The Velvet Hammer

Fargo - Yah

Karen Koehler — Sat, 12 May 2012 01:14:09 -0800

Head jerks forward. Eyes open. Where the heck am I. Are we still in Minneapolis. Can’t figure out if the plane has taken off. Or is landing. It hasn’t taken off. Thirty minutes later we bounce down in Fargo North Dakota.

Alan the Executive Director of the trial lawyer association has texted me to call him. I do. The airport terminal is clean, new and small. At the landing by the escalator, a big tall blond woman is hugging another big tall blond woman in greeting. They appear to be sisters. Talking in a language that is definitely not English.

No one’s waiting for me. Walk outside. There are five cars. At the far end of the roadway sits a solitary van. Covered in ads. Look at phone. No call back from Alan. Raise my arm. The van doesn’t move. Raise arm again. The van moves an inch then stops. Still not sure if it is a cab. Raise arm one more time and wave. The van creeps forward. The driver seems a little amazed that he has a customer. Ask him to take me to the Holiday Inn. Turns on the clicker. It starts at $4.50.

Am looking out the window. It is dusk. There are no hills. We approach an area that has some low rise buildings. The tallest announces itself to be the Holiday Inn. Hand over $13.00 and a tip.

Check in. The clerk says turn right then right then left. Or is it left then right. Can’t remember. The room numbers are in the 400s but am on the first floor. Looking for 171. Now the numbers are in the 100s. Back to 400s. Criss cross the pool area a couple times, rolling luggage. There’s a pirate’s ship in there. And two ping pong tables. Finally find the room. Pull out ipad. Hit Fandango. There’s a movie theater close by. It is 9:15. Call downstairs.

Is it safe to walk to the theater at night.

As in creepy people safe or getting hit by a car safe, he says.

Both. I laugh.

No creepy people, but you have to cross a road.

He offers to drive me one way so will know how to walk back.

Get lost twice walking to the lobby. Adam is standing in the middle of it. Waiting for me. He invites me to get into the front passenger seat of the van. He is from Minnesota. He has a slight build and slightly greased dark hair. Not the best complexion. Is in his final quarter of hotel and restaurant management. Has an interview to potentially work at the Four Seasons in Maui. If only he can get the job and his girlfriend will agree to move. What a dream that would be.

The theater is two blocks away. After popcorn, diet coke and two hours of movie happiness, I run in the wind. Through the parking lot of the sleepy theater. Past the McDonalds. Get lost inside the Holiday Inn Express which is the wrong hotel. Find a janitor who points me to the correct regular Holiday Inn. Where I get lost again. Spend more time lost in the hotels than outside. Find 171. Finish powerpoint for the speech and it is just about 3:00 am.

Wake up at 7:30. Lie there til 8:30. Hustle. Make only one wrong turn before arriving at the conference.

A man is walking towards me beaming. It is Alan. His phone went dead last night. He stayed out late. Michael Freeman (speaker after me) was out with the group at the Lucky Seven last night. He was so fun. Not many speakers hang out with us like that, Alan says. I am of course a case in point. Anyway, he got home late, charged his dead phone. And at 6:00 am it restarted itself off and woke him up. Beeping with my message (“I’m here) from the night before. He slaps his head with his hand.

Don’t worry about it. I didn’t mind walking from the airport to the hotel. He isn’t sure if I’m joking. I wait a few seconds. Then laugh.

It is 9:10. There are two large trays of giant cinnamon rolls. Have been trying to reduce morning sugar intake. At least they are baked not fried. The choice is frosted or pecan glazed. Do calculations in head and choose frosted. Turns out to be a good choice because there is almond paste in there.

The speaker before me finishes early at 9:15. They take a break. I plug in my computer before the tech guy can get there. Mark the attorney putting on the seminar, greets me. We met sometime around 2004 or 2005 at an AAJ car crash seminar in New Orleans. Alan is fairly tall and big. Mark is bigger and taller. He is twinkling around me. Buzzing actually.

Dave Bossart, a hall of fame lawyer, comes and gives a hug. Have heard him speak many times around the country. He is twinkling too.

Am eating the cinnamon roll in between saying hello.

Break ends. Mark gives an introduction. And then says – let’s give her our traditional North Dakota Welcome.

