Reflecting on the trial and how they feel

Karen and Mo discuss the trial and the challenges of taking on a case this old. 

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Hosted by Karen Koehler and Mo Hamoudi, trial lawyers at Stritmatter Law, a nationally recognized plaintiff's personal injury and civil rights law firm based in Washington State.

Featuring Mike Todd, producer, audio engineer, and the Disembodied Voice of Wisdom & Reason.

Produced by Mike Todd and Kassie Slugić.

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Karen Koehler
https://karenkoehler.com
https://www.instagram.com/k3thevelvethammer/
https://www.linkedin.com/in/karen-koehler-thevelvethammer/

Mo Hamoudi
https://www.instagram.com/mo.hamoudi/
https://www.linkedin.com/in/mo-hamoudi-77a38733/

Stritmatter Law
https://www.stritmatter.com

Transcript

Mo Hamoudi 0:00

So I uh today I think it's important to talk about you know the aspects of the trial that

A 50 Year Old Trial

Mo Hamoudi 0:06

we just did. Oldest uh civil trial I think that was tried, based on what I've been able to assess against the state of Washington.

unknown 0:15

Uh-huh.

Mo Hamoudi 0:15

How we had to pivot in opening. Um because what we learned is is that we had ideas going into the case. Um and just to sort of highlight, this is a case involving two men who were placed in a home of a uh sex offender and were subjected to abuse.

Karen Koehler 0:35

When they were children.

Mo Hamoudi 0:36

When they were children. And the case was you know, what happened to them happened to them in the 70s, and now we're back in 2026, 40 years for 50 years forward, going back in time to try this. So we had an idea what we wanted to do and how to try this case. And when we walked into Vaughir, what happened?

Karen Koehler 0:54

Well, let's just say that we weren't self-deluded. We had done focus groups.

Voir Dire Reveals The Real Obstacle

Karen Koehler 1:00

Um, but when you work with a case for a really long time, you tend to f forget forget how it lands on other people for the first time. Because if you're so um you're used to it. Fifty years ago, well, that's old, but you know, yeah, it was fifty years ago. You just just it just kind of rolls off the tongue. Yeah. Uh but and even when we did the focus groups, that was mentioned, but that wasn't the main focus of the focus group.

Mo Hamoudi 1:29

No.

Karen Koehler 1:29

But this focus group, which was the actual jury. The actual jury was and and and not just one jury, like she had pulled 200 jurors, and so we were doing 20 of them or 25 at a time, and we'd done three rounds of them, so 75 jurors. They all were fixated on how old the case was.

Mo Hamoudi 1:52

That was their biggest problem with the case.

Karen Koehler 1:54

The young people said what?

Mo Hamoudi 1:55

I don't even know what the hell was going on in the 70s. I wasn't even born.

Karen Koehler 1:58

And the old people said what?

Mo Hamoudi 1:59

Why did it take so long?

Karen Koehler 2:01

And they also said, I'm worried that I'm gonna get confused between the standards of now and then the standards of them then, and I don't want to apply the standards of now to then or then or now, and like how would I it was a different era?

Mo Hamoudi 2:13

Yeah. Things were different. Yeah. We weren't the same.

Karen Koehler 2:17

And then unlike many cases where you then do opening the next morning, yeah. The judge uh took a pause, so we had all weekend to to reconfigure.

Mo Hamoudi 2:29

Which was nice, I thought, because I don't think it landed on us until that last panel, and then we walked out and we're like, oh boy.

Karen Koehler 2:39

No, it was landing on me, trust me. I it was landing on me every single time. It was like, okay, this is is a growing concern.

Mo Hamoudi 2:48

And and so what the panel that I did, I was asking them questions about do you ever go back in time um in your own lives? And and what did you do and why? And the feedback I got from the jury was I want to go learn about my family lineage, I want to go uh understand, you know, a property dispute. And I said, Well, what do you do and how did you do it? And I and they were talking about going and digging up old documents and old pictures and old artifacts and almost like an archaeological dig. And I feel like that kind of set the stage where you were like, We need some stuff. Well, tell me about that transition.

Karen Koehler 3:34

Okay, well, before you got the call from me and knew what I was doing, I didn't tell

Building A 1970s World With Props

Karen Koehler 3:40

you what I was gonna do in opening, right? I never do.

Mo Hamoudi 3:43

No, no.

Karen Koehler 3:44

I'm super internal. And I have and I'm thinking about like, how's this gonna happen?

Mo Hamoudi 3:49

Yeah.

