Washington State Trial Law & Litigation Lawyer & Attorney : Robert M. Boggs : Seattle, Spokane, Tacoma, Yakima, Vancouver

Robert Ambrogi recently pointed out an upcoming service featuring mock juries on line at a relatively low cost.  For approximately $1500 to $2500 attorneys can submit a case in written form, in written form with audio or in written form with video.  After submission of the case a panel of on line jurors decide the case and the results are emailed to the attorney who submitted the case.  The service is called TrialJuries.  If anyone out there in the blogosphere ever uses this service I would be interested in any feedback.

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Mary Wishner at Trial Ad Notes posts about Attorney General Rob McKenna's recent settlement with a Canadian company over the poaching of 65 tons of geoducks.  The only reason I mention this is for the benefit of any readers out there who are not familiar with Washington's geoducks.

A geoduck (pronounced Gooey - Duck) is a clam that weighs from 1 to 3 pounds and can be found on the shores of Washington, British Columbia and Alaska.  There have been reports of geoducks weighing up to 15 pounds.  They live to about 150 years of age.  You have to see these things to believe it. The best picture can be found at a page on Evergreen State University's website which is here.  Their mascot is the geoduck.

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Clay S. Conrad at jurygeek takes the Texas Young Lawyers Association to task for publishing an article on their webpage, American Juror, that tells the public that attorneys, during voir dire, are looking for unbiased jurors who can weigh the facts fairly and decide the truth no matter where that may lead them.  Mr. Conrad maintains that if we tell the prospective jurors just that, we are lying thourgh our teeth and most jurors will figure that out and when they do there goes our credibility.

I agree.  We are looking for jurors who will be the most biased towards our case and who are close to the line at getting bumped for cause. And we want to knock out those who are most biased towards the other side's case.  Attorneys all know that and those that will step forward and say so will gain credibility. I once heardPaul Luvera give a talk on jury voir dire wherein he said just that.  He tells the jurors that he is looking for a jury that is allready leaning his way and that opposing counsel is looking for one that will lean towards their side. That is the truth and the jury should hear the truth.

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Washington wrongful death statutes contain some wrinkles that your clients may find to be quite unfair. You should be prepared to explain them and even more importantly you should know these wrinkles so that you don’t find out later that you’ve promised something that you cannot deliver.

In Washington, in a wrongful death action for the death of a minor child, the parents of the child are entitled to damages for the loss of the love and affection of the child and for the destruction of the parent child relationship. In many cases, especially those involving very young children, jurors can be quite generous in their verdicts for this item of damage. It is not unusual to see verdicts in excess of one million dollars. In addition the estate can recover for lost income (see below).  Be prepared to explain to the parents of an 18 year old child that they are not entitled to these damages. The statute that creates damages for loss of love and affection and destruction of the parent child relationship applies only to the loss of a “minor” child. See RCW 4.24.010. The only exception would be if the parents were dependant on the child for support which is usually very unlikely. So you will have to tell the parents of an 18 year old high school senior that the only thing that the estate of the child can recover is the loss of future income minus future consumption all reduced to present value which is usually in the $250,000 to $750,000 range depending on the child’s expected income earning capacity.

Another wrinkle in the law that seems unfair is as follows. If a person is injured and lives for a time after the injury but then dies as a result of the injury, the estate may recover the pain and suffering that the person experienced before he or she died if the person is survived by a spouse, child or stepchildren. If the person is not survived by a spouse, child or stepchild the estate may still maintain the action if there are siblings or a parent who is dependant upon the person for support which is an unlikely scenario in most cases. See RCW4.20.046 and 4.20.020.  The people you will have to explain this to could be the parents of a minor child who lived for several weeks after having been severely burned. There can be no recovery for the child’s pain and suffering. Or, imagine an elderly person who is widowed and had no children. Unless there is a parent (very unlikely) or a sibling dependant upon them for support (also unlikely) there can be no cause of action for the pain and suffering between the time of injury and the time of death. In fact if the person is quite old it is unlikely that there will even be much in terms of lost income. It is quite a pity that our state does not put much value on an elderly person with no children.  

