Washington Trial Law

Twitter?

rboggs@lyon-law.com (Robert Boggs) — Wed, 07 Jan 2009 21:45:14 -0800

As you can see from the date of my last post I have been on another planet for awhile. More on that in a future post. Having returned to earth I have discovered this thing called Twitter where you can create a text message of no more than 140 characters and then send it out to a few or a million recipients. Today I read a post at Deliberations (the post was old - I have a lot of catching up to do) that reporters are sending "tweets" from the court room giving blow by blow reportage on jury trials. Even the Spokesman Review in Spokane is into the act. For those who like to watch jury trials this will be like listening to a baseball game on the radio - well almost.

Cousin Vinny lays a foundation.

rboggs@lyon-law.com (Robert Boggs) — Thu, 27 Mar 2008 11:12:11 -0800

I attended a seminar yesterday and learned something interesting. Professor John A. Strait of the Seattle University School of Law informed us that in the movie "My Cousin Vinny", Vinny (Joe Pesci) correctly lays the foundation required by ER 702 to quailify his fiancee Mona Lisa (Marisa Tomei) as an automovie expert. I could not find the "transcript" of that part of the trial, but here is the District Attorney doing his best to challenge her qualifications:

D.A. Jim Trotter: Now, uh, Ms. Vito, being an expert on general automotive knowledge, can you tell me... what would the correct ignition timing be on a 1955 Bel Air Chevrolet, with a 327 cubic-inch engine and a four-barrel carburetor?
Mona Lisa Vito: It's a bullshit question.
D.A. Jim Trotter: Does that mean that you can't answer it?
Mona Lisa Vito: It's a bullshit question, it's impossible to answer.
D.A. Jim Trotter: Impossible because you don't know the answer!
Mona Lisa Vito: Nobody could answer that question!
D.A. Jim Trotter: Your Honor, I move to disqualify Ms. Vito as a "expert witness"!
Judge Chamberlain Haller: Can you answer the question?
Mona Lisa Vito: No, it is a trick question!
Judge Chamberlain Haller: Why is it a trick question?
Vinny Gambini: [to Bill] Watch this.
Mona Lisa Vito: 'Cause Chevy didn't make a 327 in '55, the 327 didn't come out till '62. And it wasn't offered in the Bel Air with a four-barrel carb till '64. However, in 1964, the correct ignition timing would be four degrees before top-dead-center.
D.A. Jim Trotter: Well... um... she's acceptable, Your Honor.

Fell off the face of the earth.

rboggs@lyon-law.com (Robert Boggs) — Wed, 26 Mar 2008 23:11:18 -0800

I have not posted for many months now. My father, age 81, died suddenly in November from a heart attack. We thought he was in good health so it came as a shock. Even though you know at that age that you are going to get a phone call one of these days it still is hard to handle. Remember life zips by so fast -- so cherish all your relationships, not your billable hours.

So for the last several months I embarked on what many a baby boomer my age will face sooner or later. At the time he died I was in an arbitration and fortunately everyone involved agreed to continue it to another date. I flew to Florida immediately. Besides the funeral and all, my sister and I knew we faced a problem with my mother who can not take care of herself due to physical ailments and what appears to be dementia or Alzheimers. I also had to take care of some legal matters, one of which was stressful, and not being admitted in Florida I hired an attorney. When I left the attorney's office, in my mind, all he was doing was working and worrying about my case. Now I know how clients feel.

I drove a car back to Washington. I finished the arbitration and right after Christmas flew back to Florida. Then I moved my mother to Texas to live in an assisted living facility a few miles from my sister's house. It seems like overnight we went from being "the kids" to being totally responsible for our surviving parent.

So posting has not been a top priority for awhile. Things are getting back to "normal" and I found that I have missed this old blog. So back to it .....life does continue.