Am thinking – do they say something quaint from the movie.

The room rustles. Chairs are pushed back. They give a standing ovation. Before the presentation.

This is the nicest welcome have ever received. Usually am greeted by a polite semi round of applause from those who are not glued to solitaire or the news on their laptop. Or more typically – expectant critical stares.

The glow of being appreciated before have opened mouth, carries me through the next hour and a half. Finish. Dave gives two more hugs. Michael F is next. More hugs. The only bad thing is, am leaving in an hour. Should have stayed longer. But it is mother’s day weekend, and need to get home.

Walk down the hall to the lobby. It is 11:30. There is a luncheon in a banquet room. Filled with women with short white puffy hair. In front of the door, the sign reads: Goodwill Bridge Club. Reach the front desk – can you call me a cab. They give me a look. Remember the shocked look on the cab driver’s face.

We have a van and can give you a ride, they say. They check their books. No problem in ten minutes. Walk back to room. Mind wanders and lands on the Morrow case I tried a few years ago. Against Holiday Inn for a dangerous courtesy bus – in Seattle. Will not mention this to the van driver.

Do not get lost. Change, pack, return to lobby.

Kip is putting stamps on a box. Just a minute, he says. And walks me to the van. Tosses my bag in the back and has me get into the front passenger seat.

Kip asks if I’ve seen the movie Fargo. A long time ago, I say. How many times have you seen it. He says too many times to count and laughs.

His hair is light brown and buzz cut. He is another big one. With freckles. He has been to Seattle once. Saw Pike’s Place. Mainly he goes to Oregon. His uncle lives there. He loves to fish. He caught a sturgeon on the Columbia River. Have you ever seen those – they are scary looking. Prehistoric, he says. In fact, I have a picture of one of them on my phone.

We are on the elevated entrance ramp loop to the freeway. He pulls out his phone and starts scrolling through it. I’m watching the edge of the ramp. He manages to stay on the road. Here it is!: he announces proudly. Hands over his phone. Yep. There he is. Holding a sturgeon.

Did you eat it, I ask.

When I was a girl, one of my favorite fairy tales was about a prince who was turned into a carp. I can feel the fear of the prince.

Nope, threw it back, Chip says.

Arrive at the airport. Chip hands over the suitcase. Thanks, I say. Yaaah, y’betcha, he grins. I say bye. He waves and tells me to come again. Have turned and am walking into the building. He yells – and make sure you see the movie Fargo again.

Ten reasons I'd rather try a case against a good lawyer

Karen Koehler — Mon, 07 May 2012 16:24:26 -0800

An attorney asked me to help try a case a week before trial. Day one I arrived with a notice of appearance. The defense lawyer objected due to "unfair surprise." Overruled.

It was not a complex trial but the defense lawyer struggled. Mightily.

After the good (for us) verdict came in this is what the jurors said. They had a really hard time with how bad the defense lawyer was. They felt very sorry for the defendant for having such a poor lawyer. Closing argument was so awful they could not even "bear to look" at her. They had to make extra sure they didn't rule against the defendant because of counsel. So they tried to even things out. Thankfully they were able to give us a good verdict but this left a permanent impression with me.

Here are the top 10 reasons I'd rather try a case against a good defense lawyer:

10. Don't have to mute normal style and appear almost blase.

9. Don't have to dumb down technique to avoid seeming too smooth.

8. Jurors appreciate an evenly matched fight.

7. Judge gets less exasperated.

6. Easier to predict timing which helps with scheduling witnesses

5. Don't get bogged down (bored) as much with foundation and procedural issues

4. Hate waste of time and it can become difficult to hide impatience (eye rolling syndrome)

3. The jury may decide it needs to do that lawyer's job.

2. Makes the defense look like it doesn't have the resources to hire decent counsel (even though an insurance company is footing the bill); and most importantly

1. It is way more fun to try a case against a really good lawyer.

P.S. This isn't meant to scare new lawyers away from trying cases. Everyone has to start somewhere. But for heaven's sake if you haven't done this enough to be good at it - bring someone to trial to help. Your clients deserve it.

P.S.S. Maybe it isn't completely nice to say that I'd rather not try a case against an inexperienced or poor attorney. But the truth will set you free.

Photo: Reason why unable to discreetly roll eyeballs.