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Metadata? What’s that? I am surprised at how many times those questions are asked  when I mention metadata. At a recent talk before the Yakima County Bar Association there was not a person in the audience that knew about metadata. Everyone had better start learning.

Metadata is data about data. Whenever you create a Word or Wordperfect document the program retains such information about the document as who originally created it, how many times and when it was revised, how much time was spent revising it and who revised it. It could be very embarrassing for a tech savvy client to find out that the letter you sent them was really a revision of another letter that you copied from another client’s file. Or, it would be useful for the opposing counsel to know that your terse letter setting forth your bottom line had been revised a half dozen times. Worse yet, attorneys that don’t know how to turn off their “track changes” or how to get rid of the information created by “track changes” risk having opposing counsel be able to see all of your changes to the document.

Is it unethical for opposing counsel to look at or look for this metadata? No, it isn’t according to a recent ethics opinion by the ABA. So …. all the more reason to learn about metadata. For a good source on this subjectgo to this post at Evan Schaefer’s Legal Underground for information and additional links to even more information.

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John Romano at Trial Lawyer Resource Center did a post some time back on strategy and predicting your opponents strategy  First he points out that "strategy" is a means not an end. The end is "to win the trial"  - "strategy" is "how we are going to win the trial."  A necessary step in determining your strategy is to predict the other side's strategy.  This is what he calls O.S.P.A. or Opposition Strategy Prediction Assesment. I will not go into the details of O.S.P.A. as the post is quite long.  My advice is to go to the post, print it out and save it for future reference.  It is a very good article.

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George Will today in his column points out  that out of the 82 cases that the Supreme Court heard last term 18 were from the 9th Circuit  -- 22% of the cases.  An even distribution between the Circuits would be 14.6%.  Further, out of these 18 cases the Supreme Court reversed 15.  Mr. Will points out that this is a winning percentage of .167 which is worse than the 1962 Mets winning percentage (.250).  On top of that the first decision issued by the Supreme Court this term was another reversal of the 9th Circuit.  Certainly food for thought and fodder to those that want to split the 9th Circuit into two circuits.

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While surfing the blawgs tonight I came across a post at PointofLaw.com that led me to a very interesting read.  The post refers to several posts on a blog called SurgeonsBlog published by an apparently semi-retired surgeon.  In a three part series the doctor blogs about his experience being sued.  The best way to get to these posts is to go to the PointofLaw post and click the links to "one, two, three."

To give you some idea of what the doctor thinks of attorneys consider the following quote:

The guys I dealt with seemed to be closer to reptilian than human, and they seemed perfectly happy to occupy that stratum. Loved it, I'd say. And whereas attorneys are the lizard-pimps, they have their snake-whores in the form of a pack of willing sleazy doctors.

As I read the posts I could sympathize with what the doctor experienced.  But as I read further I thought, "Come on, every defendant and every plaintiff thinks that the other side is lying and their lawyers are scum bags."  Also at first I was drawn into the doctor's position that this indeed was a frivolous lawsuit.  But then he started talking about the referring doctor "who turned on me", the hospital that sold him out and the mysterious entries on medical records that were certainly forged after the fact by others trying to cover their butts.

Granted lawsuits take their toll on all the parties (and attorneys for that matter) but I certainly would prefer our system than to some bureaucratic no-fault system that would leave many people under compensated.  Mediation also takes some of the sting out of the system but in my experience doctors seem to be extremely reluctant to mediate and want to dish out as good as they got.

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Try to keep a collection of sayings, particular words, particular phrases, quotes, news stories and anything else that might be useful in an opening or closing argument.  You would be surprised at how useful these will be to you in the future.  Sometimes when I look back  through what I have I  come up with a theme for my case or I find just that right word or turn of phrase that will work in an opening or closing.

