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Washington Legal News

Date: 11/13/14

LAW Advocates, the wonderful non-profit organization that provides free legal assistance to low-income people in Whatcom County, is recognizing the volunteers of its Street Law program at the Whatcom County Bar Association meeting and luncheon on December 3. In support of this recognition, Mayor Kelli Linville has officially declared December 3 to be Street Law Day! 

At the meeting, one of the Street Law volunteers will be chosen to receive the first-ever Volunteer of the Year Appreciation Award, which will include a one week's stay at a 4-star+ oceanfront resort in Puerto Vallarta, Mexico!!

Any potential winner of the Appreciation Award and vacation package must either be in attendance at the meeting or send someone with their signed, dated proxy.

To learn more about this event and this appreciation award, please go to this link. We hope to see all Whatcom County Bar Association members attend, especially since this is the final meeting of the year!!

 

Date: 11/11/14

Brett Murphy attorney Paula McCandlis was recently chosen as a finalist for the Whatcom Women in Business Professional Woman of the Year. Paula had a lot of fun during the preparations for the event, which was also an auction to raise funds for educational scholarships. Paula also got to meet an extraordinary group of professional women who are contributing to the strength and growth of the Whatcom County community.

See Paula's video interview that she filmed as one of the finalists for this honor. While the chosen recipient of the Professional Woman of the Year was Carolyn Saletto, owner of Gym Star Sports Center, Paula's participation in the event let her build new friendships with other business women from the area, and support a worthy cause!

 

Date: 10/22/14

A lawyer needs to understand the first law of thermonuclear dynamics – energy can neither be created nor destroyed; it is merely transferred or converted from one object to another.

That’s what emotions are like. My presentation won’t be technical; it’s about surviving Street Law with family law questions. And the first thing you have to do is recognize the emotions and stay calm. You must exude serenity. Don’t make any sudden movements; keep a state of calmness around you. You do not want to absorb the emotions radiating off this person.

There’s a reason we don’t like family law. It’s because of the emotions.

First: stay calm

You will not follow the first rule of thermonuclear dynamics – you have a shield around you that cannot be penetrated by what is coming at you.

We went to law school and we understand elements, foundation, evidence, rule of perpetuities, we know these things. But I don’t remember one class about counseling, one class about therapy, or one class about emotions. No explanation was given for handling client emotions, opposing counsel emotions (often worse than the client’s) the court’s emotions (that can be horrible as well) none of that was taught to us. Yet, that is the root of the issue you are dealing with in family law.

So I will give you some help with that.

The most important job we do is to counsel our clients. And if we can do that, we have helped them. But to do that, you need to stay calm and not have an emotional reaction to what you are hearing.

I had a nightmare that led to an epiphany.

I was in the filthiest bathroom you can imagine, and I was supposed to clean it. So I’m on my hands and knees in urine, feces, and vomit, and suddenly, Commissioner Marty Gross comes running in, and she says, “What are you doing?! Your client’s kid is down at the bottom of the swimming pool, you need to do something!” And I wake up and I realized I had not only absorbed some of the emotional stuff going on in my cases, but I also felt it was my job to clean it up. It’s not.

I also felt it was my responsibility for what happened to these children, and it’s not. Trust parents to be parents. You need people who have problems to take responsibility for their problems.

One of my favorite questions I always ask someone in a consultation, at the end of the long description of what went wrong in their relationship, is “So what are you responsible for?” If you carefully analyze this with them, they have to take responsibility for what led them to this spot.

Second: Identify the Problem

Be specific about who is having the problem. Why is it the grandma who is pushing for more visitation with grandchildren on behalf of her child?  Why is it that the ex-wife displeased about the new girlfriend?  If you can stay calm, identify the problem, and identify who is having the problem, you are 90% there.

Third: Identify the Emotion

When people are trying to transfer their emotion to you, one way to avoid internalizing it is to figure out that emotion, nail it down, put it on the table to be looked at and dissected. If you can do that then;

1) the emotion doesn’t transfer;

2) the emotion dissolves and goes away.

We are horrible at this, as attorneys. They did not teach us this. This is why we like the law – because we don’t want to be therapists. We don’t want to be psychologists. We like rationality, we like logic, rules, procedures, we like objectivity.

But emotions drive every issue in every family law case. Figure out what the emotion is that is driving the case.

What you will find out rather quickly is that we are not good at identifying emotions. So I want to give you a hint about how to identify emotions. And I want you to practice it, with your family, children, co-workers, clients, opposing counsel, and get better at it.

When someone tells you about a problem they are having, you need to engage in active listening to identify their emotions. What you are saying to them is, “I’m hearing what you are saying to me. In fact, I’m hearing what you are saying to me when you are not even talking.”

By body language, body posture, tell this person you are watching them and are engaged. You are creating trust with them.

When talking with a client at first, I try to name the emotion they are feeling. You will know when you’ve nailed it on the head. It’s like a light switch goes on. The client sees you understand them, because you have nailed that emotion that sometimes they can’t even identify themselves.

So if you figure out the problem, figure out who is having the problem, and then figure out the emotional basis for the problem, you really can’t screw up from there. You have connected with them, you have helped them with the struggle they are having internally, that brought them to this spot.

That’s the key to surviving Street Law. Help recognize the emotion that drove the person to Street Law, and work past that. and don’t be afraid of the tears that might follow, that’s just an emotional reaction, and not all tears are bad, not all tears are wrong, it’s just how we process our feelings physically.

Question: Are there any books or materials you have found to help parse this out more?

Answer: Sign up for mediation and collaborative law training.  When I went to mediation and collaborative law training, we practiced a lot, and we received diagrams and lists of emotions. I remember thinking it was silly, especially the play acting part, but it works phenomenally, especially in your personal life. Seriously, knowing these tricks is a great way to diffuse a drunken holiday argument between relatives!

What is the number one emotion that people are going through in a family law case? Answer: grief and loss. When someone is going through a separation or a divorce, the only thing similar to this emotional process is a death. So you need to recognize that is the predominant process a person is going through when they come to see you.

There are the 5 stages of grief – denial, anger, bargaining, depression, and acceptance. You will see clients moving back and forth through these emotions, especially anger, and it’s OK. Just recognize these are the emotions you will deal with.

Clients are there to talk about it.  Our culture and society works by text and email, so we cannot pick up on the emotional reaction that a person is having. We can’t see those signs, we don’t know if we have identified their emotional reaction. So getting used to doing that, and doing that, makes all the difference in the world.

People will say, “I feel so much better after talking to you.” It’s funny because I haven’t helped them legally; mostly in Street Law there’s nothing I can do to help them. But it’s because we had a moment where we addressed an emotional experience they are going through, that they feel better.

So work at it – it’s not something they teach you in law school, and they should. It improved my practice, it improved my ability to communicate with clients, with other attorneys, and it stopped some of those nightmares where I was absorbing people’s emotional stuff.