Co-opting Ye Old Glass Is Half Full Defense

Karen Koehler — Wed, 02 May 2012 19:32:35 -0800

The only health condition the defense won't try to spin - is death.

One technique used against plaintiffs, is to paint them as negative whiners. The defense mocks the injured person by saying they are overly focusing on their injury and see the glass as half empty. The logic is - if the person had a better mindset - they would see the glass is half full and everything would be better.

If the glass is half full defense works as planned, the jurors will feel nothing but irritation towards the injured person. Because no one feels compassion for a person who only sees and wants the worst in every situation.

In this trial, a drunk driver hit a man and crushed various bones throughout his body. Defense doctors were hired to testify that his injuries were not really so bad. Bones do heal ...with the help of metal plates and screws okay sure - but they do heal, they said.

In closing, I collected all of the "minimizing" statements of these doctor experts. Used the above photo. And roasted them by co-opting and presenting "Defendant's Glass Half Full List."

• He can walk even if he has to stop (after a few blocks)

• He can write with his left hand (even though he wrote with his right before)

• He can ride and drive in a car (but is still scared of trucks)

• He can travel (though he avoids it and has to move around constantly)

• He can cook to a certain extent

• He has range of motion (though he had to give up being a professional spin instructor and can no longer climb mountains, run, or engage in professional dance)

• He is off of narcotics (but still has pain daily)

and so on.

Co-opt this defense. Show the jury that your client believes that the glass is half full - even though bad things have happened.

Photo: From a PPT slide used in seveal trials last year.

How to write an unboring letter to opposing counsel

Karen Koehler — Tue, 01 May 2012 14:17:16 -0800

We used to write hundreds of boring (sounding) letters in a case. Now we write hundreds of boring (sounding) emails and the occasional letter.

There is no court rule that says we need to be boring (sounding) when we communicate with opposing counsel.

The first draft of this sample letter was written by my highly competent paralegal John. It simply said: Enclosed for your consideration are sample jury verdicts for similar cases.

Here is the less boring and more fun version:

Dear R&M:

Before our settlement discussions went kaput, you mentioned that a defense offer would likely be roughly in the $45,000 to 60,000 range. My highly polite response was something along the lines of: balderdash. However, to engage in further due diligence, we undertook a jury verdict/settlement search of cases where a young male died without dependents. Here are the results.

*AGE*	*VERDICT/SETTLEMENT*
19	$350,000
19	$275,000
21	$383,278
21	$1,500,00
22	$500,168
23	$388,329
23	$494,549
29	$500,000

Once this case gets back on track and we eventually comply with the court’s order to mediate, you may want to keep these figures in mind - even though they remain on the low side.

Please consider this communication to be governed by ER 408.

Very truly yours,

Karen

How to turn in a bad driver

Karen Koehler — Thu, 19 Apr 2012 10:06:01 -0800

We can do more than file a lawsuit when a bad driver hurts our clients. We owe it to society to get those drivers off the road.

State licensing departments have simple forms that can be filled out to trigger an investigation. They don't publicize these but they exist.

Here is the form for Washington State. dol.pdf

Next time someone runs down your client in a crosswalk, feel free to use it.

Tips for attorneys - from a children's novelist

Karen Koehler — Tue, 17 Apr 2012 14:31:43 -0800

We are rewarded in school for using sentences so complex, that the reader or listener is virtually tortured by them. As grown up lawyers this means we tend to spout legalese to normal people. How as trial lawyers do we shrug off these intellectual habits. So we can tell a good story.

Look at these tips from C.S. Lewis (he of The Chronicles of Narnia fame). This is taken from a letter he wrote to a young Fan in 1956.

What really matters is:–

1. Always try to use the language so as to make quite clear what you mean and make sure your sentence couldn't mean anything else.

2. Always prefer the plain direct word to the long, vague one. Don't implement promises, but keep them.

3. Never use abstract nouns when concrete ones will do. If you mean "More people died" don't say "Mortality rose."

4. In writing. Don't use adjectives which merely tell us how you want us to feel about the thing you are describing. I mean, instead of telling us a thing was "terrible," describe it so that we'll be terrified. Don't say it was "delightful"; make us say "delightful" when we've read the description. You see, all those words (horrifying, wonderful, hideous, exquisite) are only like saying to your readers, "Please will you do my job for me."

