October 2010 - Washington State Bar Association

OCTOBER 2010
Where Have All the Lawyers Gone?
Attorneys and State Politics
by Jamila Johnson
O
rrin Johnson had hoped to be sworn
in as the assemblyman for the 25th
District in the Nevada Assembly in
January 2011. A 2007 graduate from
the University of Washington School of
Law, Johnson is a public defender in Reno,
Nevada, where he lives with his lawyer
wife, Alicia, and their young daughter,
Lillian. He started his campaign fewer than
three years after graduating law school. “It
makes sense that lawyers are attracted to
crafting the tools they work with,” Johnson
says, referring to the allure of shaping the
laws that attorneys wrestle with every
day. “But there is no glory in being a state
representative.”
There is also little glory in running
for office. Johnson knocked on close to
8,000 doors, attended countless forums,
and made innumerable fund-raising calls
while seeking a victory in the Republican
primary. He spent his Saturday mornings
slinging hotcakes to volunteers before
hitting the streets to drum up support for
his campaign. Armed with a Costco box of
Krusteaz Pancake Mix and full-time work
Orrin Johnson with his lawyer wife, Alicia,
and their daughter, Lillian.
and campaign schedules, Johnson jumped
into the political spotlight.
He is not alone. Roughly 550 miles
north of Reno, in Lake Oswego, Oregon,
UW law school graduate Will Rasmussen
(Class of 2006) won the Democratic
primary for the Oregon 37th House
District. As of August, he had personally
knocked on more than 7,000 doors — and
anticipates knocking on more than 10,000
by the general election in November.
While young lawyers who graduated
from Washington law schools are
running for office in sizable districts in
other states, seats in the Washington
State Legislature have not seen many
young lawyers as of late.
The Washington Legislature is a
part-time citizen legislature: those who
serve are paid miniscule salaries for
temporary jobs at the start of each year,
and then return to their other careers
when the weather starts to warm. If one
were to ask the average Jane on the street
what type of career most state legislators
have, she would probably make a flippant
comment about the pervasive reach of
lawyers in government. What comes as a
shock to the Jane on the street and the
young lawyer alike is that Washington’s
legislature currently has only four
practicing attorneys. In 1971, there were
32. Practicing lawyers made up more than
half of the Washington State Senate.
Washington 43rd Legislative District
Representative Jamie Pederson does
not have to wonder why this drop-off
occurred — he ran headfirst into one of
the many disincentives hindering lawyers
from serving in the state legislature. He
explained that public disclosure laws require
attorneys with a partnership interest in
1
WyLD
Washington State Bar Association
YOUNG LAWYERS DIVISION
Volume 24 • Issue 5
In This Issue
1
Where Have All the
Lawyers Gone? Attorneys
and State Politics
by Jamila Johnson
3
Editor’s Column
by Allison Peryea
4
President’s Column
by Kari Petrasek
5
The Lion of the Court
by Randy Trick
7
Trying Fashion Law On
for Size
by Leah Altaras
9
Witness Control on CrossExamination
by Maureen Howard
11
Taking Charge of Your Job
Search
by Naomi Sanchez
12
What You Do (and Don’t)
Learn From Working for a
Judge
by Thomas Holt
14
Small Claims Court: A
Cost-Effective Setting for
Prompt Dispute Resolution
by John Davis
15
A Business Valuation
Primer for the Practicing
Lawyer
by Lisa Tran
17
Building Your e-Discovery
Toolkit
by Julie Anne Halter
18
Why I Do Pro Bono Work
by Brian M. Flock
19
Washington Lawyers for
the Arts
by Jennifer Amanda Krebs
21
Etiquette for a New Job
by Pete Roberts
22
Meet the Trustees
a law firm to disclose any client who has
paid the firm more than $7,500. For Rep.
Pederson, who practices law at K&L Gates,
that requirement could never feasibly be
met — obtaining informed consent from
the number of K&L Gates clients doing
business in the state of Washington was not
practical. To run for office, he had to give
up his partnership and is now of counsel.
Running for state legislature as a newer
lawyer may make more sense than many
realize. While young lawyers running for
office usually must keep their day jobs —
and fit in doorbelling, candidate interviews,
forums, and endless e-mails — the public
disclosure laws in Washington may make
candidacy easier for lawyers who have not
yet made partner. But Rep. Pederson sees
youth as a double-edged sword: young
lawyers do not always have the money or
the contacts to run an effective campaign.
When Rep. Pederson ran for office, he
took a sabbatical for three months so
that he could give the campaign the time
it deserved. Young lawyers frequently do
not have that flexibility. “If you are going
to do it, you have to be prepared to put
everything into it,” says Rep. Pederson, who
personally knocked on 15,300 doors during
his campaign.
Rasmussen agrees with Rep. Pederson’s
assessment. “I have dropped my work hours
by 40 percent to have enough time to
campaign,” notes Rasmussen.
It is difficult for new attorneys —
who are often still paying off student
loans — to fund a viable campaign. “The
problem when you are running, and you
are younger, is that you just don’t have the
money,” Johnson says. He lost the primary
to a candidate who had invested $25,000
of his own money in the race. Despite the
loss, Johnson is glad he ran for office. He
feels like he had the chance to discuss
Live in Seattle? Looking to join a
board or a commission advising
the city of Seattle, the mayor, and
the City Council? Under of 29?
The YMCA has a program in collaboration with the City of Seattle
called Get Engaged. The Get
Engaged program places young
leaders on boards and gives
them the opportunity to get policy
experience. Applications are due
in April each year and are available at www.seattleymca.org.
Lawyers considering running for
public office should think long and
hard about why they are running,
but there are other preparations
that can be done in advance.
Political consultant Jason Bennett
provides the following advice for
young lawyers considering a
political career “someday.”
Oregon’s 37th District candidate Will
Rasmussen, a UW law graduate.
policy, to move his issues forward, and to
gain name recognition that he can use the
next time he runs.
The decision to run for office often
arises simply when opportunity knocks.
But, unfortunately, “opportunity does not
always come at a perfect time,” Johnson said.
In Johnson’s case, the sitting assemblyman
stepped down. Having an open race is a
huge advantage to a first-time candidate.
Rasmussen also seeks an open seat. “It’s kind
of like having kids,” says Johnson. “If you
wait until you’re ready, you’ll never do it.”
Campaign consultant Jason Bennett
sits at a table in downtown Seattle’s ART
Restaurant on a Sunday afternoon. It is the
month before the primary elections and
Bennett reviews candidate mailings on the
small screen of his smartphone as he awaits
his lunch. Bennett is the owner of Argo
Strategies, a full-service political consulting
firm that provides soup-to-nuts assistance
to political candidates.
Bennett cautions that campaigning is
a full-time job, and for many lawyers the
commitments associated with maintaining
an active legal practice make running
impractical. Those who try to campaign
only during off-hours lose valuable time
for doorbelling voter homes and seeking
financial support. A candidate running for
a part-time office also has to maintain his
practice. This is why full-time positions
are often more attractive to attorneys.
For young lawyers with more flexible
employment, there are other considerations
that should also be made. “The worst thing
you can do is to run for office without a
clear idea of why you want to run,” Bennett
said. A candidate will have to answer
“why?” 100 times or more on the campaign
trail. “If you can’t articulate it to yourself,
the voters aren’t going to respond.”
This is not a problem for Rasmussen.
“I decided to run because Oregon needs
2
• A candidate should make sure he
lives in a district with similar values.
Do not expect to run in a district for
an office where you will not be able
to represent the core values of the
people in that community.
• Candidates must discuss the time
commitment with family long before
deciding to run. Failure to do so will
create family problems that cannot be
easily solved. You will need to depend
on your family. Make sure everyone
knows what they are getting into.
• It may sound obvious, but get your
personal life in order. If you have debts
that have not been paid, settle up.
Make sure you are current with your
taxes and that your parking tickets are
all paid. Also realize that the spotlight
accompanying candidacy is not just
on your personal social life, but also
on your past and present professional
and financial lives.
• Accumulating a good base of support
for future candidacy should be done
in advance of starting a campaign. As
a young lawyer, make connections in
the legal community, in your neighborhood, and in your political party.
• It is also helpful to have served on
a board or a commission that relates
to the position sought. If you do not
have policy experience, use time on
the board or commission to build this
experience.
some help right now,” he says. “We need
to get more intentional about economic
development and education.” In November,
voters will determine if he will have the
opportunity to provide that help as their
state representative. ◊
Jamila Johnson is a litigator at Schwabe,
Williamson & Wyatt and the former editor of
De Novo. She can be reached at jajohnson@
schwabe.com or 206-407-1555.
Editor’s Column
Hang On to Your Socks
by Allison Peryea
M
ediocrity is an item few if any
young lawyers want to order off the
menu. If it were up to us, we would
cut it out of our diets completely. It
is probably one rung below abject failure on
the “Things We Fear” ladder. (And shoot,
at least failure has a little dramatic kick to
it.) That’s because the vast majority of us
are lifelong overachievers. We won’t settle
for perfectly adequate or good enough
when remarkable or extraordinary are options. We are annoying that way.
Our chosen career paths have not exactly discouraged the drive to stand out in
the crowd. First we fight for grades and
LSAT scores to get into law school; then
we compete for grades, spots on a law journal or moot-court team, and prized summer positions; then we vie for jobs — and
have to battle to keep them once we have
them. We are constantly prompted to show
the world just how darn special we are —
when the truth is that it is pretty difficult
to overachieve in a profession jam-packed
with overachievers.
Given my lawerly instinct to want to
earn gold stars for everything I do, my initial aim when facing my year as De Novo
editor-in-chief was to try to capture the
elusive, nonexistent Best-Editor-of-Anything-Ever title. I shouldn’t bother doing
something at all if I am not going to knock
readers’ socks off, I figured. But the reality
is that I will likely do a lot of things this
year that will not give readers the slightest
inclination to remove their socks. I might
even — gasp! — flirt with mediocrity. We
may even go out on a full-fledged date and
converse awkwardly over a shared bottle of
white wine. But I promise that it will not
develop into a serious relationship. I will do
my best to do my best.
With expectations duly lowered, I
want to share a few of my somewhat-ambitious-though-reasonably-achievable goals
for the upcoming De Novo year:
1. Provide content that not only
exists (my baseline objective) but is also
worth reading — whether it is inspiring,
informative, or merely entertaining.
2. Include articles addressing
subject matter of interest to a wide
audience. Most of my own legal experi-
ence is in litigation, so I want to make special efforts to ensure we include content relevant to other practice areas. I also hope to
include more in-depth, investigative pieces,
not simply “how-to”-style practice advice
(see Jamila Johnson’s article on running for
political office for one great example of the
former).
3. Use this column as a figurative pulpit to impress upon readers
how interesting and intelligent I am
by employing quirky personal anecdotes
and big words with definitions so complex
that you need a dictionary just to define the
words in the definitions. (To clarify: I am
being sarcastic here, which is one of my idiosyncratic qualities. Which reminds me of
a really quirky story about the time I made
a sarcastic comment in line at the grocery
store and ended up winning a free pineapple…)
4. Deepen the pool of authors
who contribute to De Novo, so readers can learn from writers of varied backgrounds with differing experiences and
experience levels (who will hopefully meet
their submission deadlines).
5. Avoid snore-inducing coverage of events (I personally am responsible for a couple snoozer recaps that ran
last year) without shortchanging De Novo’s
function as a communicator of what’s happened and what is going to happen that is
of interest to readers.
6. Incorporate more photos of
WYLD members and events. Why?
Because we are a good-looking bunch and
photos are more fun to look at than a pile
of text.
7. Do not ignore the break-dancing, rhinestone-studded, hot-pantswearing elephant in the room: the
crappy job market. In my (consistently correct) opinion, it is the biggest issue faced
by young lawyers today. It would be naïve
to jam De Novo with practice tips without
also recognizing that a lot of new lawyers are still simply trying to break into
the practice. With that in mind, I hope to
regularly include material that relates to the
job hunt — such as advice on interviewing,
networking, and staying motivated. (Check
out Naomi Sanchez’s article on taking
3
charge of your job search
for an example.)