New CR 45

rboggs@lyon-law.com (Robert Boggs) — Wed, 10 Oct 2007 22:55:41 -0800

Attention Washington lawyers! If you have not been reading your advance sheets lately you will want to because you will find that a brand new CR 45 "Subpoena" went into effect September 1, 2007. What is interesting or maybe even alarming is that the new rule adds significantly to what is required in the text of a subpoena.

It says in the first section (a) the following:

(a) Form; Issuance.
   (1) Every subpoena shall:
     (A) state the name of the court from which it is issued;
     (B) state the title of the action, the name of the court in which it is pending, and its case number;
     (C) command each person to whom it is directed to attend and give testimony or to produce and permit inspection and copying of designated books, documents or tangible things in the possession, custody or control of that person, or to permit inspection of premises, at a time and place therein specified; and
   (D) set forth the text of subsections (c) and (d) of this rule.

The text of subsections (c) and (d) are quite lengthy as you can see:

(c) Protection of Persons Subject to Subpoenas.
(1) A party or an attorney responsible for the issuance and service of a subpoena shall take reasonable steps to avoid imposing undue burden or expense on a person subject to that subpoena. The court shall enforce this duty and impose upon the party or attorney in breach of this duty an appropriate sanction, which may include, but is not limited to, lost earnings and a reasonable attorney's fee.
(2) (A) A person commanded to produce and permit inspection and copying of designated books, papers, documents or tangible things, or inspection of premises need not appear in person at the place of production or inspection unless commanded to appear for deposition, hearing or trial.
       (B) Subject to subsection (d)(2) of this rule, a person commanded to produce and permit inspection and copying may, within 14 days after service of the subpoena or before the time specified for compliance if such time is less than 14 days after service, serve upon the party or attorney designated in the subpoena written objection to inspection or copying of any or all of the designated materials or of the premises. If objection is made, the party serving the subpoena shall not be entitled to inspect and copy the materials or inspect the premises except pursuant to an order of the court by which the subpoena was issued. If objection has been made, the party serving the subpoena may, upon notice to the person commanded to produce and all other parties, move at any time for an order to compel the production. Such an order to compel production shall protect any person who is not a party or an officer of a party from significant expense resulting from the inspection and copying commanded.
(3) (A) On timely motion, the court by which a subpoena was issued shall quash or modify the subpoena if it:
       (i) fails to allow reasonable time for compliance;
       (ii) fails to comply with RCW 5.56.010 or subsection (e)(2) of this rule;
       (iii) requires disclosure of privileged or other protected matter and no exception or waiver applies; or
       (iv) subjects a person to undue burden, provided that the court may condition denial of the motion upon a requirement that the subpoenaing party advance the reasonable cost of producing the books, papers, documents, or tangible things.
     (B) If a subpoena
       (i) requires disclosure of a trade secret or other confidential research, development, or commercial information, or
       (ii) requires disclosure of an unretained expert's opinion or information not describing specific events or occurrences in dispute and resulting from the expert's study made not at the request of any party, the court may, to protect a person subject to or affected by the subpoena, quash or modify the subpoena or, if the party in whose behalf the subpoena is issued shows a substantial need for the testimony or material that cannot be otherwise met without undue hardship and assures that the person to whom the subpoena is addressed will be reasonably compensated, the court may order appearance or production only upon specified conditions.

(d) Duties in Responding to Subpoena.
(1) A person responding to a subpoena to produce documents shall produce them as they are kept in the usual course of business or shall organize and label them to correspond with the categories in the demand.
(2) When information subject to a subpoena is withheld on a claim that it is privileged or subject to protection as trial preparation materials, the claim shall be made expressly and shall be supported by a description of the nature of the documents, communications, or things not produced that is sufficient to enable the demanding party to contest the claim.

If you don't believe me check it out here.

Wrongful Death: A Creature of Statute

rboggs@lyon-law.com (Robert Boggs) — Wed, 26 Sep 2007 23:07:57 -0800

When you think of a wrongful death case try not to think of it as a tort case. Wrongful death did not exist in the common law and in fact it did not even exist in statutory form until a little over 100 years ago or so. We are all creatures of habit and because of that we often carry the legal concepts in tort law over into our thoughts about wrongful death. This is a mistake. You must always, no matter how many wrongful death cases you have handled, read the statute. It is full of surprises.