Four: you can do this!

For Street Law, you might say “I’m not a family law attorney, I can’t do this.” Just remember, you went to law school, you took an evidence class, a procedure class, and those rules remain the same regardless of practice area. It’s still civil procedure and you still need evidence.  You file a motion in a civil case just as you do in a family law case. There’s nothing magical or different about it.

The number one question that came up when I was both doing Street Law and also with my family law clients is about Jurisdictional issues. In typical civil cases, we think about whether there is a Jurisdictional issue here.  In personal injury, we think about where does the defendant  live, and we think about whether we can get Jurisdiction under the long arm statute.

In family law, there are multiple layers of Jurisdictional issues. We have the UCCJA, which is the Uniform Child Custody Jurisdictional Act. This was developed so parents would not run state to state with their kids and file different orders in different states. So there are particular questions about childen and Jurisdiction.

Also, there are particular questions about child support modification, filing child support orders, the Jurisdiction there is the UIFSA Jurisdictional Act, and so, again, there are particular rules for Jurisdiction.

If a person comes to see you in Street Law and they have what appears to be a Jurisdictional question, it is worthwhile for them to call an attorney. A lot of family law attorneys can figure out the Jurisdictional issue pretty quickly. If a person comes to see you and they have an order from another state, most states retain their Jurisdiction over children, so you need to be cognizant of that and know that the Jurisdiction will stay with that state, for instance if they’ve issued a custody order or something like that you are stuck in the state that issued the order. So there can be trickiness with Jurisdiction that you may not be used to if you only practice civil law.

One last thing about evidence. In family law cases, this often gets forgotten, but evidence is extremely important to a case. If you think a person makes a certain amount of money, you need to show a paycheck. If you have been receiving harrassing phone calls, you need to show your phone, text, or email logs. A lot of things can be proved in ways other than just by a straight declaration. And it can be just as powerful, so think of ways to help that person get that information properly before the court that proves their case not just a Declaration that sets up a he said she said scenario.

So don’t forget your rules of evidence, don’t forget this is still civil procedure.

Five: Parenting Plans

I will talk about what I think most people fixate on regarding parenting plans when they come to see you at Street Law and the issues they want to talk about.

You can get all legal forms from the Washington State government website.

Many people who go to Street Law are holding a parenting plan in their hand. They have just printed it off and have brought it in to discuss. And working with them with this document goes a long ways in helping them. Many of the issues people want to discuss are related to the parenting plan.

Please, remember, even though it says in the title on the first page, parenting PLAN, it’s all about WHEN, not HOW. It’s about the time and the days; it’s not about HOW you parent. Be really clear about that.

Remember also that a court is only good at two things. They only do two things really well:

1) They make people pay money;

2) They put people in jail.

The court is not so good at regulating relationships. And if you think that’s going to happen in court, I need to disabuse you of that notion. Because the fact is, in the court system, many judges and commissioners in a family law case will say that if people leave the courtroom equally unhappy, they have done their job.  They don’t want to appear biased, they don’t want to appear preferential.

I’ve never heard a judge say, “Oh, I’m so glad you left him, you were so right!” They also don’t say, “You made the right decision, she was a whore.”  They don’t do that. It’s a no-fault state, they don’t care why you broke up, they don’t care what brought you to this moment. They don’t recognize the emotional place that brought you into that courtroom, and people get frustrated because their feelings are not being addressed. And they won’t be. Ever. So that’s the disconnect with taking these issues to court.

Family law cases are an ongoing train wreck. Every day is a disaster. I used to hate my phone and my email every Monday morning. I charged extra if you called over the weekend  because there was always something.

So, a pet peeve about the parenting plan. Make sure the case number is on it! It’s no good to help them with a parenting plan if the number never ends up on the front .

When people look at these parenting plans, especially pro se people, their first instinct is to say, “How many boxes can I check?” The instructions even say, “Check as many as apply.” So they have an urge to check all of the boxes. Yes, there will be circumstances where more than one box will apply, but don’t try to fit in every category.

You can see on the parenting plan that it is a proposed/temporary/final document, meaning it is the same document for all stages. Just check the box that applies for the circumstance.

In this next part, page 2, about the restrictions, this really kills the parents coming to Street Law. They REALLY want to check all the boxes here. And this is when identifying the problem and identifying the emotion really come into play. Restrictions can restrict the other parent’s time with the child.

But they are governed by statutes. There are definitions for what is abuse, what is neglect. It is not:

  • Too much sugar;
  • letting your child have exposure to the internet;
  • letting the child play on a Gameboy or Playstation all night.

You really have to make sure when you’re listening to someone that you’re able to distinguish what I call “parenting conduct” from actual statutorily defined bad conduct.

I don’t even call it “bad parenting.” What I’ve decided over the years is to call it “parenting philosophies.” Everybody has a different parenting philosophy. And sometimes the saddest case you ever see is when 2 people have gotten married, they love each other, they have a great relationship, and then they have a child. They discover that they have opposite parenting philosophies.  They cannot abide by how the other person is parenting. So they divorce. And that child will grow up and move on, and the parents will be apart even though they were originally well-suited.

There really are distinct parenting philosophies.  I would love to tell you that one of them is right. But there is no rhyme or reason. Children grow up – some become doctors, some go to prison. I cannot figure out if one kind of parenting philosophy created a more or less successful child.

So try not to judge people’s parenting philosophies.

In the restrictions section, show a little restraint, and if someone is talking to you about a violation of this section, they need to have evidence.  If there’s domestic violence or exposure to domestic violence in a relationship, have there been arrests? No contact orders? Just because two people are mean to each other, it doesn’t mean they are bad parents. Just because a person is a profound disappointment to you doesn’t mean they will be a disappointment to their child. And sometimes in a dissolution or break up, those parents just bloom and become outstanding parents.

What is the overriding rule of a parenting plan? What is the court’s rule?  Answer: The best interest of the child.

Whenever you are talking to someone in a family law setting, refocus them on that rule, because that is all the court cares about. Is the child doing OK? Is the child struggling? That is the court’s focus.

Yes, it’s painful for the other parent. But there is a difference between what the parent’s needs are and what the child’s needs are. And you can help a parent change their language to the language that the court must hear. Focus the parents on evidence – how do you know this child is missing you? What are you experiencing that tells you? And it helps the court if an unbiased third party has some insight or information to add, like a school teacher, a neighbor, or someone who witnessed something or saw something.

So put your evidence hat back on, and think about what is the best way to show what the child is experiencing.

On page 6 of the parenting plan now.

If you are ever, ever helping someone work on a parenting plan, the court doesn’t want to look at 10 pages. You can edit it, delete boxes that don’t apply, and shrink it down and remove any empty spaces. It’s a Word document so you can edit easily.