My ultimate goal — which is the No.
1 goal of most editors — is to maintain
and increase readership (in large part by
accomplishing the aspirations enumerated above). A lot of people spend a lot of
time putting De Novo together every two
months, and even if we are pulling in Pulitzers, it does not matter if nobody is looking
at our publication. A couple of years ago,
budget cuts pushed De Novo to transition
from a print to an online publication. De
Novo has struggled to make the shift with
grace, approaching the Internet like a wallflower approaches the Senior Prom: willing
to come to the party but reluctant to get
down on the dance floor. Its PDF format
is pretty but not necessarily reader-friendly.
(Young lawyers are too busy, it seems, for
the single mouse-click needed to open the
document.)
I willingly admit that I am no technology ace — it took me about three days to
figure out how to make calls on my new
phone, and using call waiting (without
hanging up on someone) is still something
of a mystery. But during the next year, I am
going to do what I can (with the help of
De Novo’s talented designer and other people who are comfortable with newfangled
technology such as computers) to make De
Novo more accessible on the Net. I welcome any reader suggestions for me to consider and take credit for as my own ideas.
I accept the fact that my editor-inchief tenure might ultimately be described
as decent, okay, or merely acceptable.
There is a good chance I will not attain
everything I have set out to achieve (even
my cat has her doubts, spelling them out
in Friskies pieces on the guest-bathroom
floor). But my hope is that this understanding may free me up to recognize
when De Novo accomplishes something
amazing. You might just want to hang on
to your socks. ◊
Allison Peryea is an associate with Leahy
McLean Fjelstad, located in Kirkland,
which provides general counsel to community associations. She can be reached at allison.
[email protected].
President’s Column
A Greeting From the New President
by Kari Petrasek
I
t is hard to believe that yet another
Bar year is upon us. Welcome to the
2010–11 Bar year, during which we will
be celebrating the 25th anniversary of
the Washington Young Lawyers Division
(WYLD). It is my honor to serve as the
president of the WYLD, a division that
serves more than 6,500 Washington State
Bar Association (WSBA) members. (Bar
members who are younger than 36 and/or
have been in practice for five or fewer years
are automatically WYLD members.)
Let me introduce myself. I have an
extensive history of serving young and new
lawyers in Washington: I served for fourand-a-half years as the Snohomish District
trustee on the WYLD Board of Trustees,
and five years on the WYLD Trial Advocacy
Program Committee, including two years as
co-chair and one year as chair. I have also
been actively involved in the American Bar
Association Young Lawyers Division (ABAYLD), serving as a judge on the Awards
and Subgrants Team for two years and as
a member of the Member Service Team. I
was also one of the GP Solo and Small Firm
Scholars for the division. This coming year,
I will be serving as the division’s District 29
representative for Washington and Oregon.
I draw from all of these experiences in my
work with the WSBA.
It is my goal as president to take action
on the responses from the Membership
Survey completed last fall. WYLD trustees
and committee and program chairs are
enthusiastically preparing to help young
and new lawyers across the state with
issues facing our members. Furthermore,
the WSBA has recently incorporated
the WYLD into a new Education and
Outreach Department (more on this in
an upcoming issue); the new department
connects WYLD with the WSBA
Sections, WSBA CLE, and WSBA New
Lawyer Education.This new structure
will help enable the WYLD to partner
further with the WSBA practice sections
and to give input around educational
programming to meet member needs.
This year will see the launch of the firstever “Open Section Night” on November
17 in Seattle, hosted by the WYLD. All of
the WSBA sections and the entire WYLD
membership are invited to participate in
this event. Section leaders will provide
information to young and new lawyers
about their section, and why membership
with their section would be beneficial to a
new attorney. It will give our members the
opportunity to learn about sections that
pique their interest. It will also provide
WYLD members with the chance to build
meaningful professional relationships
with other attorneys attending this event.
Additionally, several sections will be
co-hosting social networking events around
the state with the WYLD to provide
opportunities for our members to network
with established attorneys and, for those who
are interested, build mentoring relationships.
The most successful mentoring relationships
are often created when both sides find a
connection with the other.
Other positive activities will be
introduced to Washington this year
as a result of young and new lawyers’
involvement in the ABA YLD. WYLD
members will have an opportunity to
get involved in a public-service project
called Serving our Seniors, which is an
ABA-YLD program that will be new to
Washington. Plans are also being made
to recognize the contributions that the
WYLD has made to the legal profession
during the past 25 years. Lastly,
because of our division’s long-standing
relationship with the ABA-YLD, Seattle
has been selected as the site of the ABAYLD October 2011 fall meeting. A host
committee is working with the ABAYLD in planning for this conference. I
encourage all young and new lawyers to
attend this conference, which will be held
October 14-15, 2011.
I am excited about the upcoming
events we have planned, and hope that you
will be too. It is important for the WYLD
to provide relevant and beneficial services
and programming to our members across
the entire state. Information about all of the
division committees, programs, and publicservice projects is available at www.wsba.
org/lawyers/groups/wyld. Take a look at
what the WYLD has to offer and consider
joining an e-mail list or committee that
interests you. If you have suggestions about
how the division can better serve members
in your area, please contact me, Presidentelect Dainen Penta, or your respective
WYLD trustee (listed on the last page of
De Novo), and share your ideas or concerns.
Our division staff liaison, Brian Halcomb,
can be reached at [email protected], and
welcomes input. We aim to serve each
young and new lawyer in the state and look
forward to hearing from you and seeing
you at any of our upcoming events. ◊
Kari Petrasek is the 2010–11 president of the
WYLD. She is an attorney at Carson Law
Group, P.S. in Everett and can be reached at
[email protected].
WYLD Open Section Night
When: November 17, 2010; 5:30–7:30 p.m.
Where: Davis Wright Tremaine,
1201 Third Ave., Ste. 2200, Seattle
Free event; light appetizers and refreshments will be served.
Curious about the WSBA’s 27 practice-area sections and what they have
to offer new attorneys? Attend an evening with practice-area leaders,
learn how to utilize the sections for networking and skill development,
and figure out which sections you might like to join. Watch the WYLD
webpage (www.wsba.org/lawyers/groups/wyld) and Facebook site
(www.facebook.com/wastatebar.wyld) for details.
4
The Lion of the Court
At 79, criminal defense attorney Anthony Savage is still (politely) roaring
by Randy Trick
I
t is hard not to like Anthony Savage.
In 55 years as a Seattle lawyer, Savage
has endeared himself to countless juries,
winning them over by showing nothing
but politeness and respect to his opposing
counsel and showing each panel of 12 laypersons that he’d never dare try to pull one
over on them.
“I try to lay it out as it is,” Savage said.
“The minute the jury or judge finds out
you’re dissembling, you’ve lost. You don’t
want to get that — not even a hint of that
— wafting through the court room.”
Savage, who at 79 is among the oldest full-time practicing attorneys in Seattle, has long since gone grey. Red hair
from younger years shows up in hints in
his full beard around the left corner of
his mouth and high on his cheekbones,
under the arms of his big, black-framed
eyeglasses. In his Pioneer Square office
he works in a leather chair that squeaks
terribly when he moves, but he rarely
changes position as he reads, writes, and
talks. He has a shuffle to his step and
shoulders that hunch over from supporting his six-foot-plus frame.
He was once described in the Seattle
Times as “the tortoise in a courtroom of
hares, stroking his gray beard, rocking back
in his chair and often appearing to be on
the edge of sleep.” But, Savage said, he is
still years from retirement. “I’m 79. I’m not
179. I still get to work every day,” he said.
He acknowledged, however, “I’ve got a lot
more trials behind me than ahead of me.”
His age seems to have only made him
more endearing to jurors and his peers. “I
always like watching him walk around the
courthouse,” joked Senior King County
Deputy Prosecutor Scott O’Toole. During his 20 years as a prosecutor, O’Toole
has faced Savage in homicide cases, sexual
assault cases, and others. “I don’t know if
you’ve ever seen him walk, but he has this
little shuffle. When he’s in front of a jury
he really puts it on, and has an innocent
look like, ‘What? Me?’”
Savage’s rapport with juries, his incisive and efficient questioning, and his ability to find the redeemable in his clients have
built his reputation as a brilliant and vigor-
ous advocate and considerate counselor.
“You may be smarter than some [jurors], and you may know more about life
than some of them, but you don’t know
more than them,” Savage said. “They know
what’s going on. I get rid of my mannerisms
and habits that make me look smart. But I
like to show off sometimes; anyone who is
in court likes to.”
His reputation has also brought him
notoriety. In the late 1980s, he represented Charles Campbell, who violently beat,
raped, and killed two women while on
work release.
councilman Anthony Fernandez, who
was accused of killing his wife. In the early 1980s, Savage was appointed counsel
for drug-smuggling, neo-Nazi members
of the group The Order.
Most recently — and perhaps most
notably — Savage was asked to join the
defense team for the “Green River Killer,”
Gary Ridgway. “If you get a [high-profile]
case, and Ridgway is a perfect example,
you’ll be all over the TV and newspapers,”
Savage said. “People are going to see you
and unless you make a fool of yourself,
they’ll seek you. That’s fine with me, but I
don’t do it for that purpose.”
And though the public may recognize Savage through his prominent cases,
colleagues say he’s just as zealous an advocate in the courtroom when representing less notorious clients. The publicity
of a crime “doesn’t [make a difference]
with Tony because you expect Tony is at
the top of his game and plays it the way it
should be,” said O’Toole.
Savage also has a reputation as conducting a powerful cross-examination —
one that is incisive, sharp, and sometimes
decisive. “There is an economy with the
way he tries cases, especially with crossexam,” O’Toole said. “He can ask more
in three questions than some attorneys
can ask in 30. It takes tremendous confidence and humility to ask just three
Anthony Savage in his Pioneer Square
questions.”
office.
Jurors also respect Savage’s effi
In 1989, Savage represented Constan- ciency, noted O’Toole. A juror’s time is
tine “Tony” Baruso, the one-time head of important, as is the judge’s, and neither
the Alaska Cannery Workers Union and cares to see an attorney show off, or show
suspected mastermind behind the shooting anything less than respect to a witness. “If
death of two at his union hall. In a wrong- you’re dumb and you try to bully a witful-death case with Savage as his lawyer, ness, try to trick a witness, the jury sees
Baruso evoked the Fifth Amendment pro- that,” Savage said. “A great trick to learn
tection against self-incrimination 75 times is to sit down and shut up. There is no
on the stand.
point in cross-examining when you’re
Savage represented David Lewis ready to give up something.”
Rice, who killed the Goldmark family of While some defense attorneys meafour on Christmas Eve 1985. State House sure their worth by their win-loss ratio,
Speaker John Bagnariol hired Savage Savage does not, and probably should
after he was indicted in the 1981 anti- not. He has lost many cases, including
gambling sting known as “Gamscam.” many of his high-profile assignments.
Savage represented Arnold Roy Brown, a Juries sent Campbell and Rice to death
child murderer, and former Longview city row. Savage helped Ridgway avoid the
5
same fate.
So he doesn’t keep score. But Judge
Tim Bradshaw, of King County Superior
Court, who was previously a King County
prosecutor for 20 years, will keep score for
him. “If the question is ‘did his clients receive some of the best legal defense?’ he’s
batting 1.000,” Bradshaw said.
Before becoming a judge, he faced
Savage as a prosecutor. Before that, Bradshaw sought out Savage’s advice because
he knew he wanted to do trial work. He
watched Savage’s court demeanor and the
way he earned respect from opponents and
juries during the trial. “He respects jurors,
he respects their collective wisdom,” Bradshaw said. “There is no need to talk down
to them.”
Savage says his relationship with jurors comes from pragmatism. He believes
that the layperson is rarely an amateur
about everything. Jurors are watching, observing, and critically trying to make sense
of everything in the courtroom, even the
attorney’s politeness. Lawyers may know
far more about the law than jurors do, said
Savage, but that does not make the attorney superior.
O’Toole said that working with Savage
has taught him not to waste the jury’s time
in presenting the state’s case either, or to
make a case out of attacking the defense attorney. “They can smell b.s.,” O’Toole said
of jurors.