An example of this problem can be found in the recent Washington State Supreme Court case of Atchison v. Great W. Malting Co. Docket No. 80034-1 decided August 30, 2007. In this case Mr. Atchison died intestate in June of 2000. At the time his most immediate next of kin was his daughter, age 15 at the time. She turned 18 on March 19, 2003. On November 9, 2005 she was appointed personal representative of her father's estate. On February 10, 2005, as the personal representative, she filed a wrongful death action against her father's employer Great Western Malting claiming that the company negligently caused his death.

Great Western moved to dismiss claiming that the statute of limitations had run. They argued that the three year statute of limitations started running the day he died meaning the statute of limitations ran out in June 2003. His daughter argued that since she was only 15 at the time of his death her minority status tolled the statute from running until she reached age 18 in March of 2003 and therefor she was still within the statute of limitations.

The Court held that pursuant to RCW 4.20.010 only a personal representative could bring an action for wrongful death. Further the daughter could not be a personal representative until she reached age 18. In addition, the tolling statute RCW 4.16.190 becomes operative only when the "person entitled to bring an action" is disabled as in "is a minor." So the statute started running on the date he died and was not tolled by the daughter;s minority because, not only was she not the personal representative, but she could not even become the personal representative until she turned 18. So in this case she only had a small window of opportunity between the time she turned 18 in March 2003 and the date the statute ran out in June of 2003 to be appointed the personal representative and file suit. By February of 2005 it was too late by a long shot.

The daughter tried to argue that "the personal representative" should be considered to be the daughter who was to become the personal representative in the future. That is the statute should have been tolled until she was able to become the personal representative. The Court, I think, rightfully pointed out that that would lead to all sorts of means to manipulate the statute. For example, let's say that a case comes to an attorney three years after the person dies and his estate has not be probated yet. The attorney could just find someone who is presently under 18, wait until they turn 18, and then appoint the person as the personal representative and start the statute of limitations running all over again.

Lesson learned - read the statutes carefully. In this case it would be easy to assume that if the plaintiff was under 18 at the time of the person's death that the statute would toll until the plaintiff turned 18.

E-Discovery: Now that I've found it how do I get it in.

rboggs@lyon-law.com (Robert Boggs) — Wed, 08 Aug 2007 17:16:51 -0800

In a Technolawyer news letter I learned that a certain judge in the case of Lorraine v. Markel American Insurance Co., 2007 U.S. Dist. LEXIS 33020 (D. Md. May 4, 2007) issued a one hundred page opinion that is essentially a primer on how to get electronic evidence in at trial.

Class Action Waiver is Unconsionable

rboggs@lyon-law.com (Robert Boggs) — Wed, 25 Jul 2007 18:01:08 -0800

In a 6-3 opinion in the case of Scott v. Cingular Wireless Corporation (no cite yet) the Washington State Supreme Court held last week that a waiver of class actions contained in a consumer contract was unconscionable and unenforceable. The plaintiffs sought to bring a class action alleging that Cingular had overcharged consumers between $1 and $40 for roaming and hidden charges. The waiver appeared in a paragraph that mandated binding arbitration and provided that Cingular would pay the cost of the arbitration unless it was frivolous and pay the consumer’s attorney fees if the consumer recovered at least the demand amount. It then went on to say that “You and Cingular agree that You and Cingular may bring claims against the other only in your or its individual capacity, and not as a plaintiff or class member in any purported class …”

The court found that the waiver was unconscionable based on public policy grounds. The court stated that since 1971 the State’s Consumer Protection Act has encouraged consumers to be quasi-civilian attorneys general by allowing them to privately enforce the provisions of the Consumer Protection Act. They further stated that the courts have favored class actions as the only way that consumers can take action against an offending company when individual claims are so small that they are not worth bringing. By waiving class actions the contract in effect prohibits anyone from bringing an action against Cingular and thereby defeats the intent of the State’s Consumer Protection Act.