Karen Koehler 3:49

And I and I kind of think about it, but I don't really articulate it or I don't really if you were to talk to me about it, I talked to you about it, but I wouldn't probably accept whatever you said. Because I have to go through my own way. Yeah, that's right. And the thing about that is here's why. It's gotta feel like it's me.

Mo Hamoudi 4:12

Yeah.

Karen Koehler 4:12

It's gotta be part of me, and then I'm good with it. If if it's something that it's too orchestrated, I'm not gonna want to do that.

Mo Hamoudi 4:21

But my instincts were right. I think I said to you on the phone, I was like, you're gonna go, you're gonna do something, you're gonna dress up.

Karen Koehler 4:29

Well, you knew I was gonna dress up because I told you I was gonna do something, but what it did was going through that process, it didn't take me long to figure it out.

Mo Hamoudi 4:39

Okay.

Karen Koehler 4:39

So it didn't take me long to figure out. I'm on the phone and I said, I gotta go to a uh, I'm gonna go to some event of I think Liam was playing a sporting event. Yeah. And on my way, I'm gonna stop off at Value Village. Oh, it was his, it was his uh spring recital. I'm gonna stop at Value Village. I then stopped off at Value Village and I started looking for stuff. I'd already asked Kristen for a phone. She said she had a rotary phone. So I had one rotary phone and I'd had that for about a week.

Mo Hamoudi 5:10

Yeah.

Karen Koehler 5:10

So I so I knew I was gonna go back in time, and I had already, this is before Vordeer, so I'd already kind of been thinking about what that would look like. But now I'm really focused. So I go into Value Village looking for an outfit. I sent it to like five or six people, including my kids, to you, like which one should I do? Corduroy or Paisley? And the answer was do the Paisley. Yeah. So I got the Paisley dress. They didn't have really good much other good stuff. I got some earrings that went with it. I knew some other stuff I would had that I would do. Um, but when I was sharing that, the next time I shared that with you, you were doing something really boring, and then you got really excited and you said, Oh, I I basically I'm needed, I have a role, and you just went off over the weekend.

Mo Hamoudi 5:57

And what I mean, what I did was I was like, we need more stuff. We need a 70s typewriter, we need uh old pencil sharpener.

Karen Koehler 6:04

I said we needed the typewriter and the pencil sharpener.

Mo Hamoudi 6:07

Oh, you did? Yes. Are you sure?

Karen Koehler 6:09

Yes, because Isaac had been trying to get some stuff and it wasn't very good. It was a two-hole puncher, there was a staple polier that was too modern, there was some other things that they've been collecting. Um so I said, I still need you said, What do you need? What do you need? I said, Well, I've been I went and I looked for typewriter, they didn't have any typewriter that was good enough, it was too modern. And you said, Okay, I'm gonna go on a search for the typewriter.

Mo Hamoudi 6:35

And so I sent out actually on the WSAJ listserv, I need a 70s typewriter. And people were like, What the hell is going on?

Karen Koehler 6:42

Well, someone offered you one, but they were from Spokane.

Mo Hamoudi 6:45

Yeah, and they I they couldn't get in. And then um and then uh Kathleen Mason wrote and was like, I think we I think I have one, I gotta go look for it. And someone else wrote, and then and then I called my buddy Jack Kindred, and he was like, My wife Kathleen Keenan has one. Yeah, so I found a typewriter, um, and then I found a couple of other artifacts, the pencil sharpener, and also some magazines from the early 70s, Life magazine.

Karen Koehler 7:16

Richard Nixon.

Mo Hamoudi 7:17

Yeah, it was Nixon and the Munich Games. And so we're off. We got the stuff we need. I came to the office and I put everything here.

Karen Koehler 7:28

So let me let me just pause here. So we're getting ready for opening, opening statement. We

Becoming The Caseworker In Opening

Karen Koehler 7:34

being, you know, it's a team effort, but I'm the one that's doing the actual presentation. And you would think that we would be heavily, you know, like we're looking at documents and crafting these magnificent outlines and you know, super stressed and not talking. No, we're we're looking at all our little toys.

unknown 7:52

I know.

Karen Koehler 7:53

We're like so proud of our collection, and that's what we're focused on more than anything is our little collection of stuff. This is gonna be so cool. And oh, the big thing is Mike had or or Isaac had found, you know, I'd asked for one of the wooden chairs, but you had gone. Oh, right. Oh, I found a really good chair. I said, How much is it? You said five bucks.

Mo Hamoudi 8:14

It was not five bucks. It was over a hundred bucks. But it was an old office chair. It was old wooden.

Karen Koehler 8:19

It's called the captain's chair.