O’Toole said Savage’s way with juries,
including his politeness and directness,
also changes the typical adversarial roles
in court. “He is such a joy to work with,”
O’Toole said. “It’s kind of annoying, especially with juries, because it’s hard to demonize him. He does not have that need
to be the cleverest person in the room …
he does not need to puff his chest.”
Nor does Savage puff his chest with
other members of the bar, a quality that
friends admire and say is in short supply
nowadays. “He treats everyone decently
and with respect, and not every member
of the bar does,” Bradshaw said. “He realizes that the system is symbiotic, that
we all have a role to play. He does not
get personal and see it as a zero-sum
game.… It is how professionals should
treat each other.”
Savage said his professionalism and
courtroom demeanor are the same as
that of his father, a U.S. district attorney
in Seattle during the Hoover administration. Savage followed his father into
the practice of law after graduating in
1955 from the University of Washington
School of Law. Savage grew up in Seattle, attended Roosevelt High School,
and went to the East Coast to earn his
undergraduate degree from Wesleyan
University in 1952.
After joining the Washington State
Bar in 1955, Savage worked for a small
civil firm earning $250 a month and
half of whatever business he could bring
through the door. Half of zero was zero.
So, when Charles Carroll, King County
prosecutor from 1948 until 1970, offered
Savage $515 a month, Savage became a
prosecutor.
“When judges and
prosecutors talk
about jail, I may be
the only one of the
lawyers in the room
who knows what they
are talking about,
because I’ve been
there.”
“Back then, lifetime prosecutors were
not the norm; they were the exception,”
Savage said. “You learned how to defend
cases by prosecuting them.”
Eventually Savage hung out his own
shingle. Criminal law “is where the action
is,” he said. “A criminal case walks into your
office and it’s rewarding. In six months it
is usually over. A civil case can sit around
for two to three years, and there are always
more depositions. I don’t have the patience
to do it.”
Though his time representing the state
is long past, Savage shows great respect
for his adversaries. Those who have faced
him are quick to praise him for that trait.
“He’s very upfront, plays by the rules, and
is a gentleman in every way,” O’Toole said.
“You can absolutely accept his word as the
truth and his bond.”
Savage said he is disappointed that
adversaries in a trial court show less civility than they used to, and sometimes
shed it fully outside the courthouse. “I
hope somehow or another we can get on
better terms with the prosecution side of
things,” he said. “We’re all working for
the same thing; we all want to get a hold
of the bad guys and we want to make sure
the bad guys we get a hold of are the right
6
ones. Society cannot work without police and prosecutors, and it cannot work
without me.”
Five decades practicing criminal
law has not changed Savage’s anti-death
penalty position. But he is pleased with
other reforms, such as the justice system’s
adoption of alternatives to jail during the
past couple of decades. “Slowly but surely
we’re getting the point that ‘lock ’em up’
is not the solution to our criminal justice
system,” he said. “Every innovation we’ve
had in the last 10 years has been with that
in mind.”
Still, the justice system is expensive
and grows more so each year. At the moment, it doesn’t seem as supported as it
ought to be, he said. “The defense agencies, I hope they get additional funding so those young people don’t have to
carry those heavy caseloads. They’re just
swamped,” he said. “There is nothing
wrong with appointed counsel, except
that they are overwhelmed. If you get one
serious felony a month, that requires a lot
of time,” let alone 17 felony cases.
Savage has a solution. “What I would
like to see isn’t going to happen,” he cautioned. “But what I’d like is for judges at
the appellate level to say, ‘We don’t care
about your funding problems, this guy was
entitled to this kind of representation and
a speedy trial, and this isn’t it,’” he said.
“A few of those cases get overturned and
that’ll change things. But that’s not going
to happen.”
Though he is known for representing
others accused of crimes, Savage has a tale
about his own brush with the law. “You did
learn about the time I went to jail, right?”
he asked, when questioned about formative moments in his career. “When judges
and prosecutors talk about jail, I may be
the only one of the lawyers in the room
who knows what they are talking about,
because I’ve been there.”
Savage learned the hard way that the
federal government is serious about citizens paying their income taxes. In 1973,
he was indicted for failing to pay his full
income tax responsibility. He pled guilty
— “because I was” — and served 30 days
in the King County Jail, sentenced by
Judge William Goodwin.
Savage’s first post-incarceration trial
was in federal court in Tacoma, before
Judge Goodwin. That coincidence was
strange enough. Savage’s eyes grow red
and wet as he continues, and his speech
turns more deliberate and slow, as if he
is mentally writing a closing argument.
“And he paid me a very nice compliment
at the end,” recalled Savage. “And that
was my last time before him. I don’t know
if I even saw him again. He passed away
shortly after.”
It wasn’t the compliment itself that
meant so much to Savage, but what it
meant at the moment — what it showed
him at the time. It gave him the faith
to know that “you screwed up, and everything is going to be okay.” It let him
move on, continue his life and his career,
he said. It was something he worried
about at the time, and it is something he
knows many of his clients worry about
when they come into his office, meet
him in jail, and sit next to him at the defense table. The compliment was nothing too special or profound, he recalls,
but it was “just enough to let me know
that it’ll be okay.”
As a result of having been a defendant, and having paid his own debt to
society, Savage feels his law practice improved; it showed him that there isn’t an
awful lot of difference between those on
the outside and inside. “Everyone has the
same sets of hopes and worries,” Savage
said. “I don’t think I’d trade that experience for anything.”
The compliment from Judge Goodwin, too, is something he would not
trade for anything. “That’s what I advocate…you made a mistake but don’t let
it subsume your entire life,” Savage said.
“Get it done, get it over with, and get on
with life.”
And though his time behind bars may
be have faded from the public’s memory
like the ginger in Savage’s beard, colleagues and juries still see the way it affected him.
“He’s absolutely a professional,” said
O’Toole, who was unaware of Savage’s
30 days in jail. “He has that rare quality
among defense attorneys where he appreciates his role as counselor in addition
to his role as advocate. I cannot imagine
anyone more universally admired by the
criminal defense bar, or the criminal bar,
for that matter.” ◊
Randy Trick is a second-year law student at
Seattle University School of Law. Before starting law school, he was a newspaper reporter
and editor, working both as a student and professionally. He can be reached at [email protected].
Trying Fashion Law on For Size —
Is it the Right Fit For You?
by Leah Altaras
V
ersace, Burberry, Prada, Dior... Do
I have your attention? Have you
ever been called (or self-identified
as) the “fashion police”? Do you attend
fashion shows or shop in boutiques during
your spare time? Do you wonder whether
the Louis Vuitton bag the lady on the bus
carries is authentic? Do you thumb through
Vogue magazine during your spare time?
If so, you may be intrigued by the idea of
combining your interest in couture with
your law degree.
Even if you don’t really pay attention
to fashion trends, but are interested in intellectual property law or business mergers
and acquisitions, the practice of fashion
law could interest you. Fashion law is an
expanding area of law with real career possibilities. Fashion designers and retailers,
from R.E.I. (based right here in the Pacific Northwest) to New York-headquartered
Tiffany & Co. — and even Walmart and
Kmart — employ attorneys to monitor legal affairs that affect the day-to-day operations of the fashion industry.
Much like entertainment law or international law, fashion law is a term relating to the understanding of a specific
trade, as well as the concepts and issues
viewed through the spectrum of law practice. Fashion law encompasses many areas
of practice, such as copyright analysis and
contract drafting, business and sales trans-
7
actions, and litigation. Any type of law that
the business of “fashion” could encounter is
grouped into the term.
Fashion law crosses state and international borders in the form of import, export, distribution, and customs matters, as
well as corporate mergers and acquisitions,
joint ventures, and other strategic business
relationships. Antitrust, franchise protection, labor and employment, tax, and even
immigration and constitutional law also
come into play.
Trends in fashion law, much like clothing trends, often develop in the geographic
centers of the industry, such as New York
City. Ted Max, who heads the fashionlaw team at Sheppard Mullen Richter &
Hampton LLP in New York, points out
that fashion law is a developing area due
in part to advances in technology that allow mass production of clothing, handbags,
perfumes, and the like. As technology and
media develop, so does fashion law.
Celebrity spokespeople and media attention play a role in the issues addressed
by fashion-law attorneys. Max’s team includes attorneys who have expertise in
many areas of law. His firm has an office in
Shanghai, China, a major manufacturing
hub for the fashion industry. Max’s firm
publishes a fashion and apparel blog that
addresses timely legal issues that affect
the industry (www.fashionapparellawblog.
com) and sponsors industry seminars with spoof of outdoor-gear maker North Face
titles such as “Getting Real with Fash- while studying at the University of Mision: Emotional Branding, A Fashionista’s souri in 2007. Winkelman created his
Guide to Reality TV, and Alternative brand — South Butt — as a joke and to
Fashion Retailing,” and “Don’t Trip on go along with the anti-logo movement in
the Catwalk: Hot Legal Topics Facing the general. North Face sent a cease-and-desist
Fashion Industry This Fall.”
letter to Winkelman. Ultimately, South
Trademark law as it relates to fashion Butt has prevailed; Winkelman offered to
law continues to develop. In June, designer sell his brand to North Face for $1 million
brand Gucci survived a motion to dismiss — an offer he has since rescinded.6
its lawsuit alleging that credit-card process- Legal issues involving fashion brands
ing service providers were liable for trade- and trademark disputes have even bled
mark infringement because
into the crimiof their role in processing Fashion law is a
nal arena in
payment for counterfeit
our state. Tideveloping area due
goods sold online.1 Engtle 18 of the
land’s Court of Appeals in part to advances in United States
recently held in L’Oreal v. technology that allow Code outlines
Bellure that a company’s
crimes
relatmass production of
comparison of its perfumes
ing to traffickto those of cosmetics giant clothing, handbags,
ing and sales
L’Oreal constituted trade- perfumes, and the
of counterfeit
mark infringement. 2
goods. In July
like. As technology
This year, in litiga2009, a federal
tion that is ongoing, a fed- and media develop,
judge sentenced
eral district-court judge so does fashion law.
Wa s h i n g t o n
declined to find online
resident Bryan
auctioneer eBay liable for infringement Polee to a three-year prison term for violatof Tiffany & Co.’s trademark for goods ing federal laws prohibiting the importing
sold on its website.3 Foreign courts have and reselling of fraudulent goods.7
also considered cases involving eBay, with RCW 9.16.030 establishes the crime
differing results. For example, a French of sale and distribution of counterfeit
court in 2008 issued a judgment against goods. The penalty provision for a vioeBay in the amount of 40 million Euros lation of that statute, RCW 9.16.035,
($63.2 million) to be paid to luxury goods identifies both felony and misdemeanor
company LVMH Moet Hennessy Lou- violations. A felony must involve 1,000 or
is Vuitton (known in part for its iconic more items or a total retail value of more
handbags) over counterfeiting allega- than $10,000. For a gross misdemeanor,
tions. In April 2010, a German court of there must be at least 100 items, or at least
appeals ruled that eBay must take steps $1,000 in total retail value. If you hapto prevent the sale of counterfeit Rolex pen to own some knockoffs, you can rest
watches on its site.4
easy: purchase and mere possession are not
First Amendment issues are often in- crimes, unless it is willful and knowing
tertwined with trademark issues in fashion and for financial gain or the manufacture,
law. The amendment protects parodies of use, display, distribute, sale, or possession
trademarks unless they tarnish the im- with intent to sell. Local law enforcement
age of that brand by creating an undesir- agencies now actively investigate and
able, unwholesome, or unsavory mental prosecute such “fashion crimes.”
association with that mark.5 In Jordache The future of fashion law is limitEnterprises, Inc. v. Hogg Wyld Ltd., den- less. Virtual reality realms, such as Secim company Jordache sued a company ond Life, provide outlets for real people
that marketed a brand of jeans known as to purchase not-so-real designer goods at
Lardashe, which were designed for full- an affordable price.8 Top brands actually
figured women. The court ruled in favor design fashions for Second Life, and their
of Hogg Wyld, determining that the Lar- products carry a real value. Max says that
dashe name lacked sufficient similarity to people who might not be able to afford
Jordache and that the Lardashe label was real designer products could satiate their
not misleading customers.
expensive tastes in virtual reality. Virtual
In a more recent case, college student reality offers a venue for those who simply
Jimmy Winkelman began marketing a want to try out designer clothing before
8
buying it in real life. (One can only imagine what types of legal issues could arise
when counterfeit brands are sold on Second Life’s black market.) Famous fashion brands also design fashions for video
games, a major marketing tool.