But wait a minute said the dissent. The contract provided that Cingular, if the plaintiff recovered at least the demand amount, would pay the plaintiff’s attorney fees and costs. Therefore even though the amount sought is small the plaintiff is able to bring the suit because of this fee provision. But, said the majority, the plaintiff would have to collect every dollar of its demand. If the demand was for $100 and the recovery was for $99 no attorney fees would be paid and therefore it would all be too risky for the plaintiff/consumer.

The dissent predicted that this case was a sweeping rule that would invalidate all such clauses without regard to the specific terms of the contracts. I do not think so. If Cingular would change this paragraph to the effect that it would pay all attorney fees no matter what, then, if the majority means what they say, the paragraph should pass muster.

David v. Goliath

rboggs@lyon-law.com (Robert Boggs) — Tue, 24 Jul 2007 19:47:03 -0800

Are your personal injury cases drying up? Do you settle your personal injury cases for less because the insurance companies have done a good job tainting jurors? Then try business litigation. The cover storey in the June issue of Trial suggested that there are many plaintiff opportunities in the business world to fight for the little guy.

I was reminded of this when I saw this article recently - a real David v. Goliath case complete with visuals of the Biblical characters. A bag boy, Jonathon Johnson, had worked his way up in a grocery chain to management. In addition he created four of his own stores in the inner city of Richmond which provided quality food at lesser prices and provided many services for the inner city residents.

Then he bought 51% of one of the stores from Rich Foods, the chain where he originally rose to management. Unfortunately another entity known as SuperValu bought ought Rich Foods and he found himself having to deal with them. They were not nice people. According to a whistleblower that worked for SuperValu they had a plan to run him out of business and replace his four inner city stores with their stores, Sav-a-Lot. They were successful.

But not so fast. In comes attorney Verbena Askew and sues on behalf of Mr. Johnson. The jury returns a verdit of $500,000 for intentional infliction of emotional distress and $15.5 million for negligent infliction of emotional distress for a total of $16 million.

I wonder how many times this kind of stuff happens every day which means I think this is an untapped area of the law. It would also seem to present challenges for trial attorneys to simplify the evidence and come up with creative ways communicate their story to the jurors - in other words a trial attorney’s dream come true.

Reasonable Doubt

rboggs@lyon-law.com (Robert Boggs) — Wed, 18 Jul 2007 13:05:57 -0800

In the July issue of Litigation News published by the Section of Litigation of the American Bar Association there appeared a short article on "reasonable doubt". In the article they quote Paul Mark Sandler of Baltimore on an effective way to describe reasonable doubt in a closing argument. The quote reads as follows:

Let's assume we have a box, and in that box are a cat and a mouse. We put the lid on the box; we walk away. When we come back the mouse is gone. Is there any reasonable doubt on what happened to that mouse? But what if when we come back, we open the box and, lo and behold, there's a big hole in the side of the box. Is there now reasonable doubt of what happened to that mouse? Sure there is. Well, let's turn to the holes in the prosecution's case . . .

Great one for criminal lawyers. I am still looking for one to describe "preponderance of the evidence" that is so compelling.

Signal to Noise

rboggs@lyon-law.com (Robert Boggs) — Mon, 04 Jun 2007 21:42:41 -0800

Here is an older article from the Beyond Bullet Points blog that makes a good point about the titles we put on PowerPoint slides. Cliff Atkinson suggests that instead of a one word heading or a phrase use a complete sentence. Instead of showing a slide entitled "Injuries" which then lists your client's injuries, use a sentence like "Injuries that Mr. Plaintiff sustained as a result of being run over by Mr. Defendant." The sentence aids in the retention of the information and has been proven to work.