Mo Hamoudi 8:21

It was really, really cool. And we brought the captain's chair in there, and then you actually took the Paisley dress and put it on. Well, let me tell you so how this works. That was hilarious.

Karen Koehler 8:34

So I have to feel I have to feel like this is me when I'm doing this. Okay. So I transform all the time during openings. Primarily openings is when I'm gonna do it on a case. And I knew I was gonna do it. So I was gonna be the DSHS interviewing caseworker who was gonna be licensing this guy. And I could not do that.

Mo Hamoudi 9:02

Oh my goodness. Mike brought it. Mike brought the captain's chair. Look at this thing. Yeah, I think it's fantastic.

Karen Koehler 9:09

It's it is fantastic. He he wants us to figure out what to do with it because it's taking up valuable real estate.

Mo Hamoudi 9:14

You want to get rid of it?

Karen Koehler 9:15

No, he doesn't want to get rid of it.

Mo Hamoudi 9:17

Okay.

Karen Koehler 9:17

I mean, and now it has a lot of symbolic, you know, symbolism to that chair. We can't get rid of it.

Mo Hamoudi 9:21

We can't get rid of it.

Karen Koehler 9:23

So I I I'm gonna transform.

Mo Hamoudi 9:25

Yeah.

Karen Koehler 9:26

And so I won't, I'm not gonna even say, good morning, uh, members of the jury and counsel and you're on. That would be to crack my crack my aura and demeanor. I'm gonna just launch.

Mo Hamoudi 9:39

You did.

Karen Koehler 9:40

I had a little thing that said Mrs. Smith, DSHS, and I'm talking to the jurors and I'm telling them generally something, and then I just I I took off my jacket and I put the dress over my outfit, and then I got the little reader glasses and put the later little reader glasses on, and then I went to my table and I started organizing things, and I was just in the character of who I was, and I gave opening through the lens of the DSHS person and what they were supposed to be doing. Hi, so-and-so. You're I'm checking references, I'm writing down notes, I'm doing everything that you don't need special equipment to do. All you needed was a rotary phone, a pencil, a paper, and a typewriter. And that's what I did. And at the end of that presentation, I said, and if I had done all that, then we wouldn't have been here today. And then we go and launch into what went wrong. What went wrong. Yeah. So and and and so there's two issues, right? One is, well, there's three issues. One is if you're gonna plan everything ahead and stick to your plan, then you're gonna get valuable information from a jury.

Mo Hamoudi 10:55

Yeah.

Karen Koehler 10:56

Not a focus group jury, the jury, and you're not gonna be able to incorporate it. It's gonna be a missed opportunity for you, the lawyer. So that, uncomfortable as it is, that ability to listen to the jury, see what they're concerned about, and address it in opening, that was point to us. And it was a huge team effort. Everybody was it was a big game. I mean, everybody was so interested in what's this world gonna look like? You know, we're what what is this thing, this tableau that is gonna be setting? What is it gonna look like? So that's number one. Number two is if you're gonna do that, you need to get into it. And when you get into it, that means you become it. And to become it, that means you can't be worried what you look like. Like I couldn't be worried about, yeah, I'm gonna take off my jacket and put this dress on. I hope it fits correctly, and it might miss up my hair. So maybe I should make sure that I comb my hair more. You are literally in that role. You are not self-conscious, and so that's that's kind of number two. That's my thing. I wasn't, I did not shake, I did not quiver. Sometimes I'll get like a little upset tummy before I'm gonna do something big like that. I had nothing. There was like no because it was just so organically real to me. Yeah. It was so I don't want to say it was easy, but it was just fluid. It just boom. I it went, and that was completely unrehearsed. I had never practiced even her voice or her mannerisms, but she was she was the DSHS lady. She was not me.

Mo Hamoudi 12:33

Yeah.

Karen Koehler 12:34

She was not. And what did they say?

Mo Hamoudi 12:37

They said that afterwards. Were you were you an actor in my previous life? Yeah, that's what they asked.

Karen Koehler 12:42

Um, and then the third thing is you're doing this for the purpose of what you set out, which is to convince the skeptics that this is a job that you can do. Putting yourself back in time 50 years, this is a job that you can do.

Mo Hamoudi 13:02

Yeah, I mean, to kind of speak to that is that, you know, when you're when you're first of all, the we stayed on theme, which was we had a process-oriented theme. We were talking about the process of what went wrong that both these boys were placed in a home. And so for the jury, a lot of the times what practitioners do is that they want the jury to be, they try to convince them from the beginning to be result-oriented. I want you to, my position is better. I want you, I win. And even in Vaughn, they're trying to find a result-oriented jury. But this was trying to find not just to try to find a process-oriented jury, but to provide them the means by which to get to the results that you wanted. So when you put up there and you're you're dressing up, you're really you're appealing to the visual juror, the juror who thinks visually.