How does one land a job in fashion law?
Max suggests starting at the very beginning: nail down a skills-set and understand
the basics of an area of law related to fashion law. If you are interested in intellectual
property, for instance, master copyright and
trademark law. If you are interested in business litigation or mergers and acquisitions,
get familiar with those practice areas. Max,
who started out his legal career with a focus
on transactions and litigation in the area of
intellectual property, slowly developed his
practice and obtained fashion clients in his
areas of expertise. He has since formed a
team of experts to address the legal needs
of even the most sophisticated designer.
Of course, a passion for fashion does not
hurt — after all, knowing about all areas of
the business can inform the legal practice.
Unfortunately, for those of us drawn to the
glamour of the fashion industry, there is a
great risk of disappointment. Fashion law
is, after all, a legal practice area — simply in
a more stylish outfit. ◊
Leah Altaras is a deputy prosecuting attorney
for King County. She currently works in the
Economic Crimes Unit. She can be reached at
[email protected].
Notes
1. Gucci America, Inc. v. Frontline Processing
Corp., No. 09 Civ. 6925 (HB) 2010 WL
2541367 (S.D.N.Y. June 23, 2010).
2. See www.fashionapparellawblog.com/
2010/06/articles/fashion-cases/smellslike-trademark-protection-copycat-perfumes-cannot-engage-in-comparative-advertising-on-odor-of-the-court.
3. Tiffany (NJ) Inc. v. eBay Inc., 600 F.3d 93
(C.A. 2 N.Y. 2010).
4. Stone, Brad. “Court Clears eBay in Suit Over
Sale of Counterfeit Goods”; New York Times
(July 15, 2008), available at www.nytimes.
com/2008/07/15/technology/15ebay.html.
5. See Jordache Enterprises, Inc. v. Hogg Wyld
Ltd., 625 F.Supp. 48 (D.N.M. 1985).
6. See http://marketplace.publicradio.org/
display/web/2010/01/15/pm-south-butt.
7. See www.ice.gov/pi/nr/0909/
090925seattle.htm.
8. See http://secondlife.com/shop.
Off the Record
Mastering Foolproof Witness Control
on Cross-Examination
by Maureen A. Howard
I
n the wonderfully entertaining and
instructive video, The Ten Commandments of Cross-Examination,1 the late
Irving Younger offered this appraisal
of lawyers’ ability to conduct cross-exam:
“Most lawyers do it badly all the time, no
lawyer does it well all the time, and no
lawyer in the early stages of his career does
it well at all.” Happily, we’ve come a long
way since Younger’s grim 1975 assessment, due to the instruction of maestros
like Younger, Terrence McCarthy (McCarthy on Cross-Examination), and Larry
Pozner and Roger Dodd (Cross-Examination: Science and Techniques). All too often,
however, lawyers still find themselves in
trouble on cross-examination, sparring
with an out-of-control witness. There is,
however, a simple system for maintaining
witness control on cross-exam, and there
are some easy techniques for regaining
control if things go awry.
A lawyer has lost control of a crossexamination when she engages in an ad
hoc dialogue with the witness. That’s because, despite the question-answer format,
cross-exam is not a conversation. A trial
lawyer who finds herself embroiled in an
impromptu discussion with a witness on
cross-exam (or worse, an argument) has lost
control of the witness and the examination.
The key to avoiding this loss of control is
preparation, preparation, preparation!
Get the Facts Before Trial. Once
trial begins, a lawyer must accept the fact
that the time for discovery has come and
gone. A good cross-examiner will have
mastered the facts of the case before trial
and constructed a cross-examination based
exclusively on those facts. No matter how
desperately a lawyer is itching to learn
the answer to a newly conceived question
during trial, she will resist the urge if she
wants to maximize witness control. The
best cross-examiners will tell you they ask
questions only when they already know
the answers. This strategy maximizes predictability and control on cross-exam and
allows for quick impeachment if the witness fails to agree on any fact.
Source Every Fact. A corollary to
the maxim “ask only questions you know
the answer to” is “source the answer to each
question.” This means that for each question, a lawyer should not only know the
fact-based answer in advance, she should
know where to quickly access the evidence
to prove up that fact if needed. In most
cases, this will be a prior inconsistent statement, such as a deposition. Do not rely on
your memory in this circumstance. Rather,
annotate the source of each answer right
next to the question. It is frustrating for
jurors (and the judge) to wait for a lawyer
to search for impeachment evidence. And
when the adrenaline is pumping and a witness stubbornly refuses to confirm that a
straightforward fact is true, it can be difficult for a lawyer to maintain composure
and put a finger on a fact in a deposition
based on memory alone.
Just the Facts. A foolproof crossexam is constructed of facts, because a witness can quibble with anything subjective,
such as conclusions, opinions, or inferences.
Therefore, a tight cross-exam does not
include any comparators or adjectives, because they invite dialogue. For example, in
a trial for assault:
Q: There were a lot of people present when
the fight broke out?
A: Nah, I wouldn’t say that.
Q: Well, this was at Safeco Field?
A: Yes.
Q: During a Mariners baseball game?
A: Yes.
Q: During the middle of the fourth inning?
A: Yes.
Q: And the fight broke out on the pitcher’s
mound?
A: Yes.
Q: So, there were a lot of people present?
A: Not really. Safeco Field holds about
50,000 fans, but it was raining that day and
the Ms were playing the Texas Rangers —
so there were only about 6,000 people there.
As the above illustrates, “shortcut” adjectives or conclusions are often anything
but shortcuts. A more reliable route is to
rely only on facts, sequencing them so ju-
9
rors come to the subjective conclusion on
their own.
Often, lawyers find
themselves in trouble on cross-examination, sparring with an out-of- control witness. There is, however, a simple
system for maintaining witness control on
cross-exam.
One New Fact at a Time. Another
technique to maximize witness control on
cross-exam is to include only one new fact
per question. A question may contain multiple facts, but only one of them should be
new. Otherwise, if the witness rejects the
facts as presented, the lawyer is left unsure
where the fight is. Which fact, or facts, is
the witness disputing? For example, suppose the question is, “You were walking
down Third Avenue in Seattle at noon on
August 14 when you saw three men run
out of the Bank of America?” If the witness responds, “No,” the lawyer is forced
to retreat and review each fact one by one
to identify which one is disputed. This
method is awkward and time-consuming,
and it can damage the lawyer’s credibility
with the jury.
Techniques to Regain Control.
Even lawyers who craft short, simple, single-fact, leading questions may sometimes
find themselves facing a witness who refuses to cooperate. In that case, there are techniques to expose such a witness as evasive
and uncooperative without injuring your
credibility with the jury.
• Do Not Interrupt the Witness. If the
witness refuses to give a straight answer
to your clean, short, one-new-fact question, do not become agitated and declare
war. Unless the witness is damaging your
case, such as starting to talk about a matter
previously ruled inadmissible (or one you’d
like to have the judge rule inadmissible),
do not interrupt him. You will appear rude
and seem like you’re trying to hide the ball
from the jury. If the witness refuses to give
a straight answer to a simple fact-based
question, let him blather on. The jury will
see him for the truth-dodging weasel he is.
• The Hand Stop. Although you shouldn’t
interrupt a witness, you can sometimes silently direct him to stop speaking by putting your hand up as if to say, “Stop.” It
is amazing how well this technique works,
even with arrogant, caustic witnesses. Perhaps this is because the nonverbal command is rooted in childhood and hardwired into us. The hand gesture should
not be flamboyant, however. The goal is to
subtly cue the witness to stop, not to draw
the jury’s attention to you by parodying a
police officer directing traffic. The beauty
of the subtle hand stop is that the lawyer
regains control of the witness without appearing rude.
• Repeat Your Question. If the witness
blathers on nonresponsively, just repeat
your simple question. Doing this three
times underscores for the jury the witness’s
refusal to cooperate. It can also be effective
to write the question down for the witness
to drive home to the jury the simplicity of
the question and the inherent unfairness of
his refusal to answer the question.
• “Okay” and “That’s Right.” Another
reason foolproof cross-exam includes only
simple leading questions the lawyer knows
the answer to (and can readily impeach
with pre-sourced answers) is because a
question put to a witness on cross-exam
but not admitted is often viewed by the
jury not as yet unproven — but rather that
the opposite is proved! If the witness is refuses to acquiesce, you must impeach. If the
witness gives a substantively comparable
answer, however, do not fight it. Instead,
use the “Okay” technique:
Q: The traffic was heavy?
A: Well, there were a lot of cars.
Q: Okay, there were a lot of cars.
Likewise, if the witness gives a better
(but different than you expected) answer,
do not fight it! Instead, use the “That’s
Right” technique:
Q: Sir, you had two insurance policies on
your wife’s life at the time of her death?
A: No, I had three.
Q: That’s right: you had three insurance
policies on your wife’s life.
• The “Reverse/Repeat.” If a witness will
not answer a simple, one-fact question after
multiple attempts, try flipping the question
180 degrees and putting the polar opposite
fact to him. For example:
Q: There were other people at the office
party aside from you and Mr. Smith?
A: Well, it was really late and pretty much
everyone had left early...
Q: There were other people at the office
party besides you and Mr. Smith?
A: Well, all the people from my department had left well before 7:00...
Q: So, you and Mr. Smith were the only
ones left at the office party?
It is amazing how a witness who will
stubbornly refuse to agree with something
will quickly reject the 180-degree opposite
proposition.
• Beware the “Nonresponsive” Objection.
It is the prerogative of the examining attorney to object when a witness is nonresponsive. The danger is that the objection may
well highlight the nonresponsive testimony
for the jury. As a general proposition, the
“nonresponsive” objection is a tripartite endeavor: the lawyer 1) objects to the testimony as “nonresponsive”; 2) moves to strike;
and 3) asks the judge to give an instruction
to the jury to disregard the testimony. Doing this can have the unintended consequence of having the testimony repeated
multiple times in front of the jury, which is
counterproductive. The better road is often
to let the nonresponsive answer slide.
• Do Not Go to the Judge for Help. If
you have crafted clean, short, one-new-fact
questions, you will not need to seek help
from the bench. If you use the “repeat the
question three times” technique, it is unlikely the judge will need to jump in and
instruct the witness that he needs to answer
the question. You, as the lawyer, do not ask
the judge to do this — it signals your loss of
control to everyone in the courtroom.
• Do Not Spank the Witness Until 10
Minutes After the Judge and Jury Want
You To. Although cross-exam need not be
“cross,” there are times when it is appropriate to deliver some attitude to the witness.
Just make sure the judge and jurors are
grateful when you do this. Remember, the
goal on cross-exam is to discredit the witness, not yourself. Having an attitude with
a witness before it feels appropriate to the
jurors conveys that you are motivated by
emotion instead of logic. This undermines
your credibility, which is your most valuable
asset as a trial lawyer. ◊
Notes
Trial Advocacy Program CLE
When: Saturday and Sunday, October 23–24
Where: The New WSBA-CLE Conference Center, Seattle
Mock Trial – Saturday, November 13, Seattle Municipal Courthouse
$250 for full participation and 19 CLE credits (pending)
$150 for CLE only – 12 CLE credits (pending)
The annual WYLD Trial Advocacy Program offers intensive training by
litigation experts and a true-to-life mock trial experience. Previous participants commented that the program was “completely engaging and
thought-provoking. Entertaining, real-world skill development.”
To register for the full TAP program, visit www.mywsba.org/Default.aspx?t
abid=90&action=MTGProductDetails&args=5762. To register for the CLE
only, visit www.mywsba.org/Default.aspx?tabid=90&action=MTGProductD
etails&args=5761.