I recently came across two more sources for my collection.  One is a website entitled QuoteDB     which contains numerous quotes on different subjects.  I found this at a post at  Personal Injury and Social Security Disability Blog.  The other was a new book entitled  Advocacy Words which was highlighted at a post at Trial Ad Notes.

On an amusing note, I found one quote at QuoteDB that I would dare a defense attorney to use in a closing argument in a personal injury case.  That quote is:

"The desire for safety stands against every great and noble enterprise." - Tacitus

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I read all the time.  When it isn't law it's history or philosophy.  My wife thinks I have too many books. She can't figure out why I keep bringing books home when I haven't finished the ones I already have.  My answer is why have a library if you've already read all the books in it.

In any event, reading history often times confirms my belief that we our profession is in fact very noble.  For example, the art of rhetoric died out during the Middle Ages.  It was resuscitated during the Italian Renaissance in the late 14th and early 15th centuries.  Humanism was alive again and the leaders of the Renaissance began to uncover all of the old texts from Greece and Rome that were harbored in monasteries all over Europe.  Among those texts were volumes on rhetoric like Quinitilian's (a lawyer by trade)  Institutia Oratoria.  During the Renaissance it was believed that men knew the difference between the good and the bad and had the capacity  to do the good.  But, they needed to be inspired and motivated to do the good.  That is where rhetoric came in.  It was seen as the means by which the leaders would inspire the people to do good.  So when you are in front of a jury think to your self that like lawyers of old you are there to inspire the jury to do the right thing, to rule in your client's favor because it is just and good.

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Mark Zamora at Trial Lawyer Resource Center has a good post on demand letters.  See also an additional comment by Ron Miller.  Mr. Zamora states the following:

Demand letters that do not demand a sum certain: With few exceptions, none of my demand letters states a dollar amount to settle. My clients always receive a copy of the demand letter sent out, and it has become too cumbersome to inflate a number in the letter only to have to convince our injured client to accept an offer that is lower than a stated amount. Exceptions of course are demand letters seeking policy limits.

I would like to add one additional comment to this from my perspective as a sometime defense attorney for school districts.  Demand letters that come with an inflated number get nowhere.  Every time we got a demand letter that asked for a number that was astronomical, the demand letter was essentially ignored.  We, the defense attorneys, were told to open a file and get ready to start discovery.  It was assumed plaintiff's attorney would be unreasonable.  On the other hand, demand letters without a number got more consideration as they were seen as an invitation to start some sort of dialogue on value.

And as a postscript.  In a mediation years ago where the initial demand letter had been astronomical, I distinctly heard from the room where the plaintiffs were caucusing a loud voice saying, "But what about the 12 million ......."

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In Washington, a portion of  Washington Pattern Jury Instruction (Civil) 1.01 reads as follows:

As jurors, you are officers of this court. As such, you must not let your emotions overcome your rational thought process. You must reach your decision based on the facts proved to you and on the law given to you, not on sympathy, bias, or personal preference. To assure that all parties receive a fair trial, you must act impartially with an earnest desire to reach a just and proper verdict.

We are asking jurors to do something that is not possible.  Our emotions are an intregal part of our reasoning process.  Emotion usually comes before reason.  An astronomer does not spend his or her time reasoning out the workings of the stars and planets without first having been drawn to the science by a sense of awe.  Even Donald Trump does not use his rational mind to figure out how to make millions without some emotional need to be the top dog.  In fact our limbic system which is part of the brain aids the rational brain by enhancing memory and it is thought that damage to the  limbic system may result in autism.  In short, we cannot function without emotion.

In ancient Greece pathos was an integral part of rhetoric.  Aristotle devotes many pages of his The Art of Rhetoric to emotions such as anger, calm, shame, pity and jealousy.

So, he asked rhetorically, what's the point here?  The point is that you will be much less likely to win your case if your argument or your theme is, "Let's be rational here folks.  We cannot be carried away be emotion.  We must dispassionately apply the law to the facts."  That is not going to work.  Even by saying it seems to imply that the speaker knows he's on the wrong end of what emotionally feels like the right thing to do.  So the art of rhetoric is to always find some emotion to tap into to support your reasons why your client should win.