Karen Koehler 13:55

And like going back by the way, were were you nervous when I was doing it?

Mo Hamoudi 13:59

No, not at all.

Karen Koehler 14:00

Were you did do you think it was awkward?

Mo Hamoudi 14:01

No, not at all.

Karen Koehler 14:03

I mean, I was putting clothes on in the middle of the year.

Mo Hamoudi 14:05

Yeah, I didn't think it was awkward.

Karen Koehler 14:06

This is the thing. I didn't feel awkward.

Mo Hamoudi 14:08

I didn't I didn't think it was awkward. To me, it was a means, it was a tool to put the jury in a space that we're asking them to do. We're saying you gotta go back into time, and here are some tools. This is how you're gonna do it. You have your visual cues, you have we're gonna set it up for you, and then you gotta go back in time and do the archaeological dig. And so that's what we did, I thought, very effectively.

Karen Koehler 14:31

So let me ask Mike. So you've been in juries, and I know you weren't on this jury,

A Juror Explains What Sticks

Karen Koehler 14:37

but you're seeing this unfold, right? You you've had your vor deer, and your very next encounter is with a lawyer who's taking her jacket off, putting on this outfit, and sitting down and becoming a DSHS worker. So what as a jury is going through the mind? And do you think that I mean, why could that be helpful? What do you wish lawyers would know when they're doing opening statement? You know, uh give us that perspective of the person who would be sitting on the jury and looking at something like this.

Mike Todd 15:15

So For me, both opening and closing were very important on setting the tone of how I approached I how I looked at the facts, I guess. Because we didn't, you know, I don't know how many how much they got, but once you get in there, you're looking at this stuff, but opening and closing are kind of like the outlines that you go off of, or at least that was for me. You know, and it's not necessarily saying I believe one side or the other. Yeah, I'm using what they said and then looking at what the evidence that they presented was and going, how does this match up? You know, because I know you guys are trying to work for your clients. I know defense is trying to work for their clients. That's their jobs. But that doesn't mean that I have to that they're wrong, I guess. You know, so like I think somebody sitting on a jury is trying to find right and wrong kind of, and sometimes uh people will automatically gravitate towards the defense if they think, okay, well, that sounds true, so that must be, you know, that must be that must be it. We must be right. Um I I think that that can easily be the way that it goes. But if you come out with something like that that you did and that you've done in other trials, that's gonna be one of the first things I think about when I go into the jury room.

Karen Koehler 16:54

God, you're not gonna forget it.

Mike Todd 16:55

You're gonna remember, hey, that's what it used to be like. You know, and if it was somebody my age, they knew that's what it used to be like because we lived through it. Yeah, but people that are younger right now, yeah, they don't. I mean, anybody that's been around that that was born after cell phones were available, their lives are entirely different than what it was like back when this trial you know, when the when the incident happened. Yeah. So I I think it's it's it's a good way to put people into place, a good way to start that outline that they can then work off of. And it can work to your advantage, may work to your disadvantage, I don't know, but I think that it's a strong tool for sure.

Karen Koehler 17:41

I remember maybe even now it's probably 20, oh, it's more than 20 years ago. I tried a case. Yeah, it's definitely more than 20, maybe 25 years ago, I tried a case where in closing I was going through all my arguments and I used a very popular commercial, um, which was and it had the lady yelling, Where's the beef?

Mike Todd 18:02

Yeah, totally.

Karen Koehler 18:03

And like two or two of the jurors back then, only two, that's a very small, did not know what that reference was about. It was a Wendy's commercial. You know, that's right, where's the beef? Yeah, nope, they did not know. And that's when I think you do gotta be careful when you use examples that you're gonna encompass the whole jury. Yep. And in this case, I just assumed that it was gonna be it needed to be helpful for all the jurors. Um so that is in a in an evolving society, that's important, especially for trialers who tend to recycle a lot of stuff.

Mike Todd 18:39

Yeah, popular cult popular cultural references can be tough because stuff for you and I is a lot different than Mo or some of the younger attorneys here would have totally different things.

Karen Koehler 18:50

Totally. Yeah. So so uh but I I want to I I also want to tell just, you know, a lot of younger people listen to this and they're they're trying to imagine. Now, you would see something like this on TV, right? Because super dramatic. Um, but I don't feel dramatic when I'm doing it. I don't feel like I'm being super dramatic. I'm being into the right.