Where have all the jury trials gone?

rboggs@lyon-law.com (Robert Boggs) — Sun, 03 Jun 2007 22:15:15 -0800

I suppose this shouldn't surprise me but it did. I live in Yakima, Washington the population of which is approximately 70,000. The county, Yakima, has a population of 200,000+. We have seven Superior Court judges and several available courtrooms on any given day. Last year, 2006, there was a total of 11 civil jury trials. Eleven! On the other hand there were dozens of criminal jury trials. I guess the moral of the story is that if you are a young attorney and want to get some jury trials under your belt try criminal law.

Only a trial lawyer.

rboggs@lyon-law.com (Robert Boggs) — Wed, 07 Mar 2007 09:52:39 -0800

Only a trial lawyer would get hung up on a thing like this. I was reading an article at Law.Com-Daily News Wire about the jury deliberations in the Libby case. Out of the whole article I was hung up on the juror who kept track of the number of objections during Tim Russert's testimony including how many were sustained and how many denied. 25 out of 36 objections were sustained. Now why is a juror keeping track of that. Does it mean something to that juror if more objections are sustained than denied? Does the objecting party get points for each objection sustained? I think it leads me to the conclusion that the less objections the better.

Show some respect for the court.

rboggs@lyon-law.com (Robert Boggs) — Tue, 06 Mar 2007 12:58:06 -0800

I'm not one to advise attorneys to roll over and play dead when the court is obviously out in left field, but there are ways to do it and ways not to do it. At The Practice they noted that stating the following to a judge after his ruling was not a good idea:

"Your honor, you don't cite any case or rule that supports your position. We want to know the authority for your decision."

I would like to add to that one one that I witnessed during an oral argument:

"Judge if you rule that way I'm just going to take you up on appeal .... "

What were they thinking?

Technology Trends for 2007

rboggs@lyon-law.com (Robert Boggs) — Tue, 13 Feb 2007 10:02:30 -0800

Dennis Kennedy has been running a great series on legal technology trends for 2007. The series culminates with a post on February 11th giving an abbreviated version of the series. For those of us who are a bit overwhelmed these are great posts to focus our attention on what matters.

How to get good settlements.

rboggs@lyon-law.com (Robert Boggs) — Sun, 28 Jan 2007 17:37:32 -0800

Evan Schaefer refers to a great post on the Virginia Injury Lawyer Blog which sets forth sixteen recommendations for getting good settlements. Read it. I thought it was inspiring.

More on E-Discovery

rboggs@lyon-law.com (Robert Boggs) — Sun, 28 Jan 2007 17:11:08 -0800

Dennis Kennedy recently posted on the issue of unanswered questions in E-Discovery. He links to a Ron Freidman post on the unanswered questions regarding web based databases or Web 2.0. Often times multiple users or companies will team up on such a database where all users are adding and editing content and documents. How does a court issue an order to preserve this information? Answer? There is no answer you may be the first to tackle the problem.

Washington Supreme Court overturns "completion and acceptance" doctrine.

rboggs@lyon-law.com (Robert Boggs) — Sat, 20 Jan 2007 22:13:49 -0800

Just this week on January 18th, the Supreme Court of the State of Washington in Davis v. Baugh Industrial Contractors Inc. No. 76696-7, overturned the "completion and acceptance" doctrine. The doctrine has long existed in common law. It provides that when a contractor completes his work and it is accepted by the owner, the contractor is no longer liable to third parties for negligence.

In Davis, Baugh installed underground high density polyethelene pipes for Glacier Northwest at a processing facility. The work was completed and accepted in April 1997. In December 2000 Glacier noticed a pond forming. A foreman for Glacier, Alan Davis, took a crew out and dug up the pipe which was leaking. While Davis was in the hole with the pipe a wall of the excavation collapsed and two ton and a half concrete blocks fell in the hole and killed him. The Plaintiff Personal Representative alleged that Baugh was negligent as the Plaintiff suspected the pipe, which is supposed to last 100 years, was either gouged or dented when it was installed.