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You know that the new federal rules will soon be in effect.  You know that there are dozens of books out there on the new rules and the whole field of ediscovery.  But, you just haven't had the time or inclination to crack those books open.  A great way to get going on the subject is to listen to podcasts.  Podcasts of course can be downloaded to your Ipod or other MP3 player.  You can then listen to them while driving, jogging or just laying on the couch.  And, they are free!

A great podcast of the subject can be found at Legal Talk Network.  It is a podcast of the Coast to Coast radio show put on by J. Craig Williams and Robert Ambrogi.  Give it a try.

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Some time ago I ran across the blawg "jurygeek".  The blawger, Clay S. Conrad, dedicated his blawg to juries and what makes them tick and all issues related to juries.  I have always been fascinated by how juries think behind closed doors and thought this was a great blawg.  Then I saw that he stopped posting back in April 2006 sometime and thought that the blawg had gone kaput.  I have good news.  Today Clay posted again and is back in business.  Best wishes on your blawg Clay, keep it up!

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In the State of Washington jurors are allowed to take notes and ask questions of the witnesses.  This has been the case for several years.  I'm am not sure how many other states allow this. But if your state is contemplating doing it I would urge them not to.

This has been my experience in Washington.  After the attorneys have questioned a witness, the judge turns to the jury to ask them if they have any questions.  If they do they write the questions on a piece of paper and the bailiff collects the questions and hands them to the judge.  The judge then looks them over and calls both attorneys to a side bar.  At the side bar the attorneys look at the questions, the judge indicates whether or not he or she is inclined to allow the questions and then asks the attorneys for their input.  The judge then decides which questions will be allowed and then asks the witness the question.  No explanation is given to the jury as to why certain questions were not asked.

The first problem I have with the process is that it adds a lot of time to the trials.  The second problem is that it appears to the jurors that there are some kind of shenanigans going on between the judge and the attorneys.  Further they are very puzzled as to why certain questions were not asked.  So if the point is to empower the juries, I think the opposite happens and they become more suspicious of the systerm.

For those who have not experienced this process this is what you can expect when you look at the questions.  Many times you will scratch your head and wonder if you and the jury are at the same trial.  It makes you very uneasy when you are left wondering whether or not you are gettting through to the jury.  On the other hand it does give you a heads up as to what the jury may be focusing on.  Many of the questions are just plain improper (asks for hearsay, irrelavent etc.).  And, some of the questions are actually good questions, are ones the attorneys hadn't thought of and make the attorneys a bit uneasy because they often times do not know the answer to the question.

But, ultimately, is it really an aid to discovering the truth?  I do not think so.  While there are good questions on occasion, most of them do not add much to the facts that the jury has already been given. Therefor, what you are left with is one more reason for juries to not trust the system. 

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This summer I attended a 10 day seminar put on by the National Institute for Trial Advocacy entitled Building Trial Skills. I found that the substantive information that was taught was pretty much standard fair with the exception of some technology information.  Some experienced attorneys might pass it up.  But what I found very useful for the beginning attorney or the more experienced attorney was the hands on work and the review of that work by some of the better, if not legendary,  trial lawyers in the Pacific Northwest.  Many of your opening statements, closing arguments, cross examinations etc. are taped and then you are allowed to sit down one on one with one of the legendary trial attorneys who then critiques your work.  You would be surprised at how much you learn doing that.  Knowledge of the technique is one thing, executing it is another. NITA puts this seminar on all year long in different regions of the country.  They also have a smorgasboard of other seminars including Advanced Trial Skills which I intend to take next year.

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Today I drove over to Seattle in sheets of rain.  The flooding in Seattle made national news tonight.  In any event the traffic was slow so I plugged in my IPod and listened toEvan Schaeffer's podcast of Advanced Deposition Techniques.  The subject of the podcast was gaining control of the deposition.  As I pondered what Evan had said this following pet peeve of mine popped into my head.

You are taking the deposition of the other party or one of the other party's witnesses.  You have just asked a question. The witness pauses a minute as if reflecting on the answer and right then the oppossing attorney blurts out "If you know".  That is not proper.  It is coaching the witness.  The only thing opposing counsel should be doing is making objections if necessary.  Either by intention or by happenstance that tells the witness to shut up.  The last time that happened I threatened to stop the deposition and resume it after the other counsel and I appeared before a judge.  He stopped doing it but not without protesting that he was not coaching the witness.  Baloney ... it's coaching the witness!

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I collect books on trial advocacy, communication, persuasion and just about any subject that will help with trial advocacy.  Like most people I have a hard time finding the time to read them all or to make a decision about which book I should read next.  One of those books sitting on my shelf is Beyond Bullet Points: Using Microsoft Powerpoint to Create Presentations that Inform, Motivate and Inspire  by Cliff Atkinson.  It will be the next book I pull off the shelf.  I stumbled across an old post from back in May 17, 2006 that gave a link to a one hour webinar that he gave on his ideas about using PowerPoint.  For those who have fallen asleep watching bullet pointed presentations this webinar will point you to a way of doing presentations wherein the audience (i.e. jury) will not fall asleep and will retain the information presented better.

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You are in trial.  The other side has just asked a question that will elicit testimony that you are pretty sure is not admissible or you just plain do not like it.  You shout, "Objection your Honor."  You have not cited an evidence rule.  The judge turns to you and says, "On what basis?"  Time stands still as you try to marshall a reason but seem paralyzed.  Lose that deer in the head lights look by relying on the Three Rs of Evidence.

Most rules regarding the admissibility of evidence fall into three categories. The first is Relevance.  Does the proffered evidence have the tendency to make the existance of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.  The second is Reliability.  These would be such rules as hearsay, or the authentication of a document.  The third is is it Right?  These would be rules based on some policy.  For instance the rule regarding post remedial measures is based on the policy that we want the Defendant to fix the problem without worrying that they are admitting liability.

If you remember these three Rs you should be able to grab onto to one of them and, for example, start arguing about why the evidence is unreliable and chances are you or the judge will finally hit on the actual rule. 

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I was recently reading an older post at  MyTrialBlog.com entitled "Presenting the Right Theory is the Key to Successful Trial Practice".  The blawger and author of the post, Mitch Jackson,  stressed how important it was to come up with the right theory and then stick to that single theory.  Everything you do in the case must support that theory.  This post reminded me of a case I had years ago where this point was driven home to me.

I had my hat on as a defense attorney and was defending a wrongful death case involving a five year old child who was killed in a parking lot at a school.  The plaintiff's theory was that the parking lot was nothing but chaos and confusion and therefor was an accident waiting to happen.  I approached the case from a proximate cause angle in that there was no proximate cause.  Assuming there was chaos and confusion it had nothing to do with this accident as the mother of the child  had safely escorted her child to the car but then left him on the traffic side of the car to get in on his own rather than putting him in the car seat and closing the door.  The child, once he was unattended, wandered away from the car and got in front of a pick up truck parked next to his mother's car just as it was leaving and was run over because the driver of the pick up could not see a small child who was in front of the truck but out of site.

Through out the trial I heard "chaos and confusion" and "an accident waiting to happen" over and over again.  During closing arguments the plaintiff's attorney just repeated this mantra over and over again and did not address proximate cause.  Of course during my argument I pointed out that the plaintiff's attorney never addressed proximate cause and I laid out the case for why there wasn't any.  During rebuttal I expected the plaintiff's attorney to address the proximate cause argument.  He never did.  He just once again said over and over it was all "chaos and confusion" and was an "accident waiting to happen.

The jury verdict was for the plaintiff.  I asked one of the jurors how in the world they found proximate cause.  Well, he said, it was an accident waiting to happen with all that chaos and confusion.  Point made.

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