10
1.Younger’s Commandments are: 1) be brief;
2) short questions, plain words; 3) ask only
leading questions; 4) never ask a question
unless you know the answer; 5) listen to the
answer; 6) do not quarrel with the witness;
7) do not repeat the direct exam; 8) do not
allow the witness to explain; 9) do not ask
the one-question-too-many; and 10) stop
when you have accomplished your goals.
“Off the Record” is a regular column on various
aspects of trial practice by Professor Maureen
Howard, director of trial advocacy at the University of Washington School of Law. She can
be contacted at [email protected].
Visit her webpage at www.law.washington.
edu/Directory/Profile.aspx?ID=110.
Taking Charge of Your Job Search
by Naomi Sanchez
I
t is difficult to muster up the energy to
find your next job when you are constantly hearing about the dismal economy
and job cuts — especially while you are
applying for new positions on the computer
without results. What can you do in times
like these when you are on the job hunt?
The economic upheaval in 2008 left
the country with 31,000 fewer attorney
and legal staff positions. Summer associate
programs shrank and the number of deferrals rose while firms and local governments
planned for “cautious hiring.” Likewise,
dramatic shifts in hiring practices created
a spotty job market centered on opportunities in “niche” law practices, emerging solo
practices, and small law offices.
The current legal job market is pushing job seekers to rethink their career paths.
Positions as judicial clerks (which are highly competitive), contract attorneys, solo
practitioners, and associates in small firms
have become more attractive to applicants.
Positions abroad and in policy and education have also grown in popularity and variety. It also does not hurt to be open to
changing geographic locations, if necessary,
to get the “right fit” for a position. Business
and consulting positions are more available
for those who seek non-traditional avenues
for employment. Growth in the federal
government, though slow, has occurred, but
the application process requires tracking
openings and waiting longer for responses.
Given this rocky employment landscape, it
pays to be a leader in your job search —
largely because you cannot depend on anyone else to do it for you.
We often think that leaders are those
who possess titles and positions of power,
but that is not always the case. Leaders
can be anyone, including the job seeker.
Leadership skills are necessary in becoming a professional and critical to career
success. Leadership generates action and
results. Projecting a leadership persona in
your attitude, skills, and outlook will differentiate you from other job candidates.
Taking charge of the goal at the beginning of a job search makes a difference.
A job seeker who asks, “How can I find
job?” should modify the question into this
statement: “This is how I will find my job.”
Employers select candidates who present
a “can-win” attitude and exude confidence
in how they present themselves.
Law schools are recognizing that developing a professional identity as a leader
takes time and effort but is critical to career
development. At the UW School of Law,
for example, Dean Kellye Testy has initiated a vision for preparing law students in
becoming “Leaders for the Global Common Good.” In July 2010, Dean Testy announced that the law school will sharpen
its focus on leadership and career development through the formation of the Center
for Career and Leadership Development.
The law school is creating ways to educate
its incoming class about leadership through
early assessment and strategic planning.
This includes adoption of a new tool
called the Strategic Leadership Capstone,
which serves to guide and direct law students through career and leadership roles.
It introduces students to leadership qualities, virtues, and career strategies. The “new
normal” for legal markets here and abroad
requires professionals with unique skills
and abilities to forge paths for social justice
and corporate development at warp speed.
It will become commonplace to lead and
work with diverse workforces, and inspire
teams of people to achieve results throughout the world. Possessing leadership skills
will be necessary for attorneys to succeed in
every endeavor of work, including finding a
satisfying career.
Job applicants who take the lead in
their career development, and are able to
convey their talents, drive, and interpersonal skills in ways that “click” with employers, are usually successful in getting
offers. In reaching out to employers and
taking initiative in a job search, job applicants demonstrate success traits. Many
times job applicants do not feel that they
are worthy to approach employers, yet
employers generally welcome people who
show an interest in them. The initial introduction, résumé, cover letter, thankyou note, e-mail, voicemail, conversations,
and interviews all demonstrate leadership
qualities and are a “signature” of the applicant. It takes leadership to develop strategies and plans, and to execute a vision and
plan for one’s career.
Today, the job you are looking for may
seem hidden. Many employers carefully
target recruiting efforts rather than openly
11
posting positions. A job seeker must be resourceful, tenacious, positive, and outgoing.
The new modus operandi is to “unearth a job”
through conversations and research. Leadership traits and behaviors such as being (or at
least appearing to be) integral, communicative, influential, and competent are essential
in the job search. Sometimes job seekers
find themselves discouraged and frustrated.
Changing the framework of thinking away
from negativity and toward positive affirmations can help job seekers move to action.
Potential employers are looking for positive
energy, and can discern when an applicant
is feeling down or depressed. When a job
Today, the job you
are looking for may
seem hidden. Many
employers carefully
target recruiting
efforts rather than
openly posting
positions.... The new
modus operandi is
to “unearth a job”
through conversations
and research.
seeker is struggling to stay positive, it is advisable to take a break, engage in exercise
such as group or individual sports, and then
return to the job search when energy is renewed.
Other important aspects of professional identity are one’s personal “brand” and
reputation. Why do people select certain
brands over others? It is often a perception
of the brand, its promise, and evidence of
quality performance. The same type of concept works with professional reputations: a
professional identity is created in actions
and achievements. A leader frequently possesses a strong professional identity and a
reputation for achieving results. In addition,
being gracious, influential, and positive are
also leadership qualities that can differentiate those who get called for job interviews
from those who do not. More and more often, new ways of screening candidates are
emerging based on informal referrals and
identifying potential candidates well before
a position is posted. The “let’s have coffee and talk” is a great way to meet people
and some use it as a means of pre-selecting
candidates. Even during informational interactions with potential employers, leaders possess a personal vision of their career
choices — and sometimes come across job
prospects that they did not actively seek.
What about the reluctant job seeker?
Those who say to themselves, “I’ve tried
that and it didn’t work.” An article on job
seeking would not be complete without
recognizing that some people have a hard
time finding a new job. Many stop after
one bad phone call or a few embarrassing
incidents. Remember, this is not an easy
process for everyone. For those without a
sense of what they want to do and those
who are reluctant to meet new people,
the job search becomes a sporadic effort
of diversion and delay. Sometimes weeks
go by and job seekers get distracted: the
family has a vacation, the children need
help with homework, and so on. These
are good reasons for a job search to be interrupted, but prolonged distraction can
kill a job search and make coming back
into it even more difficult. Some give up
after a few weeks. That’s when the selfcriticism and pessimism enter.
The best option when your job search
is getting you down: pick up the phone.
Talk to a potential employer. People frequently succeed in finding a job by talking to people about unadvertised openings.
People who have targeted a list of employers are successful when they talk to the
principals and find an opening that was not
advertised. Start talking to people, and take
one step at a time — follow a plan of action
that works. I have seen the most introverted
job seeker eventually excel at meeting people and conversing. One job seeker did not
want to cold-call anyone and after some
practice was able to get a job offer within
two months. Another job seeker moved to
a new state, did some cold-calling, and had
a job within a short period of time. Why
does the phone work? There is something
about hearing a person’s voice — instead of
just reading their correspondence — that
makes a difference.
Lastly, if you are spending 90 percent
of your time applying for jobs on the Internet, you are using the wrong method.
Online applications bring in limited or no
results unless you know about a job and
have a connection to it. Effective career
services offices will often refer students
and graduates to alumni who have a common interest. The UW law school’s Professional and Faculty Mentor Programs
help students make these kinds of connections. The program matches students’
interests with those of judges and attorneys. These types of mentoring programs
expand interpersonal relationships and
develop professionalism.
The next time you are thinking
about a new position, remind yourself
that you are the leader of your job search.
Exercise leadership in your search, unearth the job through interpersonal connections, and demonstrate your abilities
in all that you do. How you lead your
search will enable you to find opportunities and speaks volumes about the kind
of employee you will be. ◊
Naomi Sanchez, Ed.D., is the assistant dean
of the University of Washington School of Law
Center for Career and Leadership Development. She holds a doctorate in higher education administration, a master of social work,
and is a certified master coach. She has served
in senior executive positions in the public and
private sectors, and has worked as a director of
human resources. She has been with the law
school since 2004 and is a member of the Seattle Area Legal Recruiters Association. She has
presented on the topics of leadership, recruiting,
and professional development.
From Clerking to Practicing: What You Do (and
Don’t) Learn from Working for a Judge
by Thomas Holt
A
little more than a year ago, I finished
a two-year judicial clerkship and became a “real lawyer.” That is, I am
now a practicing advocate. After law
school, I sought out my clerkship for various reasons, but the two most important
were that I wanted to have a role in the judicial decision-making process early in my
career, and that I wanted the legal training
that I would get by clerking. In retrospect,
those were the same thing.
I consider that training to have been
invaluable. Most former clerks feel that
way. Most former clerks will also freely
admit the many things that they didn’t
learn about being a lawyer while working
for the judiciary — things that, to them,
can seem to place their former law-school
classmates far ahead when it comes to the
actual practice of law.
The truth is that both judicial clerk-
ships and sink-or-swim, right-out-oflaw-school lawyering teach critical lessons that every advocate needs to learn
eventually in order to be effective. But
those skills differ.
“Chaos Management” or the
“Monastery”? I need to preface with
(what else?) a disclaimer: judicial clerkships
are not identical. Indeed, I would go so far
as to say that every clerkship is distinct. The
first and most obvious reason that this is
so is because, as a judicial clerk, you work
for a judge — not the court system generally. And judges are individuals and lawyers,
with all the idiosyncrasies that those things
entail. The nature of any judicial clerk’s experience depends largely on the judge for
whom he or she works.
Second, different courts equal different clerkships. A former superior court
law clerk (also called bailiffs in our state)
12
once described her job to me as “chaos
management.” In contrast, a former U.S.
Court of Appeals clerk told me that,
while he was glad for the opportunity
to be a law clerk, he was also glad when
it was over because his job environment
was “too quiet — like a monastery.” That
was not exactly my experience, but I can
confirm that appellate clerkships fundamentally consist of “read, research, write,
repeat.” Another former state supreme
court clerk described his clerkship as
“basically working for a little publishing
house.” That also sounds familiar to me.
While clerkships are not interchangeable, most teach a specific set of core skills
in a very efficient way.
Exposure Equals Training. I have
personally analogized clerkships as “postdocs for lawyers” — referring to scientists who research under the supervision
of more senior scientists after receiving
their Ph.D.s. (I don’t know how my scientist friends feel about this characterization.) However clerkships are described,
though, they provide an intensive education in legal writing and analysis, as well
as a big confidence boost.
How could they not? Fundamentally,
the job of a law clerk — at least an appellate court clerk — is to read, analyze, and
critique legal briefs. The quality of those
briefs varies widely, from sublime to… not.
A clerk learns almost by osmosis which approaches are effective and, perhaps more
importantly, which are not.
Those lessons are quickly applied in
the form of advisory memoranda to the exact same judges deciding the issues raised
in the briefs. This has the salubrious effect
of also quickly improving a clerk’s legal
writing. No law clerk wants to be associated
with a brief that he or she knows for a fact
has not impressed the judicial decisionmaker. Moreover, judges tend to be skilled
and dedicated mentors when it comes to
legal writing.
Research and analysis also improve.
For me, this was at least partly fear-based
(but in a good way). Imagine this scenario:
you have helped draft a court opinion,
which has been signed by your judge, and
maybe two other judges (or maybe even
eight other judges). The opinion seems
to make sense and everyone is fine with
it. After it is published, it turns out that
the case fails to cite, or even mention, a
20-year-old case that decided precisely
the same issue, but which none of the advocates cited in their briefs. You also did
not find the case when you were doing
research for your judge. That 20-year-old
case? It reaches the exact opposite result
of the opinion your judge just signed. Can
you imagine that? You can if you are a law
clerk. And this leads to quick improvement in thoroughness and attention to
detail when it comes to research — skills
that stick around after leaving the court.
Finally, but not insignificantly, clerking
helps young lawyers to be more comfortable and confident around judges — to see
them as human beings, as well as the embodiment of the court. This is only natural.
In addition to being their employers, judges
are also the people law clerks interact with
every single day.
So, what don’t judicial clerkships teach?
Clerkships Don’t Teach “Facts.”
