I leave Nala at home. Today is a half day mediation. At my office. We will be done by 1:00. I can then come home and let her out. She will be fine for four hours.
The mediation drags a bit. Colleen Barrett is the mediator. First time I’ve used her. She was a defense attorney. Had several cases against her. Always liked her.
Slow going. How will we be done by 1.
I have another meeting that starts at 1. What was I thinking. Push it forward to 1:30. This will give me time to run home and let Nala out.
12:15. We are still dragging along.
12:20. Email Anne. Can you let Nala out of the house. This mediation is going to go over and then I have another meeting and Nala needs to go. Give me 10 more minutes just in case we start moving faster.
12:25. We are still dragging.
12:30. Anne comes in. I give her my house key. Write the alarm code down on a piece of paper. One slight problem – I transpose the numbers.
12:45 Miraculously Colleen doesn’t just break the log jam. She pulls a super slick move and settles the case in one fell swoop. Boom just like that.
12:50 We do a few more things
12:55 Colleen has the CR 2A agreement prepared and we are all signing it.
12:56 The alarm company calls to say the alarm has been set off. I tell them no problem. Anne must have tripped it. Put it all out of my mind
12:57 I go to another conference room down the hall. Shake hands with Greg Wallace the defense lawyers. We are chatting.
12:58 Mike rushes into the room and says: Anne is on the phone and says it’s an emergency.
12:58.5 I run to my office, pick up the phone. All I hear is heavy breathing. huh huh huh huh. I call out her name. Can you hear me. Are you okay. huh huh huh huh. She is either having a medical emergency or she’s running.
12:59 Slam down the receiver grab purse, keys and run out the door.
1:03 Arrive at house. Yes that’s right. I live 2 miles away. Park and see Anne kneeling on the front step next to Nala. Nala is wet and covered in mud.
Anne: She’s okay. She came back.
She (Anne not Nala) is still panting. Nala is actually smiling
I come in. Close the gate. Hug Anne and tell her how sorry I am that I asked her to get Nala. The mediation was done on time after all. Anne is still shaking.
The alarm is going off. She shows me the code I gave her. It is of course the wrong code.
I punch the right numbers in. This stops the main alarm. But the alarms on the other two levels of the house are still going off.
I relieve Anne of Nala. Take her over to the side gated area. Enter. Pull out soap. Anne tells me what happened as I wash off the mud. Here’s her story:
Everything was going well until she punched in the (wrong) code. The alarm was going crazy. Nala looked like she was scared (guarantee you she wasn’t scared – you can let a firework off right next to her and she won’t blink if she’s focused on a bird). Anne kept punching in the (wrong) code and it wouldn’t stop. So she decided to put poor delicate Nala in her car away from the noise. She scooped her up in her arms and walked out the door. Made it past the gate. When suddenly Nala started flailing and wiggling until she basically lunged right out of Anne’s arms. The bad girl of course landed cat like on her feet and without so much as a bye see ya, took off like a rocket. Anne started to run after her. This was a useless exercise. Particularly since Anne was wearing slip on wedge sandals. Anne called her name. At least once Nala looked back at her and winked. Or at least that’s what it seemed like. Anne ran back to her car and had just fired it up when Nala came running back.
I finish hosing off Nala. Bring her back to the front. Dry her. Put on booties.
Apologize again to Anne. Try to comfort her. The alarm is still blaring. She shakily leaves for the office.
Call the alarm company which is easy because they just called me. So I hit the call back button. Tell them the alarm won’t go off. They can hear it. Sounds like a smoke detector when the battery needs to be replaced but ten times louder. Beep. Beep. Beep.
Explain what happened.
Alarm company tells me we will need to turn it off. Run downstairs. First need to unscrew the breaker. The breaker is in the ceiling. Get a step stool. Mount it with screwdriver in hand. Try to unscrew the screw. Strip the screw. Partly this is because of technique. And because I can’t see it. The aging process strikes again. Hold on I tell him. Descend ladder. Run up stairs. Find reading glasses. Run back downstairs. Back up on ladder. Yep. I stripped it. Back down ladder. Dig around in box. Find $9.99 black and decker electric screw driver. Battery is dead. Connect charger to outlet and look for corresponding hole on screw driver. Can’t find it. The guy thinks I’m an idiot. Finally find it. Wrong hole. Finally find it. Back up on ladder. The screw driver turns the wrong way. Figure out how to reverse. Jam into stripped screw. It comes out half way. Rip it out the rest of the way and unplug it. The beeps stop.
It is 1:35. Am late for the next meeting.
