Trial Day 4: Anticipating the Defense - and a judge's smackdown (not of me)

Trial day 4

October 15, 2020

Did I tell you that Steve F. got in trouble yesterday.  Almost enough to satisfy me.  But not quite.

In the middle of damages opening. Tell the jury that the defense expert doctor is going to say the Decedent did not feel pain after he was burned.  Steve is hopping up.  Objecting on top of my sentence.  We aren’t calling any such witness - he charges.  Judge Parisien calls a non-socially distanced sidebar in the corner of the conference room perfectly in sight of everyone.

Rewind a year ago.  The defense late identifies Dr. Brones, burn expert from California.  Am going to take his deposition in LA and see my sister Susan at the same time.  Covid occurs.  Wait several months and take the dep by zoom.  Dr. B says Mr. P suffered 3rd degree burns and therefore was insensate.  I say: what about when he was screaming for his co-workers.  Shock and anxiety he says.  The deposition is gag worthy.  But plow through it.  Listening to his boorish mantra over and over and over again.

Later but before trial I poke the defense about Dr. Brones.  You aren’t going to call him.  Are you going to call him.  Please do.  I really, really hope you’re going to call him.  When Mike comes to see me to try to settle the case a week before trial  tell him to make sure Steve and Blake call Dr. Brones.  There’s no way they can call him – we all know this.

In opening need to anticipate the defense.  But also don’t want to anticipate what they are not going to do.  So the first two days of trial ask them flat out: are you going to call him.  Day one they prevaricate.  Can’t quite tell – are they or aren’t they.  Day two corner Mark: are you calling Dr. Brones or not.  He says right to my face: yes we’re calling him.  Acting all confident. 

So in the middle of opening, as am telling the jury what their doctor is going to say, am irritated that Steve is objecting.  As we stand in the corner say – your honor.  I’m allowed to anticipate the defense.  Yesterday Mark told me point blank that were calling this doctor.  Steve says: no we didn’t.  We did not say that.  Judge P looks at us both and says: if the defense is not going to call him then I’m going to sustain the objection.  There is no record and I will take the defense counsel’s word for this.  Fume.  They retake their seats.  I turn.  Get head right.  Pivot.  Explain to jury one of their jobs is to assess pain and suffering and that’s another reason why we need to go into these details.

Openings end.  Jury is excused.  Judge is getting ready to leave.  Say: your honor we need to put that sidebar on the record.  Yes she says and apologizes.  At that point, Mark stands up: your honor I want you to know that yesterday I did in fact tell Ms. Koehler that Dr. Brones was going to testify.  Judge sucks in her cheeks.  Says: Well – if I’d known that I would have overruled your objection.  Steve gets up to say something and she shuts him down.  Lecture time.  It feels relatively good.  But not good enough to make up for swiping at my credibility in the middle of opening.  On the other hand, the jury probably figured out they did have an expert whom they are not now calling.

…

Dave C a mechanical engineer from Defendant is the next witness and my favorite. Judge gives him a head start to put on the plastic mask.  He is examining it.  Bends down to look for instructions on the box that sits on a little table next to his chair.  No instructions.  As the jury walks in he is still fiddling with it. Ray begins the exam.  Dave is talking.  But all I can do is try to figure out why that mask looks so wonky. 

He’s done something weird with the strings.  One white string sits across the bridge of his nose above the mask.  Another string is directly on and under his bottom lip. Knot and two strings dangling inside the plastic.  When he talks the knot moves.  He is trying not to open his mouth too much to avoid the string. Predictably it falls down.  His nose is red.  Raise hand. [Note: such a tattler am I].  Your honor: the witness’s mask is unseated.  She tells him to move it back into place.

In that moment it dawns on me.  The elastic strings are both supposed to go behind his head. Instead he has used only one as if it was meant to secure the whole thing.  Looping both ends of it around the ears.  That’s why there’s a whole other string on top of his nose and gagging him. 

Here are some things that are interesting regarding Judge P and other covid trial related oddities:

·       Judge P allows direct, cross and redirect.  This is so refreshing.  So wonderful.  Used to have a brief asking judges to not allow recross, re-redirect, and re-recross to no avail.  She is firm and it is wonderful how much crisper the trial feels. 

·       When asking jury questions – she instructs the witness to only answer the question and not elaborate due to the rules of evidence.  This results in short answers often yes and no.  Again a nice feature that heads off the witness from grandstanding.

·       If we call a witness the defense has to get all questioning done – due to covid they won’t be allowed to call them back. 

·       There are too many people in the room.  The defense had said there would only be two plus client.  But there are 4 plus client. And Corey from Prolumina is trapped back there too. 

·       The plaintiffs are 4 adult children and the mom.  Judge says not all of them can come inside the room.  Only two at a time.  The others need to stay out in the hall. And they will keep the doors open.  She will get chairs for them.  But we already know that you can’t hear what’s going on inside the room if you’re out in the hall.

·       There are no recorded courtrooms.  They have brought every available former staff court reporter back to work.  But there is only one court reporter.  This means that our daily transcripts will be every other day transcripts.  48 hours turn around. (which ends up being more like 72 hours if we’re lucky).

·       As we add exhibits, we are to load them into the court’s sharefile folder.  So when the witness writes a diagnoses on the whiteboard.  I snap a photo.  Send it to Krysta.  And she emails it to everyone and uploads to sharefile. 

·       If you want to hand a witness anything you have to wear a glove.  The clerk has a box full of dark blue ones.

·       So far we have not gotten a list of daily exhibits.  We are keeping track of them on our own.

·       All four courtrooms are in use.  This creates inability to social distance in the morning when everyone arrives and is jammed up at security.  So they are staggering start times. 

·       Clear masks are the hardest to hear.  The sound is trapped inside the plastic.  The lower the voice the easier it transmits.  The higher and faster the speech, the more problematic.

·       They have upgraded the ventilation.  It is chilly.  I’ve brought in a blanket.

·       Corey is impressive.  When Ray asks for an exhibit, Corey pulls it up in a second.  Then in sync, without prompting, enlarges and highlights the sections and sentences Ray is reading.  There is no lag time.  When the court’s zoom laptop fails, Corey has a spare and to the bailiff’s relief handles it. 

 Photo: Trial day 4