Trial Day 62: If We Could Turn Back Time: Closing Argument Ride the Ducks Trial

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Thursday January 24, 2019

Jesica has marked off our half of the courtroom to reserve it for cocounsel clients, members of the law firm, and people who want to cheer us on.  Defense counsel ignore the signs and line up behind Jesica.  

 Andrew shows me some of the transcript from yesterday.  Since I tactically missed it.  They are complaining about the second screen.  Conspiracy theorizing  am trying to block their view of the jury or vice versa.  So the judge tells them to move over next to us.  It’s even pettier than that though.  Remember the lego wall we built to keep them at least symbolically on the other side.  Well they have been stressing about that wall ever since.  They start to complain to the court that I might do something with legos during closing.  She shuts them down.  Seriously.  They are in a tizzy over a screen and legos on the eve of closing.  Gawd.

 There are many faces in the courtroom.  Cannot  quite focus on them.  Am zeroed in on mission.  As walk up the aisle see Alysha.  My mother’s heart gives a happy beat.

Drop off bag.  Start hooking up gear.  Cord on the projector is not long enough.  Jesica is befuddled.  Cannot think about it.  Must keep calm.  She figures it out.  Andrew is in the library working on the verdict form.  The numbers in the grid done yesterday were not quite right.  Had him double check them and so he is now revising them.  Everything has to be in order.

Judge Shaffer enters early.  How long will we go.  We must be done Friday even if the jury is kept late but today we have to end on time.  Should we carve a little from the lunch break.  She looks at me expectantly.

Have been working on closing but never actually practice it.  Have no idea how long it will take.  The number four sounds good enough,  We agree to take 15 minutes off lunch.

Jury files in.  Do not meet their eyes.  Have not met their eyes ever.  Judge’s orders.  Except for when on the courtroom stage.  Judge Shaffer reads the instructions.  This takes 1 hour and 20 minutes.   There are instructions on regular things.  Then highway design, product liability act, enhanced injury, common carrier, and of course different sets of instructions for 40 plaintiffs.  The defense lawyers are squeezed tightly against our small corner.  Can feel them watching.  Wanting to get a preview of what is to come.

Oblige them by doing nothing.  Computer turned to blank.  Sit still.  Honor Judge Shaffer as she reads the instructions.  Listen to them for the first time all together.  The words spoken calmly clearly and with the inflection of a judge who takes delight in her job.

Ms. Koehler she says.  Stand up.  Greet everyone.  Realize the correct slide is not yet on the computer.  Think: must work on telepathy technique.  Expect everyone to read my mind.  Try not to stare too hard as Jesica pulls the slide.   This is not her fault but mine. Could start without it all being in order.  But then it wouldn’t be right.  There’s nothing wrong with waiting 30 seconds to get it right.  My dear friend Judy Shahn is in the court.  She is a voice coach who has taught trial classes with over the years.  One of her lessons is not to start until you are centered and on top of your breath.  And then just like that the moment passes.  The two screens are filled with the two boards of all of our plaintiffs.  Begin.

Two weeks ago while running with Nala came up with the idea of how to structure closing.   It had to do with the proximate cause instruction and the defendants’ increasing numbers of legal briefs trying to insert instructions that would confuse that already poorly/legalistically worded instruction.    Two words have always made sense to me when explaining the concept to juries: but for.   Passing through Kerry Park.  Watching the twinkles of the city.  Listening to Madonna Live don’t ask me why but Cher popped into my mind.  Her song -  If I could turn back time - began playing itself in my head.  This all led to the opening that was delivered today.

Step one was to listen many times to Cher’s record.  Step two was to build a PPT in reverse.  The first slide was the recall notice that was issued after the incident.  The second slide was the NHTSA consent decree issued before the recall notice.  Ryan even reversed the video of the duck hitting the bus and the students getting on the bus.  Everything was in place the night before closing except for one thing.  Took Cher’s lyrics and re-wrote them.  Was going to sing to the jury but Alysha interceded: don’t sing mom.  And that was that.

 Read them from a slide otherwise filled with beautiful Claudia Derschmidt skiing in Austria.

Pull out a brass clock.  And turn the arms so they are going in reverse.  If only this.  If only that.  If only...    When that is done we go through key jury instructions.  To explain the government’s duty recite a small poem called: A Fence or An Ambulance.  It was written in 1895.  Paul Luvera gave it to me after reading one of the juror’s questions.  Then it is time for lunch. Jury files out.

How are you doing says Judge Shaffer wanting assurances.  Have no idea how long it will take to go through 40 plaintiffs.  Tell her we are right on schedule.  She never pressures me exactly.  She wants us to be on time.  But has also said she will not restrict us.  See Sol, my son in law over to the side.  Happy to see him.  At the same time Cristina comes up behind me.  Turn around to greet her.  She’s holding Liam.  This child was born two weeks before trial which means he’s four and a half months old.  Oh my baby.  Hug and coo and kiss. Anne my other paralegal comes rushing forward to see little darling.  Spend the rest of lunch time pretty much hugging on my children and grandchild and saying hi to so many good friends and co-workers who have come to show support.  Greet co-counsel who have brought their office mates.  Or flown in.    Do no more work on closing until Andrew grabs me and says: do you want to see the verdict form.  Sounds like a good idea since we will be going through it.  We huddle.  Make some changes.  Eat remainder of delicious Macrina orange hazelnut pinwheel that Alysha bought for me this morning.  Plus insufficient hummus cup.

The Text of closing has been reprinted by the Washington State Association for Justice. It is here:

Photo: Poem mutating Cher’s lyrics. And beautiful Claudia Derschmidt.