The tale of the blasted brace - a trial diary story

 Photo:  Nick unsuccessfully objecting to my cross demonstration with the blasted brace.

 Photo:  Nick unsuccessfully objecting to my cross demonstration with the blasted brace.

Prologue:  Failure to Mitigate is a legal defense.  The charge here, is the injured person made herself worse by not following doctors orders.

We break for lunch.

I’m out in the hall.  Meeting the parade of C’s own health care providers that Nick is calling to testify in the defense case against her.

At 1:00 a prisoner in shackles is marched in.  The courtroom fills.  Cristina comes out to the hall about half an hour later.  She looks flustered.  What happened.  I’d told her to stay and watch as it would be interesting.

Well, it is apparently a bit brutal.  A sentencing hearing.  The guy beat his girlfriend with a metal pipe.  First fracturing her hands and wrists as she held them up to shield her head; then fracturing her skull.  She’s alive so it isn’t a murder charge.

Judge W comes rushing out to go take a break before we resume.  Looks just as upset as Cristina.  Says – I gave him the maximum possible sentence 28 years.  And strides out the door.

The prisoner comes through next.  Flanked by five officers.  Apparently he assaulted someone in jail.  Not a nice fellow.  Followed out of the courtroom by the woman and her family.  All crying.

We start trial about 20 minutes late.

Nick is calling a physician’s assistant and three physical therapists.   It is never a good sign when the defense calls the plaintiff’s own treating providers.  Here, the reason is that C was told she needed to wear a large brace on her left leg to assist with foot drop and hyperextension of the knee.  But she never followed through.  Over and over again they tried to get her to do it.  But she didn’t.  Plus he wants to pull out paragraphs here and there to show how good she was performing on certain tests.

That is his goal.  And that is what he does.  But the story isn’t over.  Because we get to cross.  Which doesn’t mean that we are trying to impeach or contradict these witness.  Au contraire.

Witness number one: the physician’s assistant.  Nick trots him through carefully selected portions of his medical records.  Gets him to admit C didn’t wear her brace.

Cross time.  I am fiddling with the video (to show some speech therapy).  Get tangled in cords.  Realize I need the speaker.  And apparently begin to drive Nick nuts.  I then pull out exhibit 30, the famous brace.  Objection.  Overruled.  I decide to put it on.  Need a chair.  Am boxed in.  As I try to figure out what to do, Nick offers me his chair.  Why thank you Mr. Scarpelli.   Sit down.  Take off my shoes.  This takes a while because I have little ankle straps.   Begin to strap on the brace.   The jurors stand up.  Smiling.  Trying to get a good look at what I'm doing.

Limp over to the PA witness, but he’s not real familiar with how this contraption is going to work.  Says I should ask the physical therapist.  Good idea.

Limp back to chair. Take off brace.  Ask the court for permission to publish it to the jury.  Nick objects.  Argues - waste of time.  What he’s really saying is – are you freakin’ kidding me, this woman drives me crazy.  Objection overruled.  The jury passes it around as I slowly buckle my shoes back on.

Witness number two:  the first physical therapist.  Nick takes her through the paragraphs of her chart.  Gets her to say C didn’t follow through with her brace.

Cross time.   I am showing her a video of C walking two months ago.  She comes up to the tv.  Uses my pointer.  (Did I tell you that I misplaced my pointer, but Anne pulled one off an old boom box.  It is duct taped.  The judge loves it and always makes a comment about the old chevy it must have come from).   The therapist points at C’s moving image with it.  This brings to life the problem we’ve heard described and pretended to understand.  But really haven’t until now.   I look at her with a smile and ask what size shoe she wears.   Perfect!

Basically I can hear a groan or snort or some sort of gasp for air from Nick’s direction.

Can you put this brace on and show the jury how it works.

Sure she says.

But before she can put it on, Nick loses it.  A major meltdown moment.   In a loud voice he accuses me of wasting time and basically of being a bad lawyer.

This is of course the moment that I’ve been waiting for.  Never thinking it would actually come.  Because lawyers know that no matter how much we may argue, we must always be professional.  Especially in front of a judge, clerk, 14 jurors, 3 lawyers, 1 paralegal, 1 tech guy, my daughter, and several other observers.

Apparently I’ve gotten under Nick’s skin.

When Nick is done berating me, I ask with limpid eyes, in a sweet, soft, hurt voice: why are you being so mean to me, I’ve been nothing but nice to you.

This does not calm him down.

Judge W and the jurors would surely like to break out the popcorn.

He objects to having the therapist put on the brace.  I respond in the same soft, sweet puzzled voice.  But Mr. Scarpelli, the last witness said I should ask this question of PT and that’s what I’m doing.  Objection overruled.

The witness puts on the brace.  The jury stands up to look.  Just like they did for me.  And learns something new.