Speak in Sun Valley at Idaho Trial Lawyer Convention in the morning. Then on a panel in the afternoon. Leave at 3:30. This means I cannot fly direct to LAX because that plane is gone. Instead have to fly back to Seattle to then fly to LAX. Arrive at 10:45 p.m. Taxi to The Line Hotel. Arrive at 11:30 p.m.
There’s a reason for the name of this hotel. There is a line wrapped around it. Slide through crowd of young people. Hotel lobby is pitch dark and throbbing with people and music. I don’t mean the club area to the side of the building. Or the bar past the front desk. I mean the actual lobby. As soon as I walk inside am surround by clubbers. Which if I hadn’t gotten off an airplane I might have been more pleased with. But I am a grump.
Wait for front desk to check a woman’s purse so she can dance unencumbered. They give her a bag tag. My turn finally. Pretend smile. Check in process occurs via sign language and reading each other’s lips. It is too loud to speak. Go up to 5th floor. Open door. Very hip. Stripped to concrete walls. Lots of outlets for electronics. Low slung furniture. Bathroom vanity hits me mid thigh. Really tall people would have to bend over double to turn on the faucet. I am 20 years too old for this hotel. Okay. Maybe 30. Ceiling to floor window fronts Wilshire Blvd. The main street. Look outside. Can see and hear everyone in the line and every car cruising the strip. There is also a joint in the road that makes an extra special crunch sound every time a car passes over.
Consider going downstairs to change rooms. But am too irritated. The cacophony of sound bounces off the unforgiving gray cell walls. I look up the white noise station on Pandora. Waterfall. No. Rainforest. No. Settle on Springtime showers. Turn it on via little portable speaker. It can’t drown anything out. Pull out iPhone ear buds. That doesn’t work. Pull out running ear buds that fit a little tighter. That doesn’t work. Turn up the white noise. Hello. Loud white noise is not white noise – it is just noise. This means that I stay up the entire night. The party road does tone down around 4 or so in the morning. But by then I’ve given up. They are going to get a bad review on Trip Advisor.
Next morning walk from the hotel to Southwestern Law School. 7 blocks away. It is already 75 degrees. The school is in a magnificent art deco building. Take the elevator up. Am speaking to the National Police Accountability Project. Spend a delightful three hour morning presenting on voir dire, opening and case themes. Afterwards one of the attendees asks for a sample complaint. I write complaints like opening statements. Filled with details and structured the way that makes the most sense to me. So here it is. Complaint FINAL
Photo: At Southwestern Law School getting ready to speak to NPAP
June 1, 2016 3:31 PM
Hi Karen, I recently came across your post on “The Velvet Hammer” blog describing purported excerpts from John Henry Browne’s emails to you during communications over the lawsuit involving Tracy McNamara. I am interested in speaking with you about this when you have some free time. Please give me a call. Thanks,
Lewis Kamb, Reporter The Seattle Times
June 1, 2016 7:00 PM JHB to VH
So honored you included my in your Blog, so sad you need to promote yourself. The press big time local really wanted to know if you had trademarked your self appointed moniker !!! I gave them the full sad story about you creating your life rather than just living it. They will do a story, expect a call. Reminder you started this. Velvet “Clamor” was not a typo. Best. John.
June 1, 2016 10:01 PM VH to JHB
That blog entry was written because I decline to bear your continued threats and insults in silence.
June 2, 2016 12:21 PM JHB to VH
I hope you take this seriously. It is very sad you need to broadcast your personal angst via a blog. I suggest a journal. This blog makes you look like a fool, and was taken that way by the reporter. I am truly sorry about your Mom we only have one of those. I have a pleading I will send to your registered agent… I don’t want to be accused of extorting your firm again. In trial now. Will get pleading to (you) next week. Your blog just makes me look good, thanks John.
June 2, 2016 1:02 PM VH to JHB
You can stop writing insulting emails to me any time now.
June 2, 2016 1:08 PM JHB to VH
No problem, but if you include me in your pathetic blogs, then you start it, get it? Have a nice day. John
June 2, 2016 1:32 PM VH to JHB
You can stop writing insulting emails to me any time now.
And that is how Lewis Kamb’s article came to pass.
Further you affiant sayeth not.
Photo: The front page of Tuesday’s paper taken by Catherine Fleming
On Monday I called an attorney an A_S.
Now you may be thinking Karen Karen Karen. But I didn’t lose my temper. I stated a fact.