Baugh moved for summary judgment citing the "completion and acceptance" doctrine and the trial court found in favor of Baugh. On appeal the Supreme Court overturned the summary judgment order and the "completion and acceptance" doctrine that had supported the judgment. The Court instead favored Restatement (Second) of Torts Sec. 385 which holds that a contractor is liable for injury or damages to third parties when it is reasonably foreseeable that third parties could be injured by the contractor's negligence regardless of the completion and acceptance rule. The Court reasoned that the rule was based on many outdated concepts such as "privity of contract". The Court further noted that 37 other states had abandoned the doctrine and that the six year statute of repose, RCW 4.16.030, would protect the contractor from limitless liability.

The vote was 6-3 with Thomas Chambers writing the majority opinion.

Paint a picture with direct testimony.

rboggs@lyon-law.com (Robert Boggs) — Wed, 17 Jan 2007 21:33:34 -0800

Face it, direct testimony is frustrating. Both the attorney and the witness want to break loose with a long narrative answer. But, of course, you can't do that so what comes out question by question seems to be a very slow, disjointed narrative. However, it doesn't have to be that way.

A direct examiner can actually paint a vivid picture in the jury's mind with a serious of short declarative answers. For example, consider the following passage from Pastime, a detective novel by Robert B. Parker (Spencer for Hire remember). Read through it and see whether or not these consice sentences with very few adjectives paints a picture in your mind:

I went to Chez Vous, which was located next to an ice cream parlor behind a bookstore in a small shopping center on Massachusetts Avenue. Four desks, four swivel chairs, four phones, four side chairs, and a sofa with maplewood arms and a small floral print covering. The wall was decorated with flattering photos of the property available, and the floor was covered with a big braided rug in mostly blues and reds. Two of the desks were were empty, a woman with blue'black hair and large green-rimmed glasses sat at one of the remaining desks speaking on the phone. She was speaking about a house that the office was listing and she was being enthusiastic. The other desk was occupied by a very slender blonde woman wearing a lot of clothes. Her white skirt reached her ankles, nearly covering her black-laced high-heeled boots. Over the skirt she wore a longiish ivory-colored tunic and a black leather belt with a huge buckle and a small crocheted beige sleeveless sweater, and a beige scarf at her neck, and ivory earrings that were carved in the shape of Japanese dolls, and rings on all her fingers, and a white bow in her hair.

Now take this paragraph and come up with the direct questions which will move the witness through this description at an even pace. Get someone else to be the witness and practice your direct examination based on the facts in the paragraph.

I would suggest that when you are working up your own case for direct start with a story that has all the relevant facts that you need to get in and then work your questions so that the witness delivers the story sentence by sentence or even phrase by phrase.

Sign Posts

rboggs@lyon-law.com (Robert Boggs) — Tue, 02 Jan 2007 21:49:39 -0800

It is easy to lose a jury in opening, during direct and cross examination and during closing. By the time a case goes to trial we usually have a command of the facts that often times is better than the witnesses'. And we certainly have a better command of the issues and the law. This knowledge tends to produce what I would call skips in our delivery. We know the facts so well that we jump from one subject to the next with all sorts of assumed connections that only we see or understand. We may think the jury is following along with our mental processes but most of the time they don't.

One way to keep this from happening is to use sign posts. Sign posts are an announcement of what is coming next. For example: "Mrs. Jones I am now going to ask you some questions about things that occured between the time you left the store and the time you slipped on the ice." or, "[to the jury] I am now going to tell you about what caused the accident." This lets the jury know what is coming and why you are asking the questions that you are asking. It also is a good way for you to break things down in coherent, digestible bites.

Who greased the pig?

rboggs@lyon-law.com (Robert Boggs) — Wed, 13 Dec 2006 21:38:26 -0800

Just spreading the word today. Evan Schaeffer at Illinois Trial Practice Weblog referenced a post at The Maryland Injury Lawyer Blog about how to deal with a witness in closing who had previously clobbered you on cross. I am a sucker for "down home" stories and I have a feeling that this approach could very well work. Read it.