3.12

This is the second most-visited section when someone comes to talk to you about a family law issue. People always fight over who has the designation as being the custodial parent, and you can talk until you are blue in the face about how Washington State has parenting plans, we designate no custodian, blah blah blah. And the client will point out that the language is in there. But that is only to meet the requirements of some federal statutes related to food stamps, Social Security benefits, veteran’s benefits, not what most people think when they read that section.  For a long time this section was meaningless as it was interpreted to apply to other states and not Washington.

In December 2013, the Washington State Supreme Court said this designation must mean something. This is an interesting case because it wasn’t a divorce, it wasn’t a parenting plan, it was a parentage order.  The parents had not been married. The parentage order will determine who the father is with blood tests or a paternity affidavit, and ultimately they enter an order of parentage and a child support obligation.

But one sentence in the parentage order says one parent is designated the custodian of the child. The court said this designation had to be meaningful. For many parents, the parentage order designating them the primary caregiver is the only legal document governing their relationship with their children and the other parent. So this case really says that the custodial designation is meaningful and it counts.

So the case said that to change that designation, you need to do a support modification.

If anyone has questions about the relocation of a child, section 3.14 spells it out for you.

In some ways parenting plans are great documents because they are flexible, you can add information to them, but it is not a place for child support to be added, it is not a place for designation of who gets the tax exemption to be added, all the money stuff goes into an order of child support.

Six: Order of Child Support

Just know that two systems are running at the same time; the state administrative system, and the Superior Court system. The Superior Court order will trump the administrative order. Administrative orders are great because you need no attorney and are easy to use, but they don’t have the powers of equity.  They do not enter into analysis of excessive wealth or debt, or that one party paid for extra things for the child. Administrative court orders are rigid, and Superior Court orders have a great deal more flexibility and can apply equity.

In Street Law, we also see a lot related to child support modifications and statutes of limitations. It’s a 10-year statute of limitations. Every month when child support is due, that money becomes a judgment, and it has a 10-year expiration date.

One of the most common situations I see in Street Law as far as child support goes, is when people show up and they have collected no child support for many years because they didn’t want to have a fight. They didn’t want to rock the boat, things were going fine, and they knew that it would just create a war over the kids. So they waited, and now the kids are older, and they are ready to collect child support. And they have a right to do that. Remember when you see someone come to you for that issue, even though maybe the child support is a small amount, the key is the interest. It is not compounded interest, it is per anum interest. The maximum is 12% per year, which equally 1% per month. So the interest calculation will often be higher than the judgment amount. You want to direct that person to an attorney and let them know there are attorneys who will get these judgments and collect on them. I’ve helped many people I’ve met in Street Law by getting these judgments.

Those judgments are great to get, and because people don’t know how to do that themselves, it’s worth it, and you can put down your attorney fees, and sooner or later the judgment is paid off, and you get paid.

Seven: Protection Orders and Anti-Harassment Orders

These are common issues people will come see you about, but here’s the thing. The courthouse-assigned counsel will process an application for a protection order. A person needs no attorney to go with them, so just send them over to the third floor to the Office of Assigned Counsel, they can do the application, they get a court date, they either get a temporary restraining order or they don’t, but there’s no fee involved. The Sheriff serves it. The system is in place, and it’s effective.

A question that comes up all the time is: What is the difference between an anti-harassment order and a protection order?

Anti-harassment orders are heard on the 4th floor of the courthouse, but even if a client goes to the third floor to apply for an anti-harassment order, the staff will help facilitate that application and get the client to the 4th floor. There may be a fee associated with an anti-harassment order.

The difference: protection orders are concerned with people living in the same household, people who have been in relationships, people who have children in common.

Anti-harassment orders are more about neighbors fighting, employer/employee fights, those kinds of issues.

The Rules of Evidence do not apply to those hearings, so you need to warn them they need to bring in people that will testify. Those hearings are a little wild, and are free-form.

Eight: Assets and Debts

If they have assets, they will not be at Street Law. If there are assets there, it is worthwhile to have them speak to an attorney who can help collect the asset.

Debts are a huge deal. Sometimes they will need to be referred to a bankruptcy attorney. When people are in a dissolution situation, it is way cheaper to have one bankruptcy rather than two down the road. That’s always a good recommendation and a good way to get rid of a bunch of debts.

There’s a disagreement among attorneys about debts. There’s a certain philosophy where people think that when they get a divorce, they get to wipe everything clean off their credit. Or they want their credit score corrected. So people get very frustrated when they get collections calls on a mortgage or a car payment. If that’s the situation, help them get back in court, and ask the court to help them get relief from debt, especially if the other party was ordered to pay a debt and they didn’t.

Nine: Maintenance and Attorney Fees

Once in a while you see someone whose been kicked out, locked out, and cut off from all money, finances, everything. My rule here, which I learned from Liz Balas, is to go to court fast and get maintenance and attorney fees. The longer you wait, the harder it is to get it. So if someone is sitting in front of you, they need to run to court, file a motion, and get the money.

Ten: Getting Help

At the courthouse there are family law facilitators who meet with people to help them with their paperwork. Send people over there for help, but a cost is associated with their help, but it’s not too much. The websites are good, and if they don’t have access to websites there’s the law library. There’s no reason to buy the forms when you can download them for free.

In my experience, these are the 10 things you need to know to survive a Street Law clinic with a family law case.

- Paula McCandlis

Learn more about Paula at her biography page.

Date: 10/3/14

Brett Murphy attorney Paula McCandlis, who is also current Whatcom County Bar Association President, filmed an "interview" she did with Bellingham business attorney Rolf Beckhusen, regarding his neighbors, a new marijuana shop called 2020 Solutions.

The video was shown at the recent Bar Association lunch, and it got quite a reception. You will see why when you check it out on Paula's Blog.

Date: 9/30/14

In the five earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination, the specific preparation required to undertake an effective cross-examination, and the final preparation and the Ten Commandments of Cross-Examination.

In this last part of the article series, I demonstrate a few of the cross-examination techniques discussed earlier through excerpts from a cross-examination I conducted of a defense economic-loss expert a few years ago.

What follows here is my opening effort to discredit the expert. He fights me; he tries to avoid answering a “yes” or “no” question, but loses the fight – big time.

The bottom line – he assumes the plaintiff, a college sophomore, can become a CPA in three years, when it took the expert eight years after his sophomore year – including failing two parts of the CPA Exam!

 

BY MR. BRETT:                                           

Q.     Mr. ________, have you testified hundreds of times?

A.     In deposition, yes.                              

Q.     You testify regularly in court, don't you?       

A.     I have testified in court in excess of a hundred times over my career.                            

Q.     We have two witnesses estimating my client's economic loss, correct?                          

A.     Yes.                                             

Q.     Is it true that if plaintiff vocational rehabilitation expert’s assumptions are incorrect, his conclusions are incorrect?    

A.     That's correct.                                  

Q.     And is it also true that if your assumptions are incorrect, your conclusions are incorrect?      

A.     Yes.                                             

Q.     And this jury is going to have to decide whose investment program is most prudent.  So I'm going to ask about those assumptions you've dealt with.  I'm going to talk about your assumptions.  I'd like to start out with how long it's going to take to retrain my client, okay.  You assumed that she would begin an accounting course at Western Washington University in June of 2009 based on defense vocational rehabilitation expert’s report; is that right?   

A.     Well, if we can back up to the preface to your question.  I think you misstated what you're trying to do.  You kind of mixed apples and oranges.  We're talking about -- first you introduced total economic loss, and then you said that we had differences between the discount rates.  That's not correct.  There's a variety of factors --                                       

Q.     There are a number of things.  You different have assumptions, and we're going to go through all of them.  We'll make sure that we cover everything. 

A.     Oh, okay.                                        

Q.     You begin assuming she starts an accounting course at Western Washington University in June 2009, per the defense vocational rehabilitation expert, right?                       

A.     I said she could start an accounting course or a bachelor's degree.  She could get it marketing. She could get it in human resources.  She could get it in finance.  There is a whole bunch of different business related courses she could take.  But, yes, I assumed in June of '09.       

Q.     And you assumed that she takes a full load of 15 hours a quarter?                                 

A.     That's correct.                                  

Q.     And you assumed that she goes to school nine quarters without a break, correct?               

A.     That's correct.                                  

Q.     That's summer, fall, and winter of 2009; spring, summer, fall, and winter of 2010; spring and summer of 2011.  That's the nine quarters you're talking about, correct?                          

A.     Yeah.  Similar to what she would have done if she would have worked.  She would have worked full    time.                                            

Q.     And then you assume that she could attain 135 credit hours in those nine quarters, per the defense vocational rehabilitation expert's report, correct?                      

A.     Yes.                                             

Q.     And then you assume that she can get all of the schedules, the courses that she needs to graduate in that nine quarters, correct?                  

A.     Well, ask the vocational rehabilitation expert who researched that.  So I'm relying upon his opinions.                   

Q.     Then you assume that she would take the CPA exam in August of 2011, correct?                      

A.     Yes or before.                                   

Q.     And that she would then pass it?                 

A.     Yes.                                             

Q.     And then you would assume she would get a CPA. She could start her work one month later, in September 2011, correct?                         

A.     Well, let's just back up a little bit.  What I have assumed is that she graduates with a certificate in accounting.  You have to have -- before you can sit for the CPA, you have to have certain course curriculum.  I'm assuming that she takes that course curriculum and that within the first year of employment she'd be able to either pass the CPA exam before graduation or within the first year of graduation.                        

Q.     So she has two years and four months -- and by the way, she's working quarter time during this period of time, correct?                         

A.     Of ten hours a week, according to the defense vocational rehabilitation expert, yes.                                             

Q.     Can we call that quarter time?                   

A.     Yes, you can.                                    

Q.     And during this period of time she's also taking care of her other medical and physical needs while she's working ten hours a week and going to school full time, correct?                       

A.     I would assume so, yes.                          

Q.     And she's doing this while she's doing any necessary surgery on her foot, correct?          

A.     Again, that would depend upon the necessary schedules of her medical care, and that's up to a physician to opine on.                           

Q.     Okay.  And so that's the assumption you're working, with as far as getting her retrained?   

A.     Well, I'm relying on the defense vocational rehabilitation expert’s opinion that indicates that she could be retained by September 2011 given all the facts and circumstances of this case.                                       

Q.     But you're not relying upon the testimony of plaintiff’s vocational rehabilitation expert, that it would take her five years to get a BA and an MBA.  You are using the defense vocational rehabilitation expert instead, correct, for your assumptions, not the five years?                                      

A.     Well, I'm using that she doesn't need an MBA to restore her earning capacity.  That would be overkill.                                        

Q.     Okay.  So you actually studied for an MBA yourself?                                        

A.     I did.                                           

Q.     You graduated from Washington State University in 1973?                                            

A.     Yes.                                             

Q.     And you then took courses towards an MBA at Seattle University in business administration throughout 1976, correct?                        

A.     Yes.                                             

Q.     You then decided not to complete the MBA degree, correct?                                         

A.     Right.  Rather than write the thesis, I decided to study for the CPA exam.  I was working for an accounting firm, and I wanted to be a CPA.       

Q.     So you last took an MBA course in 1976?          

A.     Yes.                                             

Q.     And then you took the CPA course twice, in 1977 and 1978, correct?                               

A.     I believe that's correct.                        

Q.     And there are four parts that you have to pass in order to pass that course, correct?              

A.     At that time there were, yes.                    

Q.     And what were they?                              

A.     Let's see.  There was practice, law, auditing, and -- I can't remember what the third one is. It's been long ago.                              

Q.     So you took the four parts, and you failed two and you passed two the first time through?       

A.     That's correct.                                  

Q.     Do you remember which two you passed?            

A.     Yeah.  I think I passed the law, and I think the other one was theory.                            

Q.     And which two did you fail the first time?       

A.     As I recall, it was the practice.  That's with the problems, and then I can't remember what the other one was.                                   

Q.     And then you studied it for another year?        

A.     That's correct.                                  

Q.     And then the next time you took it in '77 you didn't have to take the first two that you passed the first; right?                                

A.     That's correct.                                  

Q.     You just had to focus for a year studying that. And you took those two and you passed it the second time, right?                              

A.     That's correct.                                  

Q.     So what happened is it took you three years from the time you stopped studying for the MBA to pass the CPA examine; is that right?                  

A.     That's right.  Because my MBA program is not a certificate in accountancy.  So I had to do a lot of studying --                                   

Q.     Okay.                                            

A.     -- to learn accounting because I had studied finance and economics in my coursework.          

Q.     So you took six years from the time you got a BA from Washington State University to the time you became a CPA?                                    

A.     That's correct.                                  

Q.     In fact, it took eight years from the time you finished half of your college program, which is the position that my client is in, to get your CPA; is that correct?                       

A.     Before the State issued the actual license, yes. 

Q.     And your economic analysis assumes that while it took you eight years, my client can do it in two years and four months; is that correct? 

 

Bias Questioning #2 – This line of questioning was based on information culled from the expert’s C.V. and prior deposition. Note the careful wording of the final question. It doesn’t make any difference how he answers.

Q.     Now, in your CV you say, In addition, he frequently contributes to the following publications:  The first is Industrial -- pardon me -- Insurance Adjuster Magazine.  Do you know who their readers are?                           

A.     Sure.  I think I know who most of the readers are.  I can't tell you everybody.                

Q.     What is the market there?                        

A.     The market is usually people who are involved in the claims adjustment process, but would include insurance company representatives; people who sue insurance companies; it would include attorneys that represent insurance companies; and other people that are involved in that industry.       

Q.     When you say adjust, you mean settle insurance claims?                                          

A.     Yes.                                             

Q.     Now, you also publish to the Seattle Claims Adjuster Association.  Who reads that?           

A.     Those are people that are involved in disputes. They tend to be insurance adjusters. Articles that I write are intended to tell them, people who deal in these issues, how to properly evaluate.                               

Q.     You also contribute frequently to the Tacoma/Pierce County Claims Adjuster's Newsletter.  Who publishes that?                 

A.     The Tacoma/Pierce County Claim Adjuster's Association.                                     

Q.     And in these publications -- and according to your CV these are the only publications you contribute to -- you write articles on how to measure income loss in economic disputes, correct?                                         

A.     I think it also mentions that I write articles that set the standards for industry practice.  I write the -- there are standards that accountants have for --                                      

Q.     I didn't ask what the standards are --           

THE COURT:  Just focus on the question, please.                                                 

Q.     Do you get business by writing in these publications?                                    

A.     No.                                              

Q.     Do you keep copies of the articles that you write for these publications so that I can read them?  

A.     Not generally.  They're informal articles that are put into magazines and newsletters.          

Q.     Have you in the past been a member of the Seattle Claim Adjuster's Association?                    

A.     No.  You can't be a member, unless you're an Adjuster.                                        

Q.     Let me ask it again.  Have you been a member of the Seattle Claims Adjuster's Association?       

A.     Oh, okay.  Let me answer it this way:  Many years ago before the bylaws changed, the answer is yes. Over the last 20 years, the answer is no.        

Q.     Let me go back to the question again. Have you been a member of the Seattle Claims Adjuster's Association?                                     

A.     In the very distant past, yes.                   

Q.     Okay.  And have you advertised for business in the publication of the Seattle Claims Adjuster's Association?                                     

A.     Yes.                                             

Q.     Isn't it true that writing articles about how to calculate economic loss in the Insurance Adjuster
Magazine, the Seattle Claims Adjuster's Association Magazine, the Tacoma/Pierce County Claims Adjuster's Newsletter and then listing those publications on your resume and advertising in the publication of the Seattle Claims Adjuster's Association is a method to communicate to defendants, even of those who do not have insurance, that you can be relied on to take a position favorable to the defendants on the issue of economic loss?  (Emphasis added.)                             

A.     No.                                              

 

I've enjoyed writing this series of articles on a topic I feel is deeply important to any trial attorney. While the concepts discussed throughout the series can be complex and will take practice to master, they are effective and time proven. thanks for reading.                                         

- Dean Brett

Date: 9/9/14

In the four earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination, and the specific preparation required to undertake an effective cross-examination. In this final part, I discuss final preparation and the Ten Commandments of Cross-Examination.

Final Preparation

We often prepare our witnesses for cross-examination by bringing them into the office, sitting them down, taking the role of the Devil’s Advocate, and subjecting them to a vigorous cross-examination.

Is it not just as important to prepare the cross-examiner?

Have your expert, your teacher, or a consultant in the field hired for the purpose, come into the office, sit you down, and play the Devil’s Advocate with you by assuming the role of the adverse expert witness.

After your general and specific preparation, you should have developed a number of lines of questioning which can be tried out on the “adverse expert.” Those which spring from your failure to understand the intricacies of the specific field of expertise can be set aside or refined. The general propositions that you wish the adverse expert to agree with in utilizing cross-examination can be double checked for universal acceptance.

It is even easier to complete final preparation for the destructive approach involving attacks on the expert witness credibility, because you should know for each line of questioning both all of the questions and all of the answers. Try them out on a friend or relative. If you are too embarrassed to have your friend watch you attempt to destroy the expert’s credibility for fear that he will fail to understand why you are being so aggressive and unrelenting, it is likely the jury will have the same reaction.

Prior to trial you will then have several alternative lines of questioning prepared in advance. They should not be placed in any particular order until the completion of the direct examination, where they can be ordered in light of the testimony and other lines of questioning developed through observation of the direct examination.

Conduct of Cross-Examination

No work on cross-examining expert witnesses would be complete without citation of Irving Younger’s Ten Commandments of Cross-Examination.

Without further introduction, the “Ten Commandments” are:

1) Be brief.

2) Use plain words.

3) Use only leading questions.

4) Be prepared.

5) Listen.

6) Do not quarrel.

7) Avoid repetition.

8) Disallow witness explanation.

9) Limit questioning.

10) Save it for summation.

To these I add four suggestions:

1) Do not read the questions. As simple as it seems, this admonition is too often neglected by those who bring a long list of questions into court and proceed to read them to the expert witness.

“Written Questions – This mode of cross-examination is completely lacking in dramatic affect and boring. Furthermore, it compels you to take your eyes off the witness (thereby preventing you from observing his demeanor): off the trial judge (thereby preventing you from observing his reaction to or tolerance of what is going on and what attitude he is projecting toward the jury): and off the jury (thereby preventing you from observing their level of interest, whether they appreciate the points you are making or if further emphasis or elaboration is required, and whether they are getting progressively friendly or hostile as the examination proceeds).” Habush, Art of Advocacy - Cross Examination of Non-Medical Experts, page 1-11.

2) Do Not Take Notes. If you must have notes, have someone come into the courtroom and take them for you.

There is one exception to this rule, an exception usable only once throughout any trial. If you receive The Answer of Your Dreams, stop everything. Take out a notepad and write the answer down slowly and carefully, one word at a time. Rip that page out of your notepad, place it on the corner of your counsel table, put a paperweight on it, and throughout the trial whenever you want to draw the jury’s attention away from something a witness is saying, remove the paperweight, pick up the page, read the answer, and smile. In the middle of final argument, stop, walk back over to the counsel table, remove the paperweight, pick up the page, and read the answer to the jury. If you are not willing to make that kind of production out of the notes you take during cross-examination of the expert witness, then the notes you take are not worth the loss of concentration on the witness and the jury.

3) Do Not Panic When You Get the Wrong Answer. If you do get the wrong answer, it is probably not the answer itself but your reaction to it that does the most damage. Be prepared. It is going to happen. Be prepared to act as if the answer either is of no significance at all, is a ludicrous misunderstanding of the question, or is exactly what you were hoping the witness would say.

4) Prepare a Strong First and Last Line of Questioning. Always have a line of inquiry ready to end your cross-examination. It should be thought out, written out, and memorized prior to the direct examination. Once the direct examination is over, it is too late to think of a good final series of questions. You must have these questions ready so that if you get into trouble you can end on a positive note. Always end with a bang, not a whimper.

Selection of the opening series of questions may be more difficult, depending on your approach to the witness. The safest route is to begin by attempting to use the expert witness in a positive way. Obtain as much agreement as possible before turning to a neutralizing or destructive approach. However, if you face an expert witness who you must attack as a hired gun, a biased observer, a liar, or all three, then forget any effort to use the witness in a positive manner and begin directly with the questions most likely to shake the expert’s confidence. Either lull the witness at the beginning or shake him at the beginning, one or the other.

A particularly effective technique, if you can pull it off, is to begin on a positive note with the expert witness using him to build your case in a friendly manner, coaxing all the positive information possible out of him, and then letting him become uncooperative. After he has become unreasonable, then turn to the neutralizing and destructive lines of questioning in “response” to his uncooperative position.

Summary

Effective cross-examination of the expert witness in his own field of expertise can only be accomplished with thorough preparation through learning the expert’s subject, scouting the expert, using your own expert, establishing realistic goals, then by preparing a number of alternative lines of questioning to use, based on a risk-benefit analysis to utilize, neutralize, or destroy the witness.

In the final part of this article series, I will provide a sample cross-examination of an expert witness, to illustrate my points.

Bibliography

Baum, David A., “Taking On the Opposing Expert; An Approach to Cross-Examination,” Trial, April, 1984.

Habush, Robert L., Art of Advocacy: Cross-Examination of Non-Medical Experts, Matthew-Bender, 1984.

Houts, Marshall, Art of Advocacy: Cross-Examination of Medical Experts, Matthew-Bender, 1982.

Keeton, Robert E., Trial Tactics and Methods, Little, Brown & Company, 1973

McElhaney, James W., Trial Notebook, The American Bar Association, 1981

Romano, John F., “Cross Ups in Cross-Examination”, Reference Material ATLA, 1984 Annual Convention, Seattle, Washington

Striker, The Art of Advocacy, 1954

Trine, W. A., “Cross Examining the Expert Witness in the Products Cases,” Trial, November, 1983

Walter, Michael J., “Using the Opponent’s Expert to Prove Your Case,” Litigation, Winter 1982

Wellman, The Art of Cross-Examination, 1903

Younger, Irving, The Art of Cross-Examination, American Bar Association Section of Litigation, 1975

 

Date: 9/3/14

In the three earlier articles of this series, I discussed the reasons why you need to cross-examine an expert witness, the four main advantages a trial lawyer has over an expert witness, and the four stages of general preparation for the cross-examination. In Part 4, I will discuss the specific preparation required to undertake an effective cross-examination.

Specific Preparation

After completing these four stages of general preparation, and well before trial, prepare as many specific lines of questioning as possible, each directed at the goal of gathering specific ammunition for use in final argument.

For purposes of suggesting alternative possibilities, these potential lines of questioning are divided into three conceptual categories.

1) The utilizing approach accepts the expertise of the witness, recognizes that he is being favorably received by the jury, presumes that the likelihood of successfully attacking his credibility is outweighed by the danger of jury resentment should you attack and fail to destroy him, and instead uses his expertise to establish positive information supporting your position.

2) The neutralizing approach avoids an attack on the expert’s credibility, but neutralizes the effect of his testimony.

3) The destructive approach aims at destroying the credibility of the opposing expert.

Rather than attempting to “destroy” each expert witness, a difficult and dangerous task, perform a risk-benefit analysis and choose an attainable goal, such as utilizing or neutralizing the expert, depending on the damage done by the testimony, the perceived ability of the witness to withstand a destructive cross-examination, the reaction of the jury to the witness, and your own level of experience at cross-examination and knowledge in the field of expertise.

The Utilizing Approach

Where the expert is honest, impressive and liked by the jury, attempt only the utilizing approach to establish information favorable to your case such as:

(a) General principles of the expert’s discipline with which all experts agree – such as principles of anatomy and physiology on a medical issue, or;

(b) Points of agreement between the adverse expert and your expert (taken from the deposition you have conducted to pin down these points of agreement after your own expert has delineated them for you.)

Again, the advantage of this approach is that you can prepare for it in advance and it is therefore less apt to end in disaster.

Several excellent examples of a utilizing approach with medical witnesses are found in Marshall Houts Art of Advocacy: Cross-Examination of Medical Experts, at Section 107 through Section 1.13.

Generally the utilizing approach is less risky, so it can be used with a strong expert who would likely withstand a destructive cross but who must be “examined” so as to give the impression of confrontation to “soften the impact.” It is less abrasive, so it can be used where the jury seems to like the expert and would resent a destructive approach. It is easier to perform, so it can be accomplished by a well-prepared novice trial lawyer. But it may be inadequate to save the case where the expert’s testimony has destroyed an essential element of the case. In that situation, a riskier cross must be undertaken unless you have foreseen that situation in pre-trial preparation, in which case you should have considered settlement and avoided the problem altogether.

The Neutralizing Approach

Where the expert is honest, impressive, and well-liked by the jury – but mistaken in his conclusions, use a neutralizing approach to take away the effect of his testimony without attacking his credibility. Here is where your work with your own expert to find the error in the adverse expert’s opinion pays off. A jury is more likely to reject the adverse expert’s theory than to reject him as a person as a result of destructive cross-examination attacking his credibility. Jurors are reluctant to believe a witness, even an expert witness, is motivated by prejudice or personal interest.

Where two experts testify to opposite conclusions, the lawyer who attributes the disagreement to the bias, prejudice, or corruption of his opponent’s expert will likely lose to the lawyer who accepts the opposing expert as a nice person who has simply made a mistake – a mistake that is clearly and simply explained in final argument (not in cross-examination) after the ammunition for the analysis is obtained through neutralizing cross-examination.

An expert can be neutralized by an examination obtaining his admission that his opinion is derived from certain facts or assumptions. It is not necessary to force the expert to admit that the facts or assumptions are incorrect. That can be left to direct or cross-examination of other witnesses. In final argument, you then neutralize the expert by pointing out that the expert may be qualified and may have properly reasoned to his conclusions – but from facts or assumptions demonstrated to be untrue.

For example, the loss of earning capacity conclusions of the expert economist can be shown to be based on certain facts and assumptions regarding life expectancy, proper discount rate, earning capacity prior to injury, and degree of vocational limitation imposed by the injury, the last factor usually based on the testimony of an expert vocational rehabilitation consultant. Once the economist has admitted his conclusions are based entirely on his acceptance of the conclusion of the vocational rehabilitation consultant, the economist (perhaps admired and accepted by the jury) can be neutralized by an attack on the supporting conclusions of the underlying vocational rehabilitation expert (who may not be as impressive or as well liked.)

An expert can be neutralized by obtaining his support for the truth of propositions which are either demonstrably untrue or contrary to the beliefs of a majority of the jurors. The propositions need not even be central to the claim, so long as in final argument you infer that any expert who believes the known falsehood to be true is probably also wrong on his central conclusion. Conclusions of experts who do not use “common sense” are easily disregarded by juries.

Another classic neutralizing technique is “the wedge” whereby the expert is enticed to concede that his field, unlike physics or mathematics, is an imprecise area where reasonable people – including expert witnesses – can come to honestly held differences of opinion. Ultimately this admission allows the jury to disregard experts from both sides and decide the issues based on other facts developed in the presentation.