One day when I came home from work many years ago, the nanny smiled and said – your daughters told me that yesterday you said the S word. Cristina, Alysha and Noelle started giggling. Raised their little eyebrows. Waited for Marlenee Beenee (actual name Marlene) to scold me. Or better yet – as she had done to Alysha – wash my mouth out with soap.
Now I had been a prolific cusser as a young adult, but had stopped cold turkey way before the kids were born. I looked at Marlene, smiled and said to the girls – tell her what the S word was. They hesitated, not wanting to get into trouble for saying it, realized they had permission and yelled in chorus: Stupid! She said Stupid!!
I suppose the A_S word is not exactly a cuss word. But it was mom’s primary expletive. And one that usually ended with the modifier – hole.
But let’s start at the beginning.
I am in a case where the opposing counsel is a very well known criminal defense lawyer initials starting in J and ending in B. Middle initial H. Here are some of the things JHB has written to me over the past six months. Typos and all.
- Karen. Some whack job is sending out emails in your name.
- …who was Karen’s writing instructor James Joyce.
- …just struck by Karen”s late night STRANGE email
- …when you asked if T had “cosmetic surgery” I was going to object but thought you might be looking for a referral.
- Do you have a mirror.
- But I look so much younger than you!!!
- I will take the high road on your sophomoric comments
- I can always take advice even if condescending
- [comparing me to Margaret Thatcher] …the fact she died friendless and they took her portrait off the wall at Oxford, at her University (I went there) is also something you can relate to, sad.
- Face book is for insecure, narcissistic fools. I don’t need to attract attention, I just do.
- You may think this all good fun but twice now you have invoked my age. That will be part of the Bar complaint 🙂 maybe you should think before you write!!!
- You must be living a very sad life needing virtual friends. I just hope and pray you are better prepared for the next deposition, your last performance was embarrassing.
- Stop trying to be funny, you are not just TRY and be professional
- Get some help
- I am drafting complaint against you and your firm….
- Don’t you get it I am done with you. Please leave me alone.
- I assume by your snarky remark we will have to do this without cooperation and we will.
- I said as a “courtesy” not surprised that word escapes you.
- get a life, a real one not a virtual one, you know real, not pretend. try to earn your reputation not create one “velvet clamor” and all, it is quite sad.
And so, in honor of mom, and because it was the appropriate response to JHB’s last insulting email written three weeks after her death while I was (and am) still grieving, I wrote:
John – you are an ass.
Photos: The flowers Ann Rosato gave me in honor of my mom’s death and the cards.
A week after writing the post, JHB read the blog and sent this email:
So honored you included my (sic) in your Blog, so sad you need to promote yourself. The press big time local really wanted to know if you had trademarked your self appointed moniker!!! I gave them the full sad story about you creating your life rather than just living it. They will do a story, expect a call. Reminder you started this. Velvet “Clamor” was not a typo. Best John.
That blog entry was written because I decline to bear your continued threats and insults in silence.
December 26, 1933 – April 26, 2016
I haven’t answered phone calls. Or returned emails or texts. I’ve just stayed in the cocoon of our close family. My sisters and brother, our children and in laws have been grieving together and working together in preparation for mom’s celebration of life this weekend. It has all been quite hideous and wonderful all at the same time.
Mom’s obituary details an amazing life. Chinese immigrant parents. The seventh of eleven children. Third woman to graduate in chemical engineering from the U of Illinois. Going to UW Law school with two babies and graduating three years later with two more plus being 7 months pregnant with the fifth.
This is mom’s law school class. She received an offer from a big downtown firm upon graduation, but wanted to be closer to her family. She first worked for a grumpy old man lawyer who pretty much terrified me. After a few years she left him and opened her own general practice a few miles from our house. She was very high energy and slept 3 to 4 hours a night. Her favorite time to do laundry was at 2:00 a.m.
Mom was the most untraditional person I’ve ever known. The phrase: she walked to the beat of her own drum – is an understatement. She was a true Maverick in every sense of the word. She always believed she was right. She never gave up. And she fought like heck for everything. I once watched her sock a lawyer in court because he pushed her. The judge heard about it and after emerging from recess scolded the two of them.
In the 60s through the 80s when mom practiced law, she experienced racism and sexism. She could care less unless it was from a judge. This is because the judge was supposed to be fair and impartial. And because he had the final say like it or not. Otherwise if it was from opposing counsel or their clients she either ignored it or went into attack mode.
She loved people and would not give a second thought to starting up a conversation with a total stranger. To the contrary, she would attend any public meeting or function where she could go meet even more people. When we were children this embarrassed us to no end. As we grew into adults it still did periodically. She felt completely connected to people and did not need time to warm up to them. She had no boundaries whatsoever and would talk about whatever was on her immediate agenda. Whether the recipients liked it or not.