Another former state supreme court clerk
described working for a judge to me like
this: “In a lot of ways, it’s more like law
school than it is like being a lawyer. And
there is no class called ‘Facts’ in law school.”
If clerkships tend to teach legal research
and writing effectively, they certainly do
not teach something that is absolutely essential for every litigator to learn: how to
turn the messy process of discovery into a
well-documented narrative that explains to
the judge (and the jury) your client’s story
in a way that compels the right legal result.
Clerkships also do not teach the coping
strategies that people who jump directly
into a litigation practice learn right away.
For a law clerk, counsel for the litigants
has already done 95 percent of the work:
finding out what actually happened to precipitate the dispute between the parties.
There are myriad aspects to this, including
calling witnesses, conducting depositions,
reviewing documents, and drafting (and
following up on) discovery requests aimed
at getting the other side to provide information they do not want to give up.
This is what goes into creating the
factual record that law clerks blithely take
for granted, and which one way or another
makes up much, even most, of the actual
practice of litigation. Conducting legal research and writing legal briefs can seem
straightforward in comparison to the nuts
and bolts of actually prosecuting or defending a lawsuit.
This can be a rude awakening.
Whether they served in federal or state
courts, or trial or appellate courts, an
exceedingly common reaction from law
clerks newly engaged in actual legal
practice is chagrin at the arrogance that
they expressed from behind their judges’
robes. That is, law clerks often look at
the cold record lying before them and
wonder, “How could the lawyers in this
case have screwed up so badly?” The
answer immediately becomes apparent
to former clerks once their perspective
changes from one of luxurious hindsight
to the less-luxurious herding of clients,
organizing of messes, and placating of
harried partners — all while clever opposing counsel vigilantly ensures that
any screw-ups will be duly noted and
thoroughly addressed.
New litigators necessarily learn an entire set of skills for dealing with these demands. In that sense, former law clerks are
exactly like any new associate when they
enter the practice of law — they have to
develop those skills, too. This can seem to
be a significant disadvantage when former
law clerks compare themselves to their old
law-school classmates, who have probably
already cleared those particular hurdles and
have moved on to progressively more significant legal work.
A Matter of Emphasis. At bottom,
the difference in training between judicial
clerkships and the actual practice of law
is a matter of emphasis. Clerkships emphasize legal research and writing. On
the other hand, “practice” and “practicality” sound the same for a reason. People
who enter into advocacy straight out of
law school necessarily learn to stay afloat
— that is part of staying alive when you
jump right in. In order to be an effective
advocate, new lawyers need both of sets of
skills. How those skills are learned is not
as important as that they are learned. ◊
Tom Holt is an associate at Michael & Alexander PLLC, where he practices primarily in the
area of labor and employment law. He spent the
first two years of his career as a law clerk at the
Washington State Court of Appeals, Division I.
Have You Visited mywsba Yet?
To access mywsba, see the link on
the WSBA homepage (www.wsba.
org) or go there directly (www.mywsba.org).
Questions? Don’t have a valid e-mail address on file? Help is only
a phone call or e-mail away. The WSBA Service Center is available
Monday through Friday, 8:00 a.m. to 5:00 p.m., with friendly, knowledgeable representatives who are happy to help.
13
Small Claims Court: A Cost-Effective Setting
for Prompt Dispute Resolution
by John Davis
T
he longer I practice, the more evident
it becomes that litigation is often an
exercise for the rich alone. I am still
amazed when I read old cases involving tiny amounts — and many of those
disputes made it all the way to the Washington State Supreme Court. We now live
in a different world. Today many people
simply cannot afford to hire a lawyer,
much less engage in discovery and motion
practice. I find that I consistently turn
down about 50 percent of the potential
work that walks through my door, because
the legal fees will swallow up any “victory”
my potential client might achieve. But attorneys often forget to advise potential
clients of a venue designed specifically for
minor, simple disputes: small claims court.
From the outset, a lawyer recommending small claims court to a client or
potential client needs to be cautious: it is
not the best option for everyone. It requires the ability to speak clearly, cogently, and logically to a judge while in the
presence of an adversary. Research consistently shows that people rank the fear
of public speaking above the fear of death
— indicating that many should factor in
the anxiety associated with presenting a
case in small claims court before filing
in that venue. Small claims court also
requires the skills to investigate and organize documents and witnesses without
assistance. In many cases, it may be wise
to attempt to obtain or offer pro bono assistance to a potential client who is preparing for small claims court.
Despite the above considerations,
small claims court is an ideal option for
the right type of person and dispute. The
claim amount must be low — small claims
departments can hear disputes involving
damages requests only up to $5,000. But
to the average person, $5,000 is an enormous amount. Since small claims courts
are departments of district courts, they
also cannot hear actions involving title to
real property, mortgages or liens on real
property, and certain tort claims.
You need to be careful when advising
people to go to small claims court. Lawyers cannot appear in small claims court
Attorneys often
forget to advise
potential clients of
a venue designed
specifically for minor,
simple disputes:
small claims court.
nor “participate with the prosecution or
defense of litigation…without the consent
of the judicial officer hearing the case.”
RCW 12.40.080(1). It appears to be an
open question whether an attorney may
assist a claimant in preparing for the hearing. From an ethical standpoint, I am not
comfortable preparing documents, crafting arguments, or the like. However, when
a potential client walks through the door, I
am happy (and even feel obligated) to provide a fair assessment of their case. I also
recommend that they talk with witnesses,
draft a timeline of events, collect all written evidence (and organize it along with
a chronology), practice their arguments in
front of others, anticipate the other side’s
view, and sit in on other small claims hearings to learn what to expect.
Although small claims judgments can
be appealed to the superior court, appeal
14
rights are limited. No appeal is allowed if
the amount claimed is less than $250 (or,
if the claimant or counterclaimant appeals,
less than $1,000). An appeal must be filed
within 30 days of the entry of the small
claims judgment — an easy-to-miss deadline. And, most troubling, although the
appeal is de novo in theory, the transcript
of the small claims hearing is provided to
the reviewing judge, and many superior
courts do not allow the taking of additional evidence. In other words, an unwitting
party may severely prejudice himself down
the road if he presents a poor case in small
claims court.
Small claims court is an informal and
expeditious process for dispute resolution.
Each district court provides a claim form
and a brochure explaining the process. Filing fees are manageable — usually under
$40. Formal pleadings are not allowed.
Witnesses may be presented but are not
required. Judges are empowered to “give
judgment or make such orders as the judge
may deem to be right, just, and equitable
for the disposition of the controversy,” per
RCW 12.40.080(3). Parties can draft informal statements, present witnesses, argue their case, and have the judge dispense
common-sense justice. Although we like to
think the law is too complicated for the layperson to grasp, basic disputes are often just
that — basic, and easily decided after the
presentation of straightforward evidence.
For the right legal problem and the
right person, small claims court remains
a wonderful avenue for resolving disputes. Keep this in mind as you encounter the cash-poor, paper- (or principle-)
rich potential client who cannot afford
to hire you. ◊
John Davis is a graduate of Willamette Law
School. He is currently transitioning to McEwen Gisvold LLP in Portland, Oregon.
Davis focuses his practice in the areas of commercial litigation and general business. He
assists in litigation ranging from property
disputes to construction defects to insurance
matters, and transactional work involving
corporate, nonprofit, and municipal law.
Dollars and Sense:
A Business Valuation Primer
for the Practicing Lawyer
by Lisa Tran
T
he value of a business or business interest is a central issue in many types
of legal disputes. Many people are
surprised to discover that there can be
more than one “value” for a business asset,
depending on the purpose of the valuation.
This article provides an overview of commonly used definitions of value and the
various generally accepted business valuation approaches used by professional appraisers. It also offers some guidelines regarding how to identify a qualified business
appraiser, and describes situations where a
business appraiser can assist lawyers.
Introduction
History suggests that the business valuation industry originated in 1920, with the
advent of Prohibition and the U.S. government permitting affected enterprises
to receive tax breaks relating to the “damages” suffered. The estimated tax benefits
were based on the “intangible value” or
“goodwill” of the affected businesses. Prior
to Prohibition, it was commonly believed
that the value of a business was represented by the value of its tangible assets less
its liabilities. However, as we know today,
the assets of a business are represented by
a myriad of forms.
Definition of “Value”
There are many definitions of value, and the
purpose of the valuation usually determines
the appropriate definition. For example, in
a marital dissolution, there is no statutory
standard of value, while in a gift and estate
tax matter, the applicable standard of value
is fair market value.
Like experts in most other fields, valuation experts have their own vocabulary.
The word “value” means different things to
different people. Two common expressions
of value — “fair market value” and “fair
value” — are commonly found in U.S. statutes. In addition to fair market value and
fair value, two other common terms used by
financial experts are “investment value” and
“intrinsic value.”
Many people are
surprised to discover
that there can be
more than one “value”
for a business asset.
The following is a brief definition
of each standard of value. A standard of
value is a definition of the type of value
being sought.
• Fair market value is defined by the American Society of Appraisers as “the amount
at which property would change hands between a willing seller and a willing buyer
when neither is acting under compulsion
and when both have reasonable knowledge
of the relevant facts.” In the United States,
the most widely recognized and accepted
standard of value is fair market value. It is
the standard that applies to most federal
and state tax matters, such as gift and estate
taxes, and to income tax calculations.
• To understand what fair value means,
one must know the context of its use. In
most states, fair value is the statutory standard of value applicable in cases of dissenting shareholders’ appraisal rights. It is also
commonly used in valuations in state minority shareholder oppression cases. However, there is no clearly recognized consensus about the definition of fair value in the
context of dissenting shareholder statutes.
• In real estate terminology, investment
value is defined as “the specific value of an
investment to a particular investor or class
of investors based on individual investment
15
requirements, distinguished from market
value, which is impersonal and detached.”1
• Intrinsic value (sometimes called fundamental value) is a term most commonly
used by analysts of publicly traded stock.
In the analysis of stocks, intrinsic value is
generally considered the appropriate price
for a stock according to a security analyst
who has completed a fundamental analysis
of the company’s assets, earning power, and
other factors. It is important to note that
the concept of intrinsic value cannot be
entirely separated from the concept of fair
market value, since the actions of buyers
and sellers based on their specific perception of intrinsic value eventually lead to the
general consensus market value.
Generally Accepted Business
Valuation Approaches
The generally accepted business valuation approaches used by professional appraisers typically are grouped into three
broad categories. Within each of the
three approaches are methods that refer
to general ways of implementing the approaches. The following is a description
of each approach.
• Income approach: This approach recognizes that the current value of an investment is premised on the expected receipt
of the future economic benefits. Indications
of value are developed by discounting (or
capitalizing) future net cash flows available
for distribution to their present worth at a
rate that reflects both the current return requirements of the market and the risks inherent in the specific investment. Methods
classified in this approach include the discounted cash flow method and the capitalization of economic earnings (i.e., the normalized operating earnings of the subject
company) method.
• Asset approach: This approach is based
upon the economic principle of substitution. It is premised on the understanding
that an investor will pay no more for an asset (i.e., a business) than the cost to obtain
— either through purchase or construction
— an efficiently organized assemblage of
assets of equal utility. Typical methods classified in this approach include the asset accumulation method and capitalized excess
earnings method.
• Market approach: This approach is based
on the premise that the value of a company
is best estimated based on what astute and
rational capital market investors would pay
for the equity of that company resulting
from the analysis of acquisitions of similar
companies or ownership interests in similar,
publicly traded companies. Typical methods considered within the market approach
include the guideline publicly traded company method and the guideline merged and
acquired company method.
Business appraisers typically try to use
two or more appraisal methods to maximize the reliability of the final result. They
then assign different weights to each method based on consideration of the quantity
and quality of data supporting each method
to arrive at a concluded value.
Identifying a Qualified Business
Appraiser
Business appraisers can have a wide range
of backgrounds, often with experience in
the areas of finance, accounting, academia,
brokerage, and consulting. There are also
nationally recognized professional certifications in business valuation.
There are four professional organizations in the United States that award certifications in business valuation based on the
successful completion of various courses
and examinations, and the possession of
the required relevant experience in business
valuation. These include:
• The American Institute of Certified
Public Accountants (AICPA) awards the
Accredited in Business Valuation (ABV)
certification to active Certified Public Accountants (CPAs).
