Should the dead person have been allowed to tell the story
I told my kids a lot of stories when they were little. Pictures were good and well. But what they really liked was when I acted out the characters.
In trial opening is the opportunity to tell the story. There are no rules that say we need to read it and be boring. Over the years I have ben a bus, a cross walk, and other various objects or people when I've told the opening story. But look what happened in this case. The judge was not used to having a story told with quite as much dramatic flair.
What follows is an excerpt from my trial diary:
Trial day 3:
There’s a lot of muscling around today.
Opening statement and we’re going for the gusto. Kevin (my law partner) starts off and he IS chrysotile – an asbestos fiber. He does a splendid job. He doesn’t act light hearted. He is after all, a very dangerous and deadly fiber. He explains how industry has know about the danger of asbestos for over a hundred years and yet how Domco Texas decided to use it anyway. It’s my cue and here is what happens (verbatim):
Ms. Koehler: My name is Jim B. And I was born in 1942 in Seattle, Washington. My entire family lives here. They are from here. In 1960, I graduated from Ballard High School. I wasn’t a perfect person, I have never been a perfect person, I would never tell you I’m a perfect person. But I have lived a full, full life…to a certain point. I have been married before I married Colleen...
Ms. Loftis: You honor, I do have an issue for the court.
The Court: Want to state your objection?
Ms. Loftis: Sure. I think it is inappropriate for counsel to put herself in the place of the plaintiff, especially in light of the rules – the rulings in this court pre-trial.
The Court: All right. Let’s focus on what the evidence is going to show, counsel, in opening statement.
Ms. Koehler: Your Honor, I am –
The Court: Please proceed with what the evidence will show. (stern knitted brow look)
Ms. Koehler: That’s fine. Turn to the jury and start over. There are three wives before me. My name is Colleen---
Ms. Loftis: Your Honor, I think it is inappropriate for the same reason.
The Court: Sustained. Let’s just talk about what the evidence will show, let’s address damages. (stern knitted brow look)
Ms. Koehler: Yes, your Honor. Turn to the jury and start over. Mr. B graduated from Ballard high school in 1960…
Last night when I decide to take on the dead man's persona to tell the story, I consider whether the fact that I will be channeling a dead person will draw an objection. I’ve previously researched this issue and there is no law that says I can't. This morning, Judge H tells us (right before the jury comes in), that he does not like side bars [where the judge and jury talk outside of the jury's presence about technical issues]. Instead he likes to deal with objections for the most part in front of the jury but he will not allow speaking objections.
What he doesn’t advise, is that he doesn’t allow anything other than the word "objection" to come from my lips. I am terminated with a "look" in the midst of asking for a sidebar. I am fully prepared to challenge defendant’s grounds for the objections. But the judge’s look is unrelenting.
So I change from the dead person. And morph into the widow which is shot down yet again. Finally the jury watches me morph to pure storyteller. Is this a good or bad thing I wonder, that they can see me change personas. Snap. Like this.
Afterwards – as in at 4:00 pm after the jury has been excused- the judge permits me to make a record. I explain the “golden rule” that defense is ballyhooing about, doesn’t apply. I didn’t put the jury in the shoes of the decedent. I stepped into them myself.
The court says: “I sustained the objection because there’s a fine line between presenting the facts and arguing. It is a fuzzy line but this court generally gives parties a great deal of leeway and in this case the court did in terms of making a lot of emotional arguments. The court felt that by putting yourself in the first person that you crossed the line and converted an opening statement into an opening argument and that is the basis for my ruling.”
At which point Kevin the Asbestos Fiber pipes in - so you’re fine with us using the first person in closing - to which the defendant objects and the court says he will entertain briefing on that.