5. Don't use words too big for the subject. Don't say "infinitely" when you mean "very"; otherwise you'll have no word left when you want to talk about something really infinite.

This is pretty good advice.

Photo from C.S. Lewis Wikipedia

Where do these all powerful medical insurance adjusters come from?....

Karen Koehler — Mon, 16 Apr 2012 10:40:44 -0800

You get in a car wreck. But fortunately have purchased Personal Injury Protection or Medical Pay insurance. So you believe you are fully covered. That is, until the adjuster cuts off your benefits. Usually with the help of a "medical review" sometimes performed by an actual doctor (who never sees or talks to you).

Where do these all powerful medical insurance adjusters come from. These people who are deciding whether we get treatment or not.

Here's a typical example:

8 E X A M I N A T I O N

9 BY MS. KOEHLER:

16 Q. Where do you work?

17 A. Allstate Insurance.

18 Q. How long have you worked there?

19 A. Eleven years. November will be 11 years.

20 Q. What's your job title?

21 A. Claim adjuster.

22 Q. What's your other job titles you've had since

23 you've been at Allstate?

24 A. Well, I'm currently a senior claim adjuster, and

25 it's been just claim adjuster prior to that.

1 Q. How long have you been senior?

2 A. I believe it's been two years.

3 Q. What were you hired on as?

4 A. Claim adjuster.

5 Q. What's your educational background?

6 A. I have a B.A. degree from the University of

7 Washington.

8 Q. In what?

9 A. Psychology.

10 Q. What was the year?

11 A. 1987 I graduated.

12 Q. Any jobs other than Allstate after graduation?

13 A. Yeah.

14 Q. What else?

15 A. First job out of college I worked for Northwest

16 Center for the Retarded.

17 Q. In what capacity?

18 A. I was an instructor for them. The developmentally

19 disabled adults came to Northwest Center to work, and so I

20 helped them with their work.

21 Q. How long did you work there?

22 A. Two years.

23 Q. Anywhere else?

24 A. Yeah. After that, I worked for Cascade Savings

25 Bank.

1 Q. As what?

2 A. I was an escrow assistant there.

3 Q. For how long?

4 A. I started out as a temp through Kelly Services for

5 maybe four months and then worked there two years.

6 Q. Why did you leave Northwest Center for the

7 Retarded?

8 A. I wanted to try something new and try to get some

9 better pay.

10 Q. What did you do after Cascade Savings?

11 A. I worked for North -- or sorry -- Western Title.

12 Q. As what?

13 A. I was a receptionist there, and I also moved on to

14 do reconveyances.

15 Q. How long were you working there?

16 A. A year.

17 Q. And then where did you go?

18 A. I worked at a daycare center.

19 Q. As what?

20 A. A three-through-five-year head teacher.

21 Q. For how long?

22 A. About six months.

23 Q. What was the name of it?

24 A. You know, I don't recall.

25 Q. Then what did you do?

1 A. I went on to Country Companies Insurance.

2 Q. When was that?

3 A. When was that? Let's see. It was about 1995.

4 Q. What was your initial position?

5 A. I was an assistant receptionist.

6 Q. Why did you take on that job?

7 A. Why did I take it on?

8 Q. Uh-huh.

9 A. I had temped there through Kelly Services, and it

10 was a good opportunity for me.

11 Q. How long did you work there?

12 A. About two years.

13 Q. What was your last position worked?

14 A. At Country Companies I left as a receptionist.

15 Q. Then where did you go?

16 A. Allstate.

17 Q. So you went from being a receptionist to a claim

18 adjuster?

19 A. Yeah. I did handle minor claims at Country

20 Companies.

21 Q. What was your job title at Country Companies?

22 A. They had me down as receptionist assistant.

23 Q. So at Allstate you were hired on as a claims

24 adjuster?

25 A. Yes.

1 Q. What year?

2 A. 1997.

3 Q. What department?

4 A. PIP.

5 Q. Which office?

6 A. Marysville.

7 Q. Have you ever left the office?

8 A. Yeah. Yes. I'm in the Bothell office now.

9 Q. Since when?

10 A. About six years ago.

11 Q. Prior to adjusting claims, what courses did you

12 take in insurance claim-handling?