• The American Society of Appraisers
(ASA) awards the Accredited Senior Appraiser (ASA) designation.
• The Institute of Business Appraisers
(IBA) awards the Certified Business Appraiser (CBA) designation.
• The National Association of Certified
Valuation Analysts (NACVA) awards the
Certified Valuation Analyst (CVA) certification to CPAs.
The training and education offered by
these four organizations provide guidance
regarding the professional standards that
the business appraiser should adhere to and
the accepted methodologies that the appraiser can employ to complete a business
valuation assignment.
Specific Areas of Business
Appraiser Application
Lawyers can use business appraisers as
consulting or testifying experts in appropriate circumstances. The following
are a few examples of when lawyers can
benefit from working with a business
appraiser.
• Valuations for federal tax matters. There is
more definitive case law in the area of valuation for federal tax purposes than for any
other business valuation purpose. Federal
tax cases fall primarily into the following
five categories: estate taxes, gift taxes, ordinary income and capital gain taxes, charitable contributions, and transfer pricing. The
standard of value for all federal tax cases is
fair market value.
• Valuations for litigation matters (e.g.,
marital dissolution). Among jurisdictions, there is no consensus on the
definition of value in the valuation of a
business or practice for marital dissolution purposes. Another area of controversy in marital dissolutions is the concept of goodwill. Most states take one
of three positions with respect to goodwill: 1) all goodwill is a marital asset; 2)
only practice, or “enterprise,” goodwill
is a marital asset; and 3) goodwill is not
a marital asset.
• Valuation for ESOP purposes. An employee stock option plan (ESOP) is a qualified plan under Section 401 of the Internal
Revenue Code, and thus is subject to the
requirements of the Employee Retirement
Income Security Act of 1974 (ERISA).
Pursuant to the Tax Reform Act of 1986,
ESOP companies are required to have the
ESOP stock valued by an independent appraiser at least annually for stock acquired
after December 31, 1986.
Conclusion
The business appraisal profession has
matured considerably since its origination in the 1920s. The establishment of
major professional organizations in business valuation and the publication of
widely accepted professional standards
for appraisal (i.e., the Uniform Standards
of Professional Appraisal Practice, or USPAP) by The Appraisal Foundation provide guidelines to help lawyers who retain the services of business appraisers to
understand and evaluate appraisal work.
This will allow the lawyer to work more
effectively with the business appraiser as
an expert witness on the client’s side and
to better counter the appraiser retained
by the opposition. ◊
Notes
1. The Dictionary of Real Estate Appraisal, 4th ed. (Chicago: Appraisal Institute,
2002), p. 152.
Lisa Tran is a Portland-based manager with
Willamette Management Associates, a national business valuation, economic analysis, and
financial advisory services firm.
Join a WYLD Committee
New WYLD committee and program chairs
began their year of leadership October 1.
These chairs are building committees and
task forces to give input and plan WYLD
events.
To become involved in a committee, contact
the chair (listed on the back page of De Novo) or join the committee’s
list serve at www.wsba.org/lawyers/groups/wyld/committees.htm.
16
Building Your e-Discovery Toolkit
by Julie Anne Halter
I
n 2007, the “digital universe”
contained 281,000,000,000
gigabytes of data — roughly
45 gigabytes (or the paper
equivalent of 2.25 million pages)
for each person on the planet.
Commentators predict that by
2011, the digital universe will be
10 times the size it was in 2006.
And if you take a minute to
consider the last time you wrote
or received a hand-written
letter, used a pay phone, or
consulted a casebook to answer
a burning legal question, there
is no denying that the world has
evolved … and with it, litigation.
The much-needed 2006
amendments to the Federal Rules of Civil
Procedure include specific provisions to
address the explosion of electronically
stored information (ESI) and its major
impact on litigation. In general, e-discovery
encompasses litigation and regulatory
requests for, and production of, ESI. While
an assumed element of complex civil
litigation, the important role of e-discovery
in smaller civil and criminal cases is often
overlooked or ignored. But doing so
may unfortunately result in significant
negative consequences, including, perhaps
counterintuitively, increased expense and
unnecessary delay. And, of course, in more
extreme cases, doing so may result in
evidentiary, monetary, and sometimes caseending sanctions against litigants and their
counsel.
So, what’s the good news? E-discovery
doesn’t have to be an overly complicated,
time-consuming, or expensive endeavor.
As with many things in life and litigation,
two keys to success in e-discovery are
understanding and cooperation.
Recognizing ESI in Every Case
ESI is now at the center of our
communication culture. People create ESI
in many ways and store it in many locations.
Even in seemingly straightforward cases,
you must consider early on the forms
and locations of potentially relevant ESI.
Spend time getting to the heart of claims
and defenses at issue, and talk in detail
with your clients about possible sources
of ESI. For example, although at first
blush a slip-and-fall case may not seem
to implicate e-discovery issues, consider
sources such as surveillance tapes of the
fall, e-mail messages to family and friends
regarding the fall and its consequences,
electronic medical records, and comments
or photographs posted to social networking
sites as potential sources of critical
information that could lead to a quick and
efficient resolution for your client.
In larger, more complex litigation,
the implications of ESI may be more
obvious, but the same advice holds true. As
early as possible, litigants should work to
understand and identify potential sources
of relevant ESI. The hard work spent up
front to get ahead of these issues can help
to avoid unnecessary complications and
disputes later on.
The Rules as Your E-Discovery
Toolkit
Although the practice of law rarely offers
the opportunity to rely on easily identified,
widely explained, and (almost) always
applicable rules, the federal e-discovery
rules are a notable exception. At least in
federal court, FRCP 16, 26, 33, 34, 37,
and 45 govern e-discovery. Reading the
rules (and then reading them again) is a
must. Additionally, an often overlooked
and valuable supplement to the rules
is the Advisory Committee Notes that
accompany them. Reading those notes
(and then reading them again) will give you
a significant head start on addressing the
key e-discovery issues with your clients and
with opposing counsel during the initial
17
discovery conference called
for by Rule 26(f ).
Understanding the rules
and the obligations they create
provides an additional benefit:
it allows you to appropriately
scale your client’s discovery
efforts to the needs and
requirements of the case. For
example, under Rule 26(b)(2)
(C), a party may move to limit
the burden of their discovery
obligations for a number of
reasons. One option is to show
that the discovery requested is
“unreasonably cumulative or
duplicative, or can be obtained
from some other source that
is more convenient, less burdensome, or
less expensive.” A party may alternatively
demonstrate that “the burden or expense
of the proposed discovery outweighs the
likely benefit, considering the amount
in controversy, the parties’ resources, the
importance of the issues at stake in the
action, and the importance of the discovery
in resolving the issues.”
Additionally, Rule 26(b)(2)(B), which
applies only to ESI, provides that parties
need not, at least in the first instance,
produce ESI that is identified as “not
reasonably accessible because of undue
burden or cost.” Even with such a showing,
the responding party may still be required
to produce the ESI if the requesting party
demonstrates good cause. But how do
you know what might constitute good
cause? As luck would have it, the Advisory
Committee Notes identify seven factors
to consider. The Federal Rules and the
related notes are key elements of your
e-discovery toolkit.
The Inevitable Caveat: The Duty to
Preserve
But the rulebook alone doesn’t include
everything you need to complete your
e-discovery toolkit. Notably absent from
the Federal Rules is guidance regarding
a party’s obligation to preserve relevant
evidence once litigation is reasonably
anticipated. The duty to preserve derives
from the common law. The scope and
nature of that duty is, in large part, a factspecific inquiry. Nevertheless, recent case
law has articulated a number of principals
to guide litigants down the road to proper
preservation of ESI.
The duty to preserve is triggered
once a party reasonably anticipates
litigation, and includes the obligation
to preserve “unique, relevant evidence
that might be useful to an adversary.”
Once the preservation duty is triggered,
a party must communicate the nature and
scope of the obligation to custodians of
potentially relevant evidence in writing,
a process often referred to as issuing a
“legal hold.” But issuing a written legal
hold is not typically sufficient. Case
law indicates that litigants must take
appropriate steps to ensure that the legal
hold is implemented and to ensure that
custodians are reminded of their legalhold obligations as appropriate over the
life of the case. The failure to uphold any
aspect of the preservation obligation may
result in evidentiary, monetary, or even
case-ending sanctions.
Informed Cooperation: Putting Your
Understanding to Work
Cooperation is the touchstone of the
2006 amendments to the Federal Rules
regarding e-discovery, lauded as the key
to reducing or eliminating unnecessary
expense and delay. And there is broad
support for the premise that “[a]n attorney’s
zealous representation of a client is not
compromised by conducting discovery
in a cooperative manner.” Rather, early
and ongoing cooperation with opposing
counsel can result in efficient and effective
discovery where agreement can be reached
regarding the proper format of production,
the scope of the parties’ preservation
obligations, the format of the privilege log,
and other important topics. Perhaps most
importantly, early discussion of e-discovery
issues often provides a roadmap for how
discovery will proceed. This roadmap
allows the parties to develop a careful and
informed discovery strategy, including
early identification of the important issues
that may require judicial resolution.
Although good-faith cooperation
is an important component of efficient
e-discovery, it should not be a blind
substitute for informed, good-faith
advocacy. Take care to understand the
strategic and practical consequences of
any proposed cooperation agreement. Do
not be afraid to refuse or restructure a
proposal that is not in the best interests of
your client. In the case of In re Fannie Mae,
a third-party government agency entered
into a stipulated order with defendants
shortly before the court ruled on the
defendants’ motion to hold the agency in
contempt for failing to search its disasterrecovery backup tapes. The stipulated
order gave defendants sole discretion
to identify the search terms used in the
agency’s search. The defendants identified
more than 400 search terms, which
covered approximately 660,000 potentially
responsive documents to be reviewed.
Although the agency objected, the court
upheld the stipulated order and ordered
the agency to proceed with its review.
Ultimately, the agency spent roughly nine
percent of its annual budget to respond to
the subpoena, and was nonetheless held in
contempt for failing to timely produce a
privilege log.
Conclusion
Although the e-discovery challenges that
may arise in the course of litigation are
as numerous and varied as the cases and
litigants themselves, the core principles
of understanding and cooperation will
always apply. To be well-prepared to
address these challenges, “old school”
may be the best approach: grab a
highlighter, a pen and notepad, and your
Federal Rules book. A careful review of
the rules and committee notes will be
well worth the effort. ◊
Julie Anne Halter is a partner in the Seattle
office of K&L Gates, LLP. Her practice
includes general business litigation, and
(since 2001) managing large, documentintensive cases, specifically those involving
electronic discovery. As a litigation attorney,
Halter understands the important role that
proper document production methodologies
and management play in litigation. She is
a frequent author and speaker on electronicdiscovery issues. Visit the firm’s e-discovery
blog at www.ediscoverylaw.com.
Giving Is Receiving: Why I Do Pro Bono Work
by Brian M. Flock
W
hen a colleague asked me to write
this article, I jumped at the opportunity. It seemed like a far easier
assignment to provide a reflection
piece than to summarize a salient legal topic.
But I was so wrong. This article turned out
to be much more difficult than I had imagined, and involved some significant personal
reflection to answer a very simple question:
“Why do I give my time to pro bono?”
Perhaps the answer was in my background. I am the product of a Catholic
education tempered by my undergraduate
experience at Reed College. When you
combine a strong tradition of community
service with a strong tradition of community activism, it’s hard not to become a
perpetual volunteer. My need to give was
strengthened when I went to law school at
Georgetown, a university with a deep commitment to public service. In law school,
I gave time to the Innocence Project and
enrolled in a clinic to help indigent renters embroiled in landlord-tenant disputes.
With this background, perhaps it was inevitable that I would become involved
with pro bono as a lawyer. Certainly, I have
many colleagues with diverse backgrounds
who donate time to causes rooted deeply in
their own identities or activism. For me,
though, blaming it on my upbringing was
analytically unsatisfying, and left me feeling as though I had stopped at the water’s
edge instead of diving in. So I pressed on.
