Trial diary excerpt: The case of the chunk


This trial diary excerpt is from 2011 King County Superior Court.

Trial day 1

Am not smiling as leave the courtroom.  Judge Hill has just chewed me out.  All my energy is turning inward.  Breathe in.  Breath out.  Walk down the stairs to the car.  And leave.

It starts off as a promising day.  The sky is blue.  There are plenty of jurors available downstairs.  The first round is brought up.  19 are excused for hardship leaving 41.  Just in case, a second group of 20 is brought up.  12 of them are excused.  People are struggling to make ends meet.  A somber pall is cast over the courtroom.  Too many people have to publicly humiliate themselves explaining they are scraping by pay check to pay check. 

The judge reads the neutral statement:

Plaintiff claims, on June 18, 2008, he was driving his truck on I-5.  As he passed under the Holgate overpass, someone dropped a large chunk of concrete onto the freeway.  The concrete broke through Mr. Clark’s windshield and struck his right shoulder.  Mr. Clark claims the incident was foreseeable because of the history of the overpass and its location next to the area known as “The Jungle.”  He claims the Defendant State of Washington should have installed protective screening on the overpass and that its failure to do so was a cause of his injury.  Defendant State of Washington denies Mr. Clark’s claims.  It claims that the bridge was properly built according to applicable standards, that there was no need for screening and the only cause of injury was due to the intentional conduct of a third party. 

The jury doesn’t blink.  But I can feel backs stiffening.  The change in aura is palpable.

Judge H then asks the jury two pages of questions that we had hoped to issue via a written questionnaire but couldn’t due to – no time.  She does not ask a single followup question.  I actually approach the bench and ask if she will follow up with the two people who said they had “concerns” as to whether they could be fair jurors in the case.  She declines and tells me I can.

So I do.

Have never jumped out of an airplane.  But can imagine that feeling of catapulting oneself over the edge into a zone of pure fear.  Because that is what voir dire feels like today.  There’s no dipping a toe in first to gage the temperature.  No wiggling around the edges to find a cozy place to begin.  Have to launch right into the guts of the beast.

The first juror who said she couldn’t be fair turns out to be a former attorney general so she is excused.  A no brainer.  The second juror is number 70 something.  Way in the back.  As soon as I read his bio and see him walk in the room I mark his name (on my chart) with red for danger.  Hate it when those predictions turn out true.

He is a former cop.  For something like 43 years.  Die Hard in the flesh.   He may have retired a year ago but he is on a mission.  Nothing is going to stand in his way.  So when I ask him why he raised his hand as not being able to be fair, he spends the next two minutes explaining how he knows the State is wonderful, the City is wonderful, the officers do a perfect job, the area in question has been handled as best as can be, the bridge in question was built according to standards and there is no way anyone is responsible other than the crazy idiot who threw the rock off the overpass.  Judge H then asks the defense if they have any question, they ask one – and he reiterates his platform with even more vehemence.  I ask that he be excused for cause, she asks him a question which results in him restating his platform before she gently cuts him off and excuses him.

After he leaves, a juror raises his hand to speak.  Says he used to be a deputy knows that area well.  He can totally see how someone could throw a rock off it and why it should have a protective screen.  He is trying to say more but  Judge H cuts him off.  Am grateful for him.  We move on.

It is ugly.  As ugly as I’ve seen.    Another juror says bad people do bad things, that doesn’t make the government responsible.  If they had to screen this bridge, that would mean they would need to screen all of them.   That would come out of the pockets of the taxpayers who are us.  This case is “silly.”  80 percent or more of the jurors generally agree with her.  I ask how many have a different viewpoint and 8 timidly raise their numbers.  

How do you move forward when the jurors are condemning the case before it has even started.  Once you launch you keep going.  That’s how.  With all the positive energy you can muster.

There is a nucleus of six jurors who have said they aren’t just skeptical.  They are so skeptical that they don’t think they can be fair.  We are working to help them get excused for cause.  Right at the verge and

What?  No warning and we’re taking a break at 3:30 and court is over for the day at 4:00.

Am disoriented.  Want to rush up to the judge and yell wait and stop everyone from leaving the courtroom.   But don’t of course.

After the jury leaves approach the bench with the AGs and tell the judge – need to finish challenging that group for cause.

And that’s when she scolds me.

She’s mad at me and I didn’t even know.  Focused on the jury, she’s to my back and haven’t paid her much attention for the past half hour.  Well, am paying attention now.

She is talking and I’m still disoriented.  What is she saying.  Am thinking – need to finish the challenges for cause and she’s saying it’s the state’s turn now.  Waaaaaaaah.  But your honor, I was in the middle of challenging the jurors for cause.

She says that if I was to try to challenge them now, would fall short because haven’t asked them proper questions.    I “asked for it” by having them  judge the case before they heard any facts.  It is my fault they are taking these positions.  Should have asked -  if they are given a legal instruction will they follow that despite their beliefs.   Haven’t used those words.

Head is loopy. In a nanosecond am thinking – have we been in the same courtroom.   Am I losing my mind.  Have I done this all wrong.  Is it my fault that the jurors are speaking about their strong biases, calling this case silly and saying they can’t be fair, they aren’t the right jurors for this case.   Have I wrecked the process.  Did I not lay foundation to challenge for cause.  My head clicks back on right.  No. No. No.

Should probably bite my tongue, but am fighting to seat a decent jury for our client.   Say as respectfully as can – your Honor, the tone of the jury’s discussion was set when the cop got up and made his speech at the very beginning. This all had to be addressed at that point.   She doesn’t disagree.  Instead she says – you should have cut him off.


I suppose she’s right.  If I didn’t want to hear the bad stuff and didn’t want the jury to hear the bad stuff I should have cut him off.   But that’s the exact opposite of how I choose to do voir dire.

Ultimately she decides we will end the day after the jury comes back from break.  But I am allowed to challenge them for cause in the morning before the state begins.

And so, I march out of the courtroom.  Focused.  Determined.  Scolded but not repentant.