13 A. In insurance claim-handling, we took courses like

14 introductory to medical reports, a lot of online courses,

15 basic claim-handling classes on interpreting policy.

16 Q. When did you take these courses?

17 A. After beginning at Allstate.

18 Q. So the years would be 1997?

19 A. Yeah, when I started.

20 Q. Did you review documents involving claim core

21 process redesign, CCPRs?

22 A. No.

23 Q. Do you know what the courses that you were taking

24 on were based upon? In other words, do you know how the

25 courses that you were taking were developed?

1 A. No.

2 Q. Do you know any of the motivation surrounding any

3 of the courses that you took?

4 A. No.

5 Q. Were you told any of the policies and procedures

6 of Allstate at the time that you began working there other

7 than work through classes?

8 A. Through classes? No, just started out doing like

9 training on the computers and things like that.

10 Q. Did you actually have a training period before you

11 began working?

12 A. Yes.

13 Q. Where were you trained?

14 A. We did -- in Marysville.

15 Q. Did you ever leave the state for training outside

16 of Washington?

17 A. Yes.

18 Q. When did you do that?

19 A. In June 1998.

20 Q. Where did you go?

21 A. To Northbrook, Illinois.

22 Q. How long were you there?

23 A. Two weeks.

24 Q. Was that for claims school?

25 A. Yes.

1 Q. Did your job title change after 1998?

2 A. No.

3 Q. Did you ever go back to Northbrook?

4 A. No.

5 Q. Did you ever go to California?

6 A. No.

7 Q. Did you ever go to any state outside of Washington

8 for training other than Northbrook in 1998 for two weeks?

9 A. No.

10 Q. All of the training that you had in Washington,

11 was it at Marysville?

12 A. Yes.

13 Q. And online; am I correct?

14 A. Yes, and then sitting-alongs with other coworkers.

….

3 What medical training have you had?

4 A. None.

5 Q. What science courses did you take in college?

6 A. I took human anatomy, physics, chemistry, organic

7 chemistry. I took two physics classes that I recall.

8 Q. Have you ever worked in a medical office?

9 A. I temped for two weeks at an x-ray department at

10 the University of Washington.

11 Q. I take it you perform no medical treatment or

12 services?

13 A. Correct.

14 Q. It was a receptionist job or something like that?

15 A. Orderly.

16 Q. Do you claim that you have any medical training or

17 background?

18 A. No.

People Pose more "P"s. (part 2)

Karen Koehler — Wed, 04 Apr 2012 13:03:23 -0800

Here are reader's suggestions for more "P"s to add to "The Ps". Lawyers have a pretty intense vocabulary. I had to look up a couple of these.

Pushy – Not settling for the defendants’ BS answer, but working for the truth.

Positive – Believing in your clients, their cause, and your skills to bring justice and right a wrong.

Prescient – Understanding what is going to happen, and the likely issues in a case, ahead of time so you can prepare your client and your case.

… I was just reminded, FORCEFULLY, that we both left out the most important P – PARALEGAL.

M.A. Chattanooga TN

My Father always stressed the "rule of P's":

Prior Planning Prevents Poor Performance

C.V. Biloxi Mississippi

Progressive, Potential, Pleasant, Penal, Perpetual, Perplexed, Pronounce, Paraphrase, Precise, Punctual, Perfection, Performance, Placate, Presume, Plan, Practice, Pressure, Predispose, Platitude, Pacify, Postulate, Punishment, Preliminary, Parliamentary, Protocol, Pretense, Proud, Psychological, Plethora, Prime, Prime-time, Placement, Predominant and for the far out – Paranormal or am I just being Pissy.

K.M. Seattle, WA

Polarizing the Case, ala Rick Friedman.

D.C. Hackensack, NJ

Procrastination and Pessimism– two things we have to learn to confront, and overcome

K.T. Washington, DC

"Power” --- not just “power point”. Claim your power and go with it.

L.S. Seattle, WA

How’s about “practicality” and “persistence” (a little different than “perseverance”)

A.G. Roseland, NJ

"P" - perspicuity: plain to the understanding because of clarity and precision of presentation;

"P" - perspicacity: The power of seeing clearly; discernment; insight.

B.W. Seattle

What about Potential? I think so many young lawyers, especially young female lawyers, feel that the practice is so daunting, given lack of female mentors, lack of opportunities, and what feels like a lack of support. I think more young lawyers (female and male) need to recognize that they have so much potential to do better, to succeed, to make a difference—they just need a little reminder at times.

I have been fortunate to have great mentors (though, no female attorneys at my firm—I was the first female associate in some time, and I am now the first female partner at my firm) who saw potential in me and pushed me to succeed, but some days, I definitely needed a reminder that I was strong, capable, etc.

R.H. Spokane, WA

Patience. We need to be patient with our clients, and in the execution of our litigation strategy.

Prayer: sometimes when it looks like you are about to lose a case or when the demands of running a business get overwhelming, a little pause for a prayer to your God or Higher Power provides comfort that you are not really all alone.

S.B. Delaware

So there you have it.

Take it from Kurt - 8 (no adjective needed) storytelling tips

Karen Koehler — Tue, 03 Apr 2012 18:53:06 -0800

The quest for the best story is front and center as we prepare for trial. Data is all good and well. But stories are the way to connect with real people.

These tips from Kurt Vonnegut may not be exhaustive but they ring true. I've simply substituted the word "juror" for "reader". Here is the actual youtube list. http://www.youtube.com/watch?v=nmVcIhnvSx8.

1. Treat the juror's time as a resource - do not waste it.

2. Give the jury a character to root for.

3. Every character should want something - even if only a glass of water.

4. Every sentence must reveal the character or advance the action.

5. Start as close to the end as possible.

6. No matter how sweet and innocent your leading characters, make bad things happen to them so the jury can see what they are made of.

7. Aim to please just one person. If you open a window and make love to the world, your story will get pneumonia.

8. Give the jurors as much information as possible as soon as possible. To hell with suspence. Jurors should have such complete understanding of what is going on, where and why, that they could finish the story themselves.

This article is derived from The Atlantic - Kurt Vonnegut's 8 Tips on How to Wrige a Great Story by Maria Popova. http://www.theatlantic.com/entertainment/archive/2012/04/kurt-vonneguts-8-tips-on-how-to-write-a-great-story/255401/

Photo from www.Kurtvonnegut.com

The "P"s

Karen Koehler — Mon, 02 Apr 2012 23:39:10 -0800

I had one night to come up with a speech. it was our trial lawyer's annual convention. And I needed to fill in for a sick speaker. That evening on the treadmill the speech came together. Now a decade or so later, here is a blog version of The "P"s.

OFFICIAL TITLE: THE ART OF ADVOCACY

Passion - The ability to throw oneself headfirst into a cause with heart, mind, body and soul.

Perspective – There are many different perspectives involved in having perspective. Make sure you truly see what is there to be seen.

Principle - A wise older lawyer once said – “you should never sue just as a matter of principle…the court system is expensive, the process tough, and ultimately it could cost you a lot of money that you will never recoup.” On the other hand, sometimes the right thing to do is to sue just for the principle of the matter.

Preparation – There is no substitute for preparation. But you can't be prepared enough for everything.

Personality – We all had personality before we went to law school and were taught to think and act like boring lawyers. Stop talking so much. Listen. Feel life through your client’s eyes. Wear something pretty. Write like a journalist. Smile inside and out. Video yourself talking and ask – if I was listening to this person, how long could I bear it before I tuned out.

Professionalism - Litigation is often by its very nature, a battle. We should strive to fight with respect, grace and dignity. On the other hand, trial lawyers must be aggressive, effective and tireless advocates for the sake of our clients and the cause of justice. Our politeness comes with teeth.

Persuasion - The key to being able to persuade is knowing you are on the right side.

Parenthood - Spending "quality time" with your kids is not as good as spending enough time. Figure this out - somehow, someway. You can do it.

PowerPoint - Technology has revolutionized the way we conceptualize and present cases. Now we can show and tell within a tight budget. Attend a local workshop, enlist a child aged eight on up, or get a “dummies” guide. But learn how to do this.

Perseverance - It's not over until it's over. And even then, tomorrow's a brand new day

Photo: Okay, so there is no photo of me giving the P speech. But this one is kind of close. Am in the audience at my partner Paul Stritmatter's fantastic seminar.