Perhaps the answer could be found
in my present, not my past. After all, as a
18
young lawyer who wants to become a trial
attorney, I seek out opportunities to develop my courtroom skills. If I couldn’t get
those opportunities with paying clients,
then pro bono presented the next best alternative. So I volunteered with the King
County Bar Association’s Housing Justice
Project, representing low-income tenants
in landlord-tenant matters. I got involved
with the Court Appointed Special Advocate (CASA) program, representing
guardians ad litem in family court. I even
represented a small nonprofit in a governance dispute, arguing and obtaining my
first contested temporary restraining order. Through these experiences I built an
arsenal of new skills — counseling clients,
making strategic decisions, settling cases,
and arguing in court. I also built confidence by learning from my own mistakes.
Ultimately, what motivates me to
keep doing pro bono is not skills development: it’s the people I’ve met, both clients
and other lawyers. I rarely get the same
sort of heartfelt “thank you” from a corporate client that I get from an indigent
tenant whom I’ve just helped with a housing problem. It’s also refreshing to meet
people who give you a new perspective on
the legal system — and who, quite frankly,
take you out of your comfort zone and insulated ways of thinking. The other lawyers I meet are just as interesting as my pro
bono clients. Working shoulder-to-shoulder with someone outside my own area of
practice makes me view problems in different ways. It has also introduced me to
a broad range of mentors and colleagues
in a diverse community of lawyers. Those
connections have been invaluable for me
as a young lawyer.
As a result of the people I’ve met,
I’ve become even more involved in pro
bono work and community service generally during the past few years. I’ve
been appointed to the WSBA Pro Bono
and Legal Aid Committee (PBLAC),
and have also gotten involved with my
county bar association’s Community Legal Services Committee. I’ve joined a
nonprofit board and even been elected
as an officer to that board.
Despite my full plate (which, of
course, includes working for my paying
clients), I still consistently donate more
than 50 hours of time to pro bono each
year. Regardless of “why,” I want everyone reading this article to do the same.
Right now the “why” may not be nearly
as important as the “who, when, what,
and how”:
• The “who” is each of us. We all need to
get involved.
• The “when” is right now. The current financial crisis means that there are even
more people out there who need our help
but can’t afford legal assistance.
• The “what” is doing something. Certainly,
the best and highest use of your time spent
on pro bono activities is representing the
indigent in whatever way you can and for
however much time you can give. If you
simply don’t want to get involved at that
level, then at least get involved with a local
bar association or nonprofit entity.
• The “how” is by contacting your county
or state bar association, pro bono service
providers in your area, or simply other
lawyers where you practice. If you aren’t
involved because you can’t find a way to
get involved, then call or e-mail a member
of PBLAC (such as myself ). If we can’t
connect you up with a pro bono opportunity in your area, we will find someone
who can.
Whether you give your time to support
a cause you are passionate about, donate
time to develop your own skills and knowledge, or just get involved because you enjoy
the experience, the take-home message is
to get involved. Once you start giving your
time, I guarantee you will find your own
reason to keep going. ◊
Brian Flock is an associate with Sebris Busto
James, where he represents employers in labor
and employment matters. Flock is also a member of the WSBA Pro Bono and Legal Aid
Committee, and regularly gives his time to the
King County Bar Association’s Housing Justice
Project. He can be reached at 425-450-3380
or at [email protected].
Washington Lawyers for the Arts Connects
Artistic and Legal Minds
by Jennifer Amanda Krebs
O
ne of the oldest legal services organizations in the state is also one of
Washington’s smallest. Since 1976,
Washington Lawyers for the Arts
(WLA) has been providing individual artists and arts organizations with access to free
and low-cost legal resources — services that
they can’t get from any other organization.
Operating from a loaned office with only
a part-time employee, WLA served more
than 500 artists through its legal clinics and
workshops in 2009 alone. Many of these
artists would have gone without legal representation in the absence of the efforts of volunteer attorneys, who contribute thousands
of hours of otherwise-billable time. WLA
interacts with artists primarily through three
programs: the arts legal clinics, CLE workshops, and referrals to local attorneys.
WLA operates an Arts Legal Clinic
twice a month in connection with Seattle
University School of Law’s clinical programs on campus, as well as in other locations throughout the year. At these clin-
ics, representatives of arts organizations
and artists of all types — such as writers,
painters, sculptors, actors, musicians, and
dancers — receive a half-hour of individual legal consultation for free (though a $20
donation is requested). Questions range
from what to do if a copyrighted image is
used on a website to how to retrieve works
of art that a gallery owner is improperly
keeping. Occasionally, artists need ongoing representation and are able to establish
relationships with attorneys they trust.
WLA requires attorneys to have three to
five years of practice before volunteering
for the clinics, so artists can receive advice
from experienced practitioners.
WLA also offers informative and affordable CLEs for attorneys in all areas of
practice, but particularly those who serve
artists. Because these workshops are offered
to artists as well, they have a practical perspective that is difficult to achieve at CLEs
at which legal issues are spoken about in
the abstract. Although many of the work-
19
shops focus on intellectual property issues,
WLA also offers seminars on tax, general
business, codes and regulations pertaining
to artists, and many other topics. WLA is
always on the lookout for ideas and speakers for these art-law workshops. WLA also
has a committee primarily composed of
new attorneys and law students who organize these events. If you are interested in
serving on the committee, you can contact
the WLA at the e-mail address below.
WLA is often contacted by artists in
need of consultation on a legal issue that is
not addressed by the legal clinics or workshops. Because of this need, WLA offers a
lawyer referral service that connects artists
with attorneys. Artists have unique legal
needs primarily pertaining to intellectual
property, but they also experience more
general legal problems such as tax, employment, and contract issues. Artists often do
not know where to turn when confronted
with a legal issue, and WLA’s referral service can point them in the right direction.
Although many of WLA’s referral attorneys offer pro bono or reduced-fee services
to artists, it is up to the individual attorney
to determine the terms of the representation. Being part of WLA’s lawyer referral
service is a benefit of WLA membership,
and newer or young attorneys are eligible
to receive these referrals provided certain
conditions are met. By becoming a WLA
member and participating in WLA’s lawyer
referral service, newer attorneys can achieve
a potential client base both for pro bono
and fee-based clients.
For young or newer attorneys, WLA
offers many opportunities for involvement. The arts legal clinic is staffed by
volunteer attorneys who have practiced in
their subject area for at least three years.
As long as an attorney has this experience,
he or she is eligible to participate in the
clinic, which provides practical experience
as well as the potential for business development. WLA seminars are also useful for
newer or young attorneys, both by providing affordable CLEs on a variety of topics,
and through the potential for newer attorneys to present at these seminars (provided
they have the requisite level of expertise).
This allows newer attorneys to develop
presentation skills while increasing their
visibility, and offers an opportunity for
them to acquire skills, confidence, and a
network that will benefit them throughout
their careers.
The active and diverse WLA Board
of Directors is planning to expand WLA’s
reach throughout the state. WLA’s website, www.thewla.org, is a resource for
Washington’s arts community regarding
legal issues. To further its visibility, WLA
recently launched its blog, “Spark,” and is
planning on enhancing the resources on
its website, such as referral resources and
commonly used forms, in the near future.
WLA is always interested in hearing from
attorneys with suggestions about WLA
programs, and staff members are happy to
discuss our various programs and opportunities for involvement. For more information about WLA, e-mail Executive Director Jennifer Krebs at director@thewla.
org or call 206-328-7053. ◊
Top: Washington young lawyer leaders
with former WYLD President and Seattle University School of Law professor
John McKay, as he is about to receive
the ABA Young Lawyers Division Fellows Award at the 2010 ABA Annual
Meeting in August.
Right: Outgoing WYLD Trustee
Michael Pellicciotti addresses the ABA
Young Lawyers Division assembly
during its 2010 annual meeting in San
Francisco. Pellicciotti advocated for
courts to differentiate between “error”
and “prosecutorial misconduct” when
reviewing conduct of prosecutors.
Below: Diana Young, in-house counsel
at F5 Networks, and Margaret Pak,
associate at Corr Cronin Baumgardner
and Preece LLP, enjoy the July sun at
the Fourth Annual Minority Bar Associations Picnic. (Photo by Keith Seo)
Jennifer Amanda Krebs is the executive director of Washington Lawyers for the Arts, and
was previously an associate attorney at Garvey Schubert Barer in Seattle for five years.
Prior to law school, Krebs was active in community media and nonprofit governance.
20
Practice Success 101
Minding Your Manners: Etiquette for a New Job
by Peter Roberts
E
ven though you may have had several
interviews with your future employer
before being hired, there is still uncertainty after you accept a new job
(for example, as an associate at a law firm).
This includes the uncertainty that the
employer has about you, as well as your
own uncertainty about the employer. Such
uncertainty is perfectly natural. Beginning
anything new is a learning experience for
all parties involved.
Here are some suggestions as you
prepare to assume your exciting new position (some etiquette-based, some simply practical):
On your first day, arrive 15 minutes
early. Chat briefly with the receptionist after identifying yourself and then sit down.
If the receptionist prolongs the chat, that is
okay. Do not prolong the chat yourself. Be
prepared to wait until the firm representative (human resources person, managing
partner, your legal assistant, or someone
else) comes for you. Try to be as relaxed as
possible and maintain a smile.
The firm should have an orientation
plan for you, unless you have previous experience working there as a summer associate or under contract. An orientation plan
often includes interactions with several
people to learn about the firm and its resources, policies, and procedures. It is only
a start in getting you accustomed to the
new office. You will continue to learn about
in-house procedures over a period of time.
Always ask what the procedure is before attempting anything new. For example, if you
are about to draft a motion, ask if there is a
master motion-template.
If you are simply shown to your office without an orientation, beware! You
will need to change gears and take active
steps to fulfill your need for information
about how to get along at your new place
of employment. This includes information about getting on the payroll, business cards, timesheets, after-hours staff
support, the computer system, fringe
benefits, using the telephone (including
the long-distance code), master forms,
and expense reimbursement, among
other things.
A very important task is to get to know
your legal assistant. Arrange quality time
(with minimal interruptions) for describing
your background and for asking the legal
assistant to share information about the
firm, its procedures, and its culture. Listen
carefully! Build mutual trust and respect.
Remember your legal assistant’s birthday
or service anniversary with a lunch at a nice
restaurant at your expense. Minimize conversations with others in front of your legal
assistant’s work area. It is a huge distraction
and is inconsiderate. Remember that your
legal assistant can come to your rescue in
many ways.
Learn how to delegate tasks to your
legal assistant. As a primary matter, ask
your legal assistant how he or she prefers
to communicate: by e-mail, in person, or by
other means. You may also want to instruct
him or her to avoid interrupting you at certain times, such as during telephone calls
with clients. To properly delegate a task to
an assistant:
• Describe the task in sufficient detail.
• Describe “why” the task is necessary (i.e., how it fits into the bigger picture).
• Identify tools and resources available to complete the task, if necessary.
• Provide a deadline for completion of
the task.
• Confirm that your assistant understands
what is expected of him or her.
• Request that you be notified immediately if there are obstacles to completion
or large delays; encourage questions.
• Request to be informed when the
task is completed — particularly when
the task includes communication with
outside parties.
Keep your office reasonably tidy.
Piles on the floor and loose papers on
the desk are warning signals to others
that you are not very organized, and this
disorder throws doubt on your work. It is
true that the offices of the partners often
have piles and loose papers, but remember that you are in the process of forming
first impressions.
Do not always work behind a closed
door. Keep the door open at least six
inches if you need privacy. Closed doors
signal not being approachable and/or a
21
wish to keep others away. When you do
need to close your door (say, for a conference call on a speakerphone) tell your legal assistant why you are closing the door
as a courtesy.
Leave the office at a reasonable hour
each day. Staying too late on a consistent
basis causes people to wonder: 1) do you
waste time during the day? and 2) do
you have a life? Be reasonably available
for lunch and for office social activities,
but do not feel obligated to participate in
everything.
Keep your supervisor informed of
your workload. Case review meetings are
the best time to discuss this issue. Do
not be shy. Once you establish yourself
as a “can-do” person, