The deposition of Leslie King was not the last time we put the screws to somebody for this case. Another trio of depositions followed, along with being present to help with Mr. Arroyo’s deposition defense. But there was only so much to be done before we finally ran out of documents to uncover and people to question.
That point was the first week of November, and after we filed with the court saying we were done with discovery, we got our first major deadline: pretrial motions, and any hearings to argue them as needed. That deadline? The Monday after Thanksgiving. The date we’d be arguing those motions before the judge? The Monday, Tuesday, and maybe (but hopefully not) Wednesday before Christmas.
Today was December 7. The deadline for filing pretrial motions had already come and gone. In front of me sat both Julio and Fatima.
And they were here because it was decision time.
Back in March, nine months ago, I’d told the both of them that I would eventually decide who got to sit second seat at trial. I’d initially wanted to wait a tad longer, to give both of them a chance to argue against some of the defendants’ pretrial motions, and make my decision after seeing that. Unfortunately, a few outside factors had killed that plan before it ever got started.
Firstly… I wasn’t actually going to be free on the first day of arguing pretrial motions. Another case I was the lead attorney on had a full day of mediation that same Monday. Since that was for an NMR case in the Court of Federal Claims, and the various courts had a bad habit of not wanting to work with one another, no amount of requesting either date be moved had managed to solve this double-booking. This meant my hand was forced, and I had to delegate some responsibility to one of my junior attorneys. And under most circumstances, that decision would’ve been easy! I would’ve picked Fatima, as she had more experience as an attorney in more situations, and had actually written over half of the text we’d eventually filed for our pretrial motions!
Except, second: during the nine month period this case had lasted, both Julio and Fatima had been working other cases as well. And during the last week of October and first week of November, Fatima had gone to trial. As the most senior attorney on that trial team, she’d been in charge, and it would be remiss of me not to factor that into my decision.
The only problem was making sure both of them understood the choice… and, well. Didn’t react badly.
“... so suffice to say, I’m going to be very unavailable that day,” I said, not able to mask my chagrin. “I’d wanted to watch each of you during these motion arguments and make the decision after, but that’s not really going to be possible.”
“I mean, you could always just have us go halfsies on Monday and make your decision based on what you see Tuesday?” Julio ventured. He was shifting in his chair, fidgeting with the little cardboard sleeve on his coffee cup to hide his nervousness.
“That’s not a good idea,” Fatima said, sitting there with her legs crossed and hands sitting in her lap all prim and proper. There was an air of restrained eagerness to it all though, because while I couldn’t see the way she was bouncing her foot, she tapped against the front of my desk often enough to give away the motion. And she probably knew it too, given the way my ears kept flicking in that direction when her foot made contact with the desk. “We need to know who’s in charge before we go in, otherwise we’ll just be stepping on each others’ toes the entire time.”
My ears flattened slightly, showing my mild surprise at her answer. Ironic that she would grok the problem without actually understanding the problem.
“Julio.” He sat up straighter when I said his name. “You’ve been working on a few cases with Darryl, right? Just you and him?”
“Nothing too major,” Julio said. “Just a few car crashes and a pair of MedMal cases.”
“And how much would you say the work has been apportioned?” I began, letting my ears relax as I offered him a soft smile. Julio had gotten good at reading the less human aspects of my body language, but I doubted even my relaxation would help with what I was about to ask. “If you had to give me a percentage, how much of it would you say you’ve been doing versus Darryl?”
“Um…” Julio rubbed the back of his neck and looked away briefly.
I could tell that he was uncomfortable with the idea of trying to quantify how much work either of them had done on the case, and to be honest, that discomfort was a good sign! Divvying up responsibilities was key, but you always ran the risk of apportioning too little work even if it looked like a lot, or giving one person the crap jobs while the other got the choice bits.
“I think he’s been trying for a sixty-forty? With me doing the forty to keep things easier for me?”
“I see…” I jotted the answer down on a notepad, and turned to my other junior, my ears lowering as my good cheer faded in anticipation of where the conversation was about to go. “Fatima: your trial at the end of October. What went wrong?”
