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A girl is dead. And the civil trial against Jane Wagner, the driver who hit her, has come down to this: Was Wagner a lawyer or a client at the moment her car struck 15-year-old Naeun Yoon? Next week, a Loudoun County jury will be asked to answer that question. And if the jurors find that Wagner was acting as a lawyer — speaking to a client on her cell phone — they’ll have to decide whether her law firm shares the blame. Wagner and her former firm, Palo Alto, Calif.-based Cooley Godward, face the prospect of sharing liability for the teen’s death and for the $25 million Naeun’s father, Young Ki Yoon, has demanded in compensation. The courtroom drama is likely to hold a number of surprises, since Judge Bruce McCahill has deferred ruling on a number of key evidentiary issues until they arise at trial. The trial also will include a parade of local lawyers appearing as witnesses. Whether Wagner is liable for Naeun’s death is the first question jurors must answer. Whether Wagner caused Naeun’s death because she was talking on a cell phone while driving is another. And the final element is whether she was performing work for Cooley Godward while talking on the phone — a point that, if proved, could let the plaintiffs reach the deep pockets of the law firm. Cooley Godward denies that Wagner — who was an associate in the Reston, Va., office — was doing firm work at the time of the accident. In a deposition, Wagner declined to address whether she was talking on the phone or doing work for Cooley Godward. Yoon’s attorneys must travel a long road in establishing Wagner’s liability before they even reach the issue of Cooley. As in most wrongful death cases, the attorneys will set the scene and reconstruct the March 8, 2000, accident that occurred on Route 7 in Fairfax County in intricate detail. They will then get to the tricky part: proving that Wagner caused Naeun’s death because she was grossly negligent by operating her cell phone while driving. Wagner, however, is unlikely to be able to pay a large judgment, should the jury find her liable. Cooley Godward could pay, though. To win the award as well as the case, Yoon’s attorneys, Peter Grenier and associate Anne Noble of D.C.’s Bode & Grenier, must connect the accident to the law firm. Wagner was fired after the accident and pleaded guilty to the felony crime of failing to stop at the scene of an accident. She served one year in jail, with four more years suspended, and was disbarred. She now lives in Illinois. If the jury finds Wagner solely responsible, Cooley Godward is off the hook. But should the jury find both liable, Yoon could seek compensatory damages from Cooley. And because there is no automatic right to appeal jury verdicts in Virginia, the stakes are even higher. For its defense,Cooley has turned to Thomas Cawley, managing partner of Hunton & Williams’ McLean office, and John McGavin, a partner at Fairfax’s Trichilo, Bancroft, McGavin, Horvath & Judkins. Both declined comment, citing the imminent trial. Wagner, for her part, tapped August Steinhilber III of Fairfax’s Brault Palmer Grove Zimmerman White & Steinhilber, who did not return calls seeking comment. It is well-established that Wagner exchanged several phone calls with a Cooley Godward client’s in-house counsel during her drive home on the evening of the accident. But Wagner has claimed attorney-client privilege: She says the in-house lawyer, Rabih Masri, was in fact her attorney, advising her and her husband about a business venture. Further complicating the situation is that in pretrial depositions, Wagner, 33, asserted her Fifth Amendment right to remain silent. It is likely she will do the same at trial: Despite her guilty plea to leaving the accident scene, she still risks exposure to manslaughter charges stemming from Naeun’s death. Employers have been found vicariously liable in civil suits stemming from cell phone-related driving accidents in other states, but the Wagner case is the first of its kind in Virginia. And that has employment and defense lawyers watching closely. “I think it’s going to be a very difficult case to prove against the employer,” says insurance defense specialist Thomas Mooers of D.C.’s Mooers & Associates. “But we are interested, from a defense perspective, in seeing how that issue is treated by both the court and the jury.” According to cell phone records, on the evening of the accident, Wagner exchanged at least 10 calls with Masri, a former Cooley associate who had recently left the firm to start Multicity.com. Repeatedly interrupted by connection and cell phone power failures, most of the calls were brief, according to court filings. Whether Wagner and Masri were on the phone at the exact moment her Mercedes hit Naeun is unclear. In a deposition Masri gave in April 2002, he stated that during one of his phone conversations with Wagner on the night of March 8, 2000, she said, ” ‘Something hit my car.’ ” He added, however, “ I don’t know if something had just hit her car or something had hit her car prior to, two miles back, 20 seconds before.” Masri’s deposition provides no certain answers to the question of whether Wagner was distracted by her cell phone usage when she hit Naeun. But it could provide Cooley with its much-desired exit from the lawsuit. During Masri’s deposition, Cooley Godward counsel McGavin asked if Wagner was “performing any legal work for you or for Multicity” on March 8. Masri answered, “No.” McGavin continued: “During any of your telephone calls with Ms. Wagner on March 8, 2000, was she serving as your personal attorney or your business attorney associated with your work at Multicity?” Masri answered, “Neither.” Masri later went on to say that his conversations with Wagner that night were “personal” and that he did not provide any legal advice. Yoon’s attorneys tried to exclude portions of Masri’s deposition from evidence. Judge McCahill denied their motion. Grenier and Noble did not respond to calls for comment. For Cooley Godward, Masri’s statement that Wagner was not acting as his lawyer would seem to be enough to avoid going to trial. And in some jurisdictions — Washington, D.C., for example — a judge could use such a deposition as a basis to dismiss a defendant. But Virginia rules forbid summary judgment based on deposition testimony. And so all the parties proceed to trial together. Cooley has additional ammunition: Wagner’s billing records for the night of the accident support Cooley’s argument that she was not doing work for the firm while on the phone. She billed only for work she performed later that night, after she returned home. Masri’s attorney, Scott Surovell of Fairfax’s Surovell Markle Isaacs & Levy, declined comment, citing the impending trial. Masri is only one of dozens of local attorneys expected to be called as witnesses. Wagner’s supervising attorney at Cooley Godward was partner Robert Vieth. He and fellow Cooley partners Mark Pitchford, Michael Klisch, and Janet Cullum are on the law firm’s list of intended witnesses. Cooley has also included Ursula Bass on its list. Bass is a friend of Wagner’s, according to court documents, and an associate at Wilmer, Cutler & Pickering, and may be asked to testify about e-mail communications she had with Wagner. Cooley also likely will call Wagner and her husband, John, to the stand. Wagner, too, has listed herself and her husband as possible witnesses. Wagner also lists her criminal defense attorney, Rodney Leffler of Fairfax’s Leffler & Hyland, Naeun’s mother, brother, and father, and her former supervisor, Vieth. As plaintiff, Naeun’s father filed a 21-page list of possible witnesses and exhibits — to which Cooley’s attorneys have filed strenuous objections. McCahill has not ruled on Cooley’s motion. In addition to the lawyers listed by the other parties, Yoon has listed Raymond Morrough, the assistant commonwealth’s attorney who prosecuted Wagner in Fairfax County, and Blankingship & Keith associate William Porter, a friend of Wagner’s who may be asked to testify about e-mails he exchanged with her. Voir dire is scheduled to begin Sept. 15, and the case is expected to last five days.

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