As she grew older mom became more unique. She introduced a bit of magical thinking into the equation. Being such a brilliant person, it was interesting to watch people trying to follow her train of thought. She felt she was on another sphere of intellectual and spiritual being and she was right.
Three lessons I learned from mom were: 1) tell the truth even if bluntly; 2) be strong enough to fight for what is right; and 3) always be there for your family.
Mom had many other sayings and pieces of advice. This collection comes from memories of my childhood:
- sticks and stones may break my bones but names can never harm me
- to be Eurasian means you are the best of both worlds
- ignore them – they don’t know what they’re talking about
- eat everything on your plate – there are children starving in (fill in the blank)
- your hair needs to be cut
- what is that stuff (makeup) on your face – you don’t need anything
- beauty is skin deep
- women can do anything men can do and usually better
- stand up straight
- don’t slouch or you’ll grow a hump
- you have your grandmother’s hands
- tell them you can see better with your four eyes than they can with their two eyes
- next time he socks you, sock him back as hard as you can
- it’s a natural bodily function
Perhaps the most wonderful quality of mom was her brightness. I cannot remember seeing her depressed. If she felt down she didn’t show it. If she was unhappy or upset she did not cry or mope. Instead she came out swinging as hard as she could. Granted if you were a victim of her wrath, it was no fun. But mainly mom was elated with life. Whether it was beating someone in a game, winning a motion, playing with her grandkids, getting a great deal during her bargain hunting, predicting something correctly or eating an ice cream cone – she laughed and crowed and whooped in utter delight.
We will miss her forever.
Photos: (1) our family archives; (2) my partner Paul Whelan dug this up for me the day after she died; (3) mom and the five kids.
This week we celebrated Clare’s 30 years of service to the Washington State Association for Justice. I met Clare when it was named WSTLA – the trial lawyer’s association. The entire time I’ve known her she’s run the legal education department.
Of all the committees I’ve worked on over the years, WSTLA/WSAJ CLE was my favorite.
One of the side effects of being a critical analytical trial lawyer, is that we are willing to turn the lens on ourselves. We are like professional athletes in that we are only as good as the last trial or arbitration or mediation or whatever. We can have a superb result. Feel the glow. And abruptly lose the next case and consider ourselves to be crap. So we are hungry to learn how to be better. Clare has worked with all of us to put on some of the best programs in the country. This included the first How to Hammer Allstate program (brainchild of Pat LePley). I can still remember the Colossus program where we had with over 300 people attending. We were one of the first to have a full day with Paul Luvera, Rick Friedman, and Paul Stritmatter. And then of course there were the conventions.
Gerhard figured out that Clare has put on over 500 seminars. And she isn’t done yet.
What always has impressed me about Clare – is that she never loses her temper. Us lawyers are terrible at turning in our assignments on time. She would fib to us about deadlines knowing we’d be late. And even that wouldn’t work. People would forget when they were speaking. Or where. Or in probably the worst case – the keynote speaker at one of our conventions showed up and left after an hour and a half when she had been scheduled for four hours. Through it all, Clare just smiles and gets it done.
Here’s to you Clare – thank you for 30 wonderful years and many more to come.
Photo: Clare at her surprise 30th work anniversary luncheon next to Gerhard.
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.
Where the heck have I been. Well, I started writing a book. I write it mainly when on airplanes. Decided I wouldn’t blog until the book was finished. But then changed my mind.
Since the last time I wrote here, we moved our office three miles down the street. We are in the top floor of a 1970s fishing company building that we bought and are in the process of refurbishing.
My partners were only too happy to let me take on the job of working with the designers/architects to fashion our new offices. Not only did I pick out everything from the kitchen sink to the paint colors and flooring. But since we have moved in I have micromanaged the décor to such a degree that I have literally hung every single painting. I have a level, hammer, and tape measurer in my closet. And haven’t created too many extra nail holes. None of my partners were clamoring to do this design work. But instead of feeling put upon or negative in any way, let me tell you – I am absolutely pleased as punch. I totally got my way.
My own office has been spruced up with a giant pop of color. Exhibit A is Nala who happened to get her hair done just before it was time to strike a pose. Hence the pink ribbons that match the pink carpet that match the even more pink chairs. You will gasp with delight when you see how cute this all turned out.