The neutralizing approach, like its utilizing counterpart, is less risky than the destructive approach because it does not involve a toe-to-toe confrontation with the expert witness, a dangerous zero-sum game with a clear winner and a clear loser. It is harder to implement with a court-wise expert than a mere utilizing technique, but when successful it allows the jury to decide in your favor without having to reject an honest, impressive, well-liked expert witness.

The Destructive Approach

The destructive approach directly attacks the credibility of the expert. It therefore will be most vigorously opposed by the expert, and if the witness is liked by the jury, an unsuccessful attempt at destroying the expert will be resented.

How to impeach the expert is best covered in Younger’s The Art of Cross-Examination.

One must prepare in advance of the cross-examination any attacks on an expert for inability to perceive, recollect or communicate; for bias, prejudice, interest, or corruption; for prior convictions, prior bad acts, or prior inconsistent statements; and for a poor reputation for truth and voracity. Never “fish” for answers on credibility at trial, the expedition is too obvious, both to the witness and the jury.

Direct attacks on inconsistencies in the testimony of the expert witness fall into two categories: the testimony may be internally inconsistent or externally inconsistent. External inconsistency, where statements of the witness are shown to be contrary to demonstrable facts or widely held beliefs, was explained under the neutralizing approach.

Examining for internal inconsistency is much more difficult because both contrary propositions come from the expert witness himself. Unless you are careful the expert will withdraw one statement, modify one, or claim that your lack of understanding of his field prevents you from understanding of his field prevents you from understanding that the propositions are not inconsistent. Approach obliquely, at separate parts of the cross, first the least strongly stated proposition (to lock it in, or failing that, to abandon the line of questioning) then establish the proposition more central to the expert’s position. Do not confront the expert with the inconsistency. Save analysis of the internal inconsistency for final argument, merely obtain the ammunition in cross-examination.

Before using the destructive approach consider two warnings.

First, Gerry Spence, perhaps the greatest trial lawyer of our time, and certainly a man capable of destroying an expert where there is any opportunity for attack, warns us never to kill the witness without the jury’s permission. Just because you can destroy the expert does not mean you should. Firs the expert must do, or be led to do, something which allows the jury to understand why his credibility must be directly attacked.

Second, from Machiavelli, never strike at the King unless you can deliver a fatal blow. If you use the destructive approach, prepare well in advance and be sure you have your facts assembled before you begin. A trial is a contest to develop and keep credibility. At the end of a direct attack on the credibility of the expert witness, someone’s credibility will be destroyed – the expert witness’ or the attorney’s.

Destroy reluctantly, but thoroughly.

In the final part of the article series, I will discuss the final preparation and the “Ten Commandments” in conducting a cross-examination.

- Dean Brett

Date: 8/27/14

In the first part of this article series on the topic of how to prepare for cross examination of the defense expert witness, I discussed why an attorney would cross-examine a defense expert, and the advantages that expert has in influencing a jury. In the second part of the article series, I reviewed the four primary advantages that a trial attorney has against an expert witness in his own professional territory.

In this third part of the series, I’ll discuss the four stages of general preparation for the cross-examination of the defense expert. I have found throughout my career that each stage is crucial to enabling me to deliver the most effective cross-examination possible.

General preparation for cross-examination of a defense expert involves four stages:

1) Learn the expert’s subject;

2) Scout the expert;

3) Use your own expert;

4) Establish realistic goals.

Learn the expert’s subject

With help, time and perseverance, you can learn all you need to know about the usually very narrow part of the subject involved as it applies to your client’s situation.

Find a teacher, perhaps a professor at a local college, to conduct a one-on-one directed reading course. For about one-fourth your hourly rate he will review the literature in the area, recommend several general articles to familiarize you with the field, select articles to familiarize you with the field, select specific materials focused on the narrow aspect of the science involved, and then answer questions the readings raise relevant to your fact situation. You would be surprised how hard a college professor will work for $100 an hour – if he hasn’t already learned he can make more money as an expert witness.

 It’s a great learning opportunity. You can develop some tremendous friendships. If you do it right the first time, you can develop your own expertise in the subject for use in other cases. And sometimes you can even develop your teacher into an expert witness for your own side as he becomes interested in the forensic aspects of the subject matter.

Robert L. Habush’s Art of Advocacy: Cross-Examination of Non-Medical Experts, by Matthew-Bender at Section 1.18(2) lists the more common sources for gathering technical data for use in cross-examining non-medical experts. Harry Philo’s Lawyers Desk Reference can also be an invaluable resource.

If you are going to litigate in a technical area, you have an obligation to learn that field of expertise. A lawyer should no more file a malpractice action against an accountant without understanding the basic principles of accounting, than he would file a contract action without understanding the basic principles of contract law.

If you do not have the time to learn a subject thoroughly enough to face an expert witness, associate someone who does, then practice in another area of the law. But if you do accept the challenge of learning a new field, the experience can be tremendously rewarding.

Scout the Expert

If you face an expert who has published in his field of expertise, then it is worth your while to obtain and review everything the expert has published. Your teacher or your own expert can trace the articles through the appropriate professional index. Index the publications:

(a) for contradictory statements for use in impeachment,

(b) for general principles supportive of your theory, and

(c) for embarrassing quotations about the limits of the expert’s knowledge.

It is amazing how experts writing for each other in technical journals constantly remark about how little they know and how much research there is to do, yet faced with a jury of laymen they can appear so sure of a conclusion adverse to your client – until cited to their own comments about the limitations of knowledge in their field of expertise.

 Even if the writings are not exactly on point, they will often give you a flavor of the expert’s reasoning process, style and personality. And if you are reading articles by an expert, be sure to read the criticisms of those articles by other experts.

Where the expert has not published extensively but has previously testified, trial transcripts and depositions can be obtained from friendly trial lawyers. Start with Jury Verdicts Northwest, a service which compiles all verdicts rendered in Washington State with annotations including the names of the attorneys and the experts called by both sides. Go to the reports, call the opposing attorney and get a copy of the expert’s deposition, listen to a few war stories on how to approach him at trial, obtain the lawyer’s assessment of the expert’s strengths and weaknesses, and if the case was appealed, get a transcript of the trial testimony.

Do all of this before your own deposition of the expert witness. Read the material you obtain. Every expert has his own little tricks to avoid a question he does not want to answer, just like the rest of us. I know I use the same tricks over and over again, and I assume experts do too. And if you have seen a technique before, be waiting with a response.

The heart of preparing for cross-examination of the expert witness is a thorough deposition fully exploring the expert’s qualifications, and conclusions, then assumptions, data, and reasoning used to reach those conclusions.

Use Your Own Expert

Use your own expert to help you learn the subject matter, to scout the adverse expert, and to prepare your cross-examination.

Since anything that can possibly go wrong with the cross-examination of an expert usually does, try out each line of questioning on your own expert to find the defects in your comprehension of the field which may make particular approaches unworkable.