“That—” Fatima glanced at Julio, whose discomfort looked to have been amplified by an entire order of magnitude at my question. “Naomi, are you seriously asking that?”
“I am,” I said, “because I’ve lost trials too, with one of those losses being during this case, and every time I’ve done a postmortem to figure out what went wrong. So, Fatima.” I tapped my pen on the table. “What went wrong?”
Fatima looked away just like Julio did, but her expression was notably different. Whereas he had radiated discomfort and worry, Fatima had the beginnings of anger and indignance creasing her forehead and pulling down at the corners of her mouth. I tapped my pen on the table, then again, and again, counting out the seconds that Fatima didn’t answer. Tap. Tap. Tap.
Tap.
“Well, you don’t need to tell me.” I spoke, breaking the increasingly tense silence that surrounded Fatima’s inability to answer. “I already knew, anyway.”
“... but you weren’t there,” Fatima accused, finally saying something now that her anger had a target other than herself.
“I didn’t have to be.” I reached over to my phone, and tapped the button to take back the call I’d had on hold for the last fifteen minutes, all in preparation for this moment. “Sorry to keep you waiting, Amir. Now, what were you saying about the trial?”
“That the plaintiff’s lead attorney did not listen to her co-counsel,” said the man on the other end of the line. The voice belonged to Amir Al-Masri, in-house shark for Allstate. He was a longtime friend, sometimes-ally and sometimes-adversary, and one of the scariest trial lawyers I’d ever met.
He was also the attorney who’d cleaned Fatima’s clock in court just a month ago.
“It was obvious to me that she was not as familiar with all aspects of the case as the other lawyers on her team. But rather than delegate, she instead tried to handle the entire trial herself. Had she allowed one of the others to handle cross-examining my witnesses in particular, she might very well have convinced the jury that my case looked weaker than it was.”
“I see,” I said. “And do you have any advice for Ms. Osmani?”
“She is like me, and so I will give the same advice I needed to hear when I was at her level: show more trust in the rest of your team,” Amir said. “Even now, I do not try to handle complicated trials solo. If the jury is not listening to me, somebody else must speak to them. If a witness is being hostile or defensive, I am not the one to de-escalate that situation. Embrace your strengths, but know your weaknesses, and surround yourself with helping hands.”
“Wonderful. Thank you again for your help, Amir,” I said. “Oh! Before I forget, we still on for Saturday?”
“Of course! But I must let you know: my daughter is also in town, and has brought the grandchildren.”
“Message received loud and clear; I’ll bake cookies and get the fox out of his den,” I told him. “See you then!”
With that, I pressed the speakerphone button to end the call, and looked back at my two junior attorneys. Julio looked rather nonplussed, and I figured he’d had similar conversations with former adversaries often enough during his years as a public defender.
Fatima, on the other hand, just looked utterly taken aback. She was somewhere between gobsmacked, angry, shamefaced, and failing to put together a complete sentence through her anger.
“Amir has been doing this since before either of you were in elementary school,” I told them both. “He has forgotten more about how to be a trial attorney than most of us will ever know. Suffice to say, whenever he told me where I had room to improve? I listened closely.” I turned towards Fatima. “Depending on what the issue he spotted was, I was still going to have you sit second seat. But I’m not going to be there for at least the first day of arguing pretrial motions, and for a case this big? I cannot in good conscience leave you in charge if your main issue is not being a team player.”
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Fatima didn’t answer.
She instead pushed her chair away from my desk, stood, and left my office, slamming the door shut on her way out for good measure.
“Damn it,” I sighed, turning towards Julio. “Suffice to say, this was not how I wanted it to go down. Congratulations, Julio. You’ll be sitting second seat, which means you’re in charge when I’m not there. I wish it hadn’t been quite so messy, but, well.” I sighed, ears dipping low in disappointment. “People don’t often want to hear what they need to.”
“Yeah… yeah, I get that,” he said, standing up from his seat. “Anyway, I, uh. I’m gonna go get a bit more time on those motions, gotta figure out our approach.”
“If I may make a suggestion?” I offered, and Julio paused. “Have Fatima defend our motions in limine. She wrote most of those, and I do need to both give her credit where due and let her show her stuff.”
“And the rest?”
“Just trust your best judgment,” I told him. “And Julio?”
“Yeah?” Julio asked, pausing with a hand on the door handle.
“Congratulations on your first civil trial second seat,” I told him. “You earned it.”
“... thanks, Naomi.” Julio favored me with a smile and a salute with his coffee cup. “That means a lot.”
Then he left my office, leaving me alone again. I sighed, gave myself a brief moment to relax, then turned back to my computer and opened up a few more documents that needed a once-over. Alas, there was no rest for the weary. Thank God for having Christmas and New Years before trial. My social life tended to die a miserable death for the duration of a trial, so getting a nice respite beforehand was a blessing, especially with what I had planned.
Spa week with the girls would do me some good, and my God, the things they did for my fur…
The holidays came and went without much fanfare. Gorou and I spent Christmas at the Japanese embassy, where they lavished him with attention and a few gifts, and once he was all set until New Year’s Eve, I grabbed my besties Kimi and Kei for our spa week. Absolute heaven, oh my God. My muscles were loose, my skin was smooth, and my hair and fur were soft and shiny. Gorou gave me some shit for letting anyone other than him work on my fur, but even he admitted that the results were utterly spectacular.
Today was Tuesday, January 5, 2021. Inauguration Day was two weeks away (Dem incumbent won re-election, nothing special), and even though Judge Friedman was clearly aiming for having the trial done before then, not even he wanted to hold court on the Monday after New Year’s. Officially, though, he said that we would be better served by waiting just one more day to ensure our jury turnout was sufficient for a case of this magnitude.
So it was that my team and I used yesterday as our last “figure shit out and be ready” session, and now we sat in the courtroom, waiting for things to begin. The gallery of the court, normally filled by onlookers or people awaiting their own cases being called, was filled almost to the brim with potential jurors. And because I was not above taking any advantage I could get my hands on, I was currently standing at counsel’s table so that all of them could see me.
The courtroom we’d be arguing in was a bit on the smaller side. The gallery could only hold maybe forty people, and the acoustics meant that if the room was full and you weren’t in the well of the court? Well, odds were good that most people wouldn’t hear a word you said.
But, well. I wasn’t most people.
My ears scanned side to side, panning across the room so I could take in as many of the whispers and muttered conversations as I could. As expected, I was an object of serious curiosity. After all, how often did you see somebody with real animal ears and a tail? And how likely were you to find that person in a courtroom?
The first time I heard other attorneys complaining about jury selection had been a bit of a rude awakening for me, you see. Most lawyers had a tough time finding jurors who actually gave a damn, or who saw jury duty as something that they should be doing, as opposed to just being something that they wanted to get out of doing. But I hadn’t experienced that, not even once. I had a very different problem than most, and that problem was identifying which potential jurors just saw me as a zoo animal, because those were the ones who would watch my every move while simultaneously ignoring every single word I said.
To that end, I’d acquired a temporary fourth member of the legal team. You see, we’d already gone and hired one of our new associate attorneys for next year, fresh out of law school. But that attorney-to-be was still a cute, adorable little third-year law student, working part-time at the firm both for course credit (called an “externship”) and for some pay.
So I’d gone to Alice, told her I was borrowing the 3L, and brought Casey Allen, the cute little student attorney, to court for jury selection.
“Your task,” I’d told him on the car ride over, “is to position yourself in the gallery so you have both me and the potential jurors in your line of sight. I want you checking to see if they’re staring at me, and if they are, where they’re staring. Any juror who’s staring at my boobs, gone. Any juror who’s staring at my tail, gone. Any juror staring at my ears… well, that one’s a bit trickier. For that one, I need you to pay attention to their body language. Do they look like they’re actually trying to read what I’m saying with my ears? Or are they just staring because it’s something to watch?”
Casey was currently sitting in the back-right corner of the gallery, a loose black sweater leaving him so completely nondescript that the potential jurors filing into the courtroom all ignored him. And while court police did ask what Casey was doing back there, a note I’d prepped beforehand was enough to have the officer leave him alone.
Eventually, the gallery was filled. Three minutes of whispers and murmurs later, the bailiff took position in front of the bench, and yelled.
“All rise!”
I was already standing, but everybody else joined me, some more swiftly than others.
“Now presenting the Honorable Marcus Leroy Friedman. All persons having business before the Judge and this court are advised to give their attention, for the court is now in session!”
“Oh don’t bother waiting on my account,” Judge Friedman said, drawing chuckles from the gallery. “Go on, sit, sit!”
People were quick to take the invitation, and with the shuffling of feet on carpet, butts found chairs and eyes went to the bench.
“As the good bailiff said by way of introduction, my name is Marcus Leroy Friedman, and I am one of the judges here at DC Superior Court. You have been summoned here as potential jurors in the case of Destiny Irene Banks v. William C. Smith & Company, et al., which is a type of civil case known as a wrongful death lawsuit. This case came about when an apartment building burned down during the afternoon on December 27, 2019, and two people died in this fire.”
Any good cheer in the courtroom fled without a whisper. Judge Friedman knew exactly how to control his courtroom, and it was a sight to behold.
“Now, in order to ensure the selection of a properly fair and impartial jury, the law provides that the court and the attorneys for both sides may ask questions of all prospective jurors, in a process that we call ‘voir-dire’. When answering these questions, you shall be under oath to tell the truth, the whole truth, and nothing but the truth, under penalty of perjury. We will be comparing your answers to your jury questionnaires, and if we think you changed an answer, we won’t hesitate to confirm.
“Now, after the questioning is complete, each side will be allowed to excuse three of you. Additionally, at any time during the selection process, I may choose to excuse you for what is called ‘cause’. This means that, based upon the answers you give and the facts of this particular case, I personally think that you would find it difficult to remain impartial. Rest assured that there is no shame in being excused; it just means that this case wasn’t yours to hear. I also ask that you not take any offense at any questions asked of you, no matter the subject matter. While we respect all of your rights to privacy, there are things the court must know about: you as people, the lives you’ve led, the opinions you hold, and so on. Any or all of these can affect your ability to serve on this jury.”
There had started to be some mumbling from the gallery as the judge spoke, but by the time he finished, it had all calmed back down.
”Firstly: if any of you are personally acquainted with the plaintiff, Mrs. Banks, please raise your hand.”
No hands went up.
”In that case, I will move on to the next set of questions.” Judge Friedman flipped open his planner and retrieved a sheet of paper from the inside cover. “Now, based on the facts of this case, both the plaintiff and the defendants agreed on a few blanket questions that they want to ask as a group before moving to one-on-one questioning for the rest. These questions identify the most likely sources of bias, which we want to weed out before going further. Does anybody have questions about this process, or are we ready to proceed?”
One person in the gallery raised her hand, and Judge Friedman motioned for her to speak. She stood up first, then cleared her throat and asked.
”What if we’re not sure about how to answer the question?”
“The questions are all going to be yes-or-no,” the judge clarified. “If you aren’t sure whether you’re a yes or a no, just raise your hand for yes regardless. In this circumstance, we would rather have a false positive than a false negative. Did that answer your question?”
“Y-yes, sir,” she said. Then she sat down, and the judge cleared his throat.
“Very well,” he said. “Let us begin. Question one: please raise your hand if you are currently living in rent-assisted or government-subsidized housing, other than military housing.”
Three people raised their hands. Unsurprisingly, none of the three were white.
“Lady and gentlemen, you are excused from the jury,” Judge Friedman said. “Thank you for lending your time to the court this morning, brief as it may have been.”
The three of them wasted no time leaving, and the gallery was down to 36 potential jurors.
“Moving on,” the judge continued. “Please raise your hand if at any point you collected rent as a part of your income.” Two more hands went up, and the judge promptly excused them as well. “Please raise your hand if you have ever sued your landlord, past or present, for any reason except for not returning your security deposit.”
There was some chuckling in the gallery at that, and another four hands went up.
“Thank you for your candor; you are excused.” Judge Friedman waited for them to exit the courtroom, and then continued. “Please raise your hand if you have ever lost your home to a fire, flood, earthquake, or other similar event.”
This time, no hands went up.
“Last but not least, please raise your hand if you are a member of law enforcement or emergency services, such as fire rescue or emergency medicine.”
Six hands went up. The judge promptly dismissed them, leaving us with a grand total of twenty-four potential jurors to question.
“Well,” the judge began. “To be honest, this is more than I anticipated.”
There were a few good-natured chuckles, and Judge Friedman let them peter out before motioning to the bailiff. He walked up the aisle towards the back of the courtroom, and took position at the doors.
“For the rest of jury selection, we will be calling you in one by one. Please follow the bailiff to the waiting room, and make sure you have your numbers ready.”
The jurors stood in the disorganized fashion you’d expect from people jockeying for position in a small space, and filed out of the courtroom in a noisy two minutes. This left poor Casey the 3L as the only person left in the gallery, and that drew the judge’s attention.
“Young man, the rest of the jury has already left,” Judge Friedman said.
“Actually, your Honor, Mr. Allen is with us,” I said, standing as I spoke. “He is a student attorney with our firm, and I wanted to make sure he got to experience the courtroom before graduating. We’ll be bringing him up in front of the bar of the court once jury selection is done, but I wanted him to see how the selection process looks from the outside before letting him see this side of things.”
“And do you have the paperwork for that?”
“Yes, your Honor. Permission to approach?”
“Granted.”
I pulled a few sheets of paper from my trial binder and walked up to the bench, handing them to the judge with a smile.
“… everything seems to be in order,” he said, then turned to where Casey sat in the back of the courtroom. “Quite the opportunity you have here, young man. Make the best of it, you hear?”
“Y-yes, sir!” Casey yelped out, standing rigid in the back of the courtroom.
“Wonderful.” Judge Friedman put the papers away somewhere behind the desk, and waved me off back to counsel’s table. “Alright, everybody. Bailiff Mike has a list of which potential jurors are left, so I’ll give you thirty minutes until I start calling them in. Sound good?”
The gathered attorneys at the defense table looked to one another, mumbled something between them, then nodded. I nodded to the judge as well, then looked to the back of the courtroom and gestured for Casey to join us.
He gave this shocked little look, before pointing at himself in a sort of “what, me?” expression.
I rolled my eyes, and waved him up, more forcefully this time.
The 3L’s eyes lit up like a kid in a candy store. His drive and motivation were practically infectious, and soon, even our client herself joined in on going through the jury questionnaires.
We only had half an hour for last minute prep, after all. Best make it count.
in limine: These are generally pre-trial motions that control what can and can't be entered into evidence, brought up during trial, etcetera. in limine = at the threshold, so these are motions made at the threshold of trial.
in limine is generally used to prevent evidence from being presented at trial, to prevent a certain line of questioning when eliciting testimony from witnesses, etcetera. These can be constructively waived during a trial, though, in what is called "opening the door": if the judge approves a motion to limit the other side's ability to talk about XYZ, and you then ask question which touches on the thing that you prohibited the other side from discussing?... well, they now get to discuss the thing.
Depp v. Heard trial. As I understand it, Amber Heard's team was granted a motion in limine, preventing Depp's team from talking about Kate Moss, calling her to testify, or using anything about her as a point of comparison. Then Amber went up on the stand and mentioned Kate Moss, which is accompanied by clips of Depp's lawyers doing a very literal "POG!" face at counsel's table, because they knew what this meant: Amber had opened the door to discussion of Kate Moss.