Mike Todd 19:14

You're being dramatic, Aaron.

Karen Koehler 19:15

But I'm being elevated. For me, it just feels like I'm being enhanced.

Mike Todd 19:19

Yeah, but that's what dramatic is.

Karen Koehler 19:20

Okay, fine. I'm being dramatic, but I have not had someone say, I really didn't not like that you did that. That really bugged me that you did that. I was really uncomfortable that you did that. I have not had, and I've been doing this for these these, you know, acting out things for a very long time, because the motive isn't to confuse them or per even honestly, in some, you know, to overtly persuade them. It's to help them understand our position. That's always the primary reason is what can I do to help them understand? And because of that, I think that's why there is not pushback.

Mike Todd 20:07

Except from the defense attorneys, the defense attorneys.

Karen Koehler 20:10

And you know, in this case, what was funny is the defense attorney tried to co-opt it. Which was which was I was like, whoa, you don't want to conduct you don't want to co-opt that. Because every time you co-opt it, you're just reinforcing the imagery of how effective I was in translating that, because I was Mrs. Diaz. Yep. So in trying to show the example of what it was like back then, he used me, which was a which is which was very not well thought out to to try to just say, well, you know, Ms. Culler did this, but in fact, you know how do you you know that that did not help him at all.

Mike Todd 20:52

Do not which is all you do. I mean, that's the same deal when you did it with ducks. Like you're just kind of presenting a little preface to the trial of like, here, here, let's let us get into the time that this happened.

Karen Koehler 21:05

Yeah.

Mike Todd 21:05

Let us get into We are all on the duck together. Yeah, here we are, about to take the ride. Yeah. You know, and and that's exactly what it is every time, no matter what. It's like here we are on the trial, we're going for a ride, yeah, here's where we're starting. I'd like you to know where we are. Boom. Yeah. There you go.

Karen Koehler 21:22

That that's that's the formula. But yeah, he he kept raising it and he did it like four or five times

Don’t Copy The Gimmick, Copy The Purpose

Karen Koehler 21:28

throughout the whole thing. I was just going, like, oh, this is so you shouldn't do that. So that is another tip for new lawyers. Um, beware of co-opting the other person's method unless it was really so poorly done that there was no doubt that nobody would would be positively triggered by that. So don't don't do that. It also shows that you are concerned about it. So John Henry Brown, he kept, he kept wanting to personally attack me because that what they were doing by using me as an example was personally mocking me. They were they were the defense was mocking the fact that I would dare to do something like that. And even though they didn't say they were not, they didn't sound disrespectful, but there's no other reason to co-opt your counsel other than to mock them. Well, John Henry Brown did mock, try to mock me. Um, and what happens there is, and it happens in both cases, when you do that, you take yourself out of the game. You are now not trying to prove your case, you're trying to get at the other defense or the other plane of counsel, or whoever that that other counsel has gotten under your skin. If we get under any counsel's skin, we automatically know it's gonna be a good day. Because the juries can tell.

Mo Hamoudi 22:44

Yeah, yeah. I I would just say that her approach, what she did, isn't just not for everybody.

Karen Koehler 22:50

No.

Mo Hamoudi 22:50

You know, it just isn't. You gotta find your own way of putting on your opening. And um the purpose of an opening is to provide the jury with a roadmap, like Mike said, about this is where we're gonna go, this is what you should expect to hear. It's a series of promises about what they'll learn. And if you overextend yourself, or if you try to be too over the top right out of the beginning, you start to lose jurors because they're they haven't heard anything. So, you know, I think that what was helpful with the way that you did it is you weren't over-promising anything. You were just saying this is another way in which you can kind of understand what happened back then. And I'm just presenting it to you in a different form. Um, the jurors did not get what you were doing when you first did it because they hadn't heard anything. It only came to light, I think, based on the couple of jurors I spoke to, was when the experts testified, because the experts were from the 70s, and they started to kind of make the connection.

Karen Koehler 23:54

They look just like me.

Mo Hamoudi 23:56

They looked y like you. And then and then so they're like, oh, now I get it. And then it sort of kind of fell into place.

Karen Koehler 24:02

Well, they kind of got it, but they get it. That you know, you you you're at first you're like, What is she doing? That's really different. And then they just they're gonna suspend disbelief and just watch it. Yeah. We like drama in in our human existence. And then they're waiting to see how that's gonna get tied in. And yeah, it gets a tie it got really well tied in through the experts.

Mo Hamoudi 24:20

That was good work. Yeah. Good verdict.