If the upcoming trial is really a battle of experts who disagree, do not let your expert take the position that he is correct based on his superior skill, knowledge, and training. Make the expert explain to you, in simple lay terms, precisely where the adverse expert agrees on common ground, where he accepts different assumptions or “factual” data, where his approaches and reasoning processes differ, and where in each instance the opposing expert is in error.

Attacking the opposing expert as unqualified and biased is not enough, and at times it is even counter-productive, when a jury will more easily believe the expert has simply made a mistake and come to the wrong conclusion, particularly when you can point to exactly where the error was made. Make it an obligation of your expert to explain to you why the defense expert is wrong, so you can explain it to the jury.

Establish Realistic Goals

From the moment the client first walks in the door, everything a good trial lawyer does is focused on one moment – the opportunity he has to stand before the jury in final argument and explain the client’s plight.

Every action the personal injury trial lawyer takes is designed either to prepare for that final argument or to convince an insurance company to pay money so that final argument is never delivered.

Cross-examination is no different. It is merely another opportunity to gather ammunition for final argument. Every cross-examination, every line of questioning, every question is subject to one scrutiny – “How will this help me in my closing argument to the jury?”

The general goal of cross-examination is to advance the “theme” of a case by securing the ammunition needed for final argument.

The conceptual error made by too many lawyers is to analyze the cross, independent of the entire trial, and thereby to set an unrealistic goal – usually the goal of “destroying the witness.” Because of the witness’ combination of expertise, stature, intelligence, and experience, it is unrealistic to expect to “destroy” each expert. Set an achievable goal. Wigmore said that the goal of cross-examination should be to “soften the impact of the witness by confrontation.” With an effective expert, the goal may be no more than to prevent the expert from winning the case for the other side. Don’t expect to win your case in cross-examination of your opponent’s experts, you will be doing better than most if you break even and avoid a disastrous loss.

In Part 4 of this article series, I will discuss the specific preparation of gathering ammunition for use in final argument.

-Dean Brett

 

 

Date: 8/18/14

Motorcycles are a lot of fun to ride, and the rate of motorcycle ownership in the U.S. has risen dramatically recently, with a 75% increase in registrations between 1997 and 2006. The average age of riders has increased as well, from 27.1 years in 1985 to 41.0 years in 2003.

However, the sad reality is that the lack of protection around the rider also means that motorcyclists are at a higher risk for serious injury or death than people riding in vehicles where metal, seat belts, and airbags provide protection.   The larger size of cars and trucks makes them more visible to other drivers, unlike motorcycles that are significantly less visible to other drivers.    

I myself love motorcycles, and I understand why so many people are enthusiasts. I very much prefer to see motorcyclists out on the roads having a good time.  I don’t want to see them (or their heirs) sitting in my office following a motorcycle accident. 

Motorcycles are fun to ride but deadly in a crash

The statistics regarding motorcycle accidents are truly alarming. According to data from the Centers for Disease Control and Prevention (CDC), while in 2008 motor vehicle crash-related deaths involving cars and light trucks reached an all-time low in the US, motorcyclist deaths reached an all-time high, more than doubling between 1999 and 2008.

Many motorcycle accidents happen because motorcycles are less visible than other vehicles on the road, and so other drivers simply don’t see the motorcycle before hitting it.  Thus, in order to make motorcycle riding safer (and thus more enjoyable for everyone), it is important for riders to first; be aware of this problem and second; to do something about it.  This concept of increasing motorcycle visibility is called “conspicuity.”  

Conspicuity – a funny word for an important motorcycle safety concept

The first time I heard the word “conspicuity” was at a deposition of a state trooper for a motorcycle fatality claim I was handling.   It essentially means the art of being conspicuous.  Although it is a funny looking and sounding word, it’s also a crucial one for any motorcyclist. The Washington State Motorcycle Operator’s Manual has a complete section devoted to “Conspicuity”, further indicating how critically important the concept is. To see the section on Conspicuity, click the above link and go to page 32.

Increasing conspicuity means increasing safety

The section has many excellent suggestions for staying visible, or “conspicuous” to other drivers.   It discusses things like:

  • wearing bright colored clothing;
  • always using the headlight;
  • always signaling turns and lane changes;
  • adjusting driving techniques;
  • increasing following distances;
  • never riding in the blind spot of another vehicle;
  •  tapping brake lights when being followed to closely.  

Motorcycle riders need to do everything they can to improve their conspicuity to help give other motorists the opportunity to see and avoid colliding with the motorcyclist.  All of the suggestions in the Operator’s Manual combine to make motorcyclists more visible to other drivers, and hence more likely to avoid being injured or killed.

I wish I could go back in time to review these safety tips with my motorcycle fatality clients. While accidents are often unavoidable in a world where most vehicles outweigh and outsize motorcycles, extra caution and attention to conspicuity may well have made a difference.

-Steve Knapp

If you have been injured in a motorcycle accident and need information about your rights and options, contact Brett Murphy today. To learn how we have helped our motorcycle crash clients, please go to this link.

Date: 8/14/14

In the first part of this article series, I described the reasons that a trial attorney needs to cross-examine an expert witness.

Against the expert witness defending his home territory, the trial lawyer has four main advantages.

1) The trial lawyer can choose not to ask any questions at all, or more likely, can choose not to ask certain questions. He can avoid certain battlefields. The task of preparing to cross-examine an expert witness is largely one of determining which questions NOT to ask.

2) The trial lawyer can choose to ask only questions which require either a “yes” or a “no” answer. He can take away the expert’s most potent weapon – the monologue.

3) The trial lawyer can learn the specific narrow aspect of the expert’s subject matter that is relevant to the specific issue being tried. He can learn that part of the territory on which the battle will be fought.

4) And finally, the trial lawyer can analyze and criticize the expert’s answers in the home territory of final argument, on his own turf, where the expert is speechless.

Effective use of these four advantages minimizes the expert’s strength, his expertise in the subject matter, and maximizes the trial lawyer’s strength, the ability to question narrowly then comment on the answer without reply.

Put it in perspective, right at the start. The average expert witness knows as much about his or her field as you know about law.

“That means a lot of different things. It means, for example, that the knowledge and ability of nearly any expert is uneven. It means that the typical doctor knows no more about hepatitis, pyloric stenosis or coronary arrhythmia than the average lawyer knows about promissory estoppels, renvoi, or the doctrine of worthier title. It means that a lawyer can learn enough about the flash point of waxes to cross-examine an electrical engineer who specified wax paper condensers in a color television set designed to operate at just 5 degrees lower than the burning point of wax. It also means that the witness – unless he has had previous courtroom experience – is going to be scared.” McElhaney, Trial Notebook, page 167. *

In the remaining parts of this article series, I will discuss:

  • The three conceptual categories of potential lines of questioning;
  • Final preparation for the cross-examination;
  • The Ten Commandments of cross-examination, plus four more.
  • An example cross-examination of a defense economist.

- Dean Brett

* McElhaney, James W., Trial Notebook, The American Bar Association, 1981

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