Whenever possible I like to visit with clients and lawyer friends in my office versus a conference room. Have never been a big fan of the “power desk” set up. Where the lawyer sits looking awesome and majestic on one side. The little people on the other. I sit on a ball. Plus there’s Nala. So I created a set up pretty much straight out of Mad Men. Now when we have meetings, we sit ensconced in velvet splendor around the coffee table. Under a black art deco chandelier.
We as lawyers spend so much time at work. There’s no reason we should not make it all as homey and comfortable as possible.
Photo: Nala catching some rare Seattle rays on the pink carpet.
Ms. A (she of the 257 objections ) is defending another deposition. This time of an electrical expert. Her stream of objections has not changed course since Mr. T’s deposition.
I challenge her on the record. This is to satisfy CR 26i should I decide to bring a motion:
K3: What’s wrong with the form? I think you’re being abusive with the objections.
A: You’re not setting a foundation, you’re just saying — you’re making conclusory statements and then asking him about it. He has nothing to say that —
K3: I mean, what the heck was wrong with that question? The foundation was page is 118, we’ve been talking about it. I don’t understand. I want your objections to slow down or stop, I don’t want them to continue. So if you want to educate me with what was wrong with that question —
A: I just did.
K3: I just heard it. It as a clear question and it was a clear answer, and you objected for no reason.
On top of that, it turns out the defense has forgotten to provide me with 8 of the 9 CD Roms of material provided by the expert. We recess. I bring a motion for “order instructing defense counsel to cease interfering in deposition with improper ‘form’ objection.”
In response, the defense charges that I have filed a frivolous motion, made for the improper purpose of harassment, and requests $2,000 in sanctions.
This ticks me off. Makes me upset. Makes me think bad things. And even makes me worry. Am I out of my mind. Don’t I know the difference between a good and bad objection. Will the court be upset that I’ve brought another deposition abuse motion. No – I need to bring this motion. If I don’t she’s going to continue to think she’s doing it right.
I go for a run.
I did not ask for sanctions when I filed this motion. Didn’t ask for anything other than an order telling the defense attorney to knock it off. I’m going to stay on high ground. Not stoop to swing back. I write the reply brief in as calm a tone as I can muster.
The Court grants my motion and also elaborates as follows:
“The court grants the motion that motions (sic she means objections) as to form are too indefinite at times to rule on and interfere with the flow of questions and answers. (The court notes that Mr. L’s materials were woefully incomplete which is a much more serious matter of delay and confusion, violating prior orders of the court). Plaintiff’s first example (“when was the first time”) is well founded. The second example, (“well you asked him”) is not well taken as abusive, because the witness didn’t know if it was volunteered or asked. But, SO WHAT!!
Save your strength for something important. “Form” objections are not helpful to parties or court and can lead to confusion or coaching. Objections such as foundation, compound, asked and answered, and vague are permissible. Defendants shall pay expenses of this re-do continuation of Mr. L’s deposition.”
Motion and Order: SKMBT_C55215082111290
Photo: Dan wore this outfit to our last attorney meeting. I want his shirt.
The Tale of Mr. T has one more chapter. Following part 2 of his deposition, I am on a seminar panel for AAJ in Montreal along with Federal Judge Bennett. He is talking about his now famous order sanctioning a national defense firm for deposition abuse. His speech is exceptional. He urges us to not be content with the minimum bar set by court rules . To strive for a higher ethical standard. He is inspirational on so many levels.
As he’s talking, I’m thinking – hey. I just suffered through that.
In Mr. T’s secnd deposition, new defense counsel objected excessively. It is so notable that after the transcript arrives, John counts them and re-counts them. 257 by this defense attorney (not including the objections from Mr. T’s personal attorney). In a transcript that is only 150 pages long.
I have plenty on my plate. But am moved by Judge Bennett’s call that we insist upon protecting the integrity of our proceedings. So I stay up late and write a motion to strike and remove those objections and to have the defense pay the cost to edit the video. This is met with a vehement response from defense counsel. Charging that the motion is frivolous and ” an inappropriate and mean spirited personal attack on defense counsel and another attempt by Plaintiffs to turn this into a side show.”
Ultimately The court partially grants and partially denies the motion:
Ins. Co is correct that parties have not met and conferred, insofar as they have not designated which part of deposition will actually be used at trial. Court will not strike all objections by Ins. Co; although many of the “asked and answered” might be sustained, many of the “form” objections would be denied. Until record is determined, court’s ruling would be confusing. After record if finalized, costs of editing will be shared on this video dep.
The table has now been set. This counsel and I have one more deposition to finish. Will she heed the lessons inherent in the court’s ruling. Or will she not. Stay tuned.
Motion and Order: SKMBT_C55215081913590
Photo: Nala Objecting