. He cares for surviving relatives and helps them travel to be with their dying child. He doesn’t let the financial burden fall upon the public.
He doesn’t use the one year memorial as a public relations opportunity.
Photo: Michelle Esteban’s twitter feed
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
Setting: We are in a downtown Seattle conference room. The sky is deep blue. The sun is shining. Its rays bounce like mirrors off the skyscrapers and rippling waterways below us. Eric the videographer is at the far end of the table. Jane the court reporter is her usual excellent self. Cheryl our medical negligence paralegal is by my side. Across the table are the defense lawyers. In front of a gray screen sits the witness. The defense side is somber. I am feisty. We are about an hour an a half into the deposition.
Q. And similarly endocarditis, if not properly diagnosed and treated will be fatal; correct?
Mr. King: Objection. Asked and answered. You may respond.
A. Endocarditis like other things, if not treated, could certainly be fatal, yes.
Q. By Ms. Koehler: All right. In this case it was fatal; am I correct?
Mr. King: Objection. Assumes facts not in evidence. You have a position that he had endocarditis at the time. We don’t have to agree with that. That’s your position. We have a contrary position. So you shouldn’t ask him as if it’s an established fact. (Mr. King is not yelling or even shouting. He’s very seasoned and just trying to put me in my place).
Ms. Koehler: (Becoming theatrical in a totally Elle Woods kind of way) Okay. You’re like making horrible objections, terrible, some of the worst I’ve ever heard. But I’m not going to get mad about it.
Mr. King: I don’t think you should.
Ms. Koehler: I should get mad about it. But I like you. I’m not going to get mad about it. But it’s not proper.
Mr. King: Well, I don’t think your question’s proper for the reasons stated.
Ms. Koehler: Well, my question is not coaching the witness. It’s just a bad question then.
Mr. King: The question isn’t complying with courtroom standard. That’s my problem with the question.
Ms. Koehler: My intent, though misguided, is honorable. Yours —
Mr. King: (He sees where this is going and tries to head me off by interjecting) So is mine.
Ms. Koehler: Your intent is not. You’re trying to interfere with my deposition. Don’t do it.
Mr. King: I’m not trying to interfere. And unless you can read my mind, I don’t know what the basis is for presuming I have a maligned intent. (Props to Mr. King – he can definitely think on his feet. Quite fun to spar with actually)
Ms. Koehler: Coaching the witness. All right. Back to my question which I completely forgot.
Photo: Me with an Italian Emperor
Last evening a senior defense attorney, sent out an email to a large group of about 50 or so attorneys (all on the same case) that announced I was “a forceful and vociferous advocate” for my clients.
She didn’t mean this as a compliment.
Merriam Webster defines vociferous as: expressing feelings or opinions in a very loud or forceful way. Dictionary.com adds the characterization of being: clamorous.
Certainly I have never raised my voice at her or anyone on this case. Indeed I am a fairly soft spoken person in terms of volume. I rarely raised my voice to my kids when they were small. Nor to my pup when she was learning some of my many house rules.
Am I a fighter – yes. But I am no yeller.
This has been a considered decision that involves role modelling after my oh so quiet yet rock solid dad the professor. From what I have seen in life, yelling begets more yelling. If you yell then the recipient will yell back and so on and so on.
So why did she call me vociferous when I am not.
I think it was an attempt to denigrate me. To label me as a termagant before my peers in this litigation. To marginalize my role in the litigation.
I think she and her client are very tired of me. And yet we have only just begun.
Photo: At Portage Bay for brunch – snapchatted by Alysha
I have a job that is part of my soul. This means I fight for my clients with every ounce of my being. Sometimes people (typically those I sue) don’t like that.
The owner of Ride the Ducks Seattle is Brian Tracey. He has been investigating me by reading my Twitter feed, watching tv and reading the news. After completing his studies he filed a declaration to support a motion to prevent dissemination of discovery materials in the 20 cases we have filed against his business for the death and injury of victims of the Ride the Duck Aurora Bridge crash.
Mr. Tracey says that my Twitter feed is: “intentionally inflammatory, inaccurate and to my mind designed to mislead the public about the facts of her case. I also believe these inaccurate posts are part of a broader campaign to manipulate the media to publish stories that amplify these inaccuracies while helping market her law firm’s practice.”
He accuses me of “publishing falsehoods,” engaging in a “campaign to discredit RTDS’ safety worthiness,” casting RTDS in a negative light” by claiming the defense was “citing a federal law that was discriminatory and harbored anti-Asian sentiments.”
To top it off he cites to John Henry Browne’s defamation lawsuit against me on behalf of Tracy Nessl making the insinuation that I must be a habitual defamer.
You can read his entire declaration below.
I was pretty ticked off when I read his accusations. I hurt my knee a month ago and can’t run off steam. So I wrote an opus that went on for about 15 pages. Then slept on it and cut it in half. Ultimately I decided not to defend myself. Instead I pointed out the real reason why the case has been in the news and listed the headlines:
- When the fifth victim died
- When the NTSB preliminarily reported that the left axle housing (on Duck 6) had likely failed.
- When the NTSB preliminarily reported that a recommended fix to the left axle housing had not been performed.
- When the WUTC suspending the RTD operation
- When Brian Tracey testified in front of the WUTC
- When the WUTC announced 463 public safety violations
- When the WUTC fined RTD $222,000 for the violations
- When the WUTC fine was rejected by its three member panel and increased to $308,000
- When the Mayor opposed RTD resuming operations until its unsatisfactory safety rating was resolved
- When a new route was agreed to by the City of Seattle over the Fremont and Ballard Bridges
- When after the suspension RTD began limited operations of its modern duck fleet. “We’re thrilled” said Brian Tracey
- When another duck ran into a car in lower Queen Anne March 31, 2016
- When another duck ran into a car in lower Queen Anne April 5, 2016
- When another duck ran into a car in downtown Seattle June 23, 2016
The Court heard the motion. Judge Shaffer granted the protective order that all photos, documents or other materials collecting in discovery including discovery inspections are to be used for litigation purposes only (and not disseminated to the media). And she added in this language: Nothing about this order limits counsel from, within the constraints of Rule of Professional Conduct 3.6, communicating with the media or from making social media posts or sharing information in public records.
Photo: This is the nefarious tweeted photo of Andrew at the Duck Inspection that resulted in Ride the Duck’s protective order motion
Do you want to see me broken?
Bowed head and lowered eyes?
Shoulders falling down like teardrops,
Weakened by my soulful cries?
Does my haughtiness offend you?
Don’t you take it awful hard
‘Cause I laugh like I’ve got gold mines
Diggin’ in my own backyard.
You may shoot me with your words,
You may cut me with your eyes,
You may kill me with your hatefulness,
But still, like air, I’ll rise.
Poem excerpt: Still I Rise, by Maya Angelou
Photo: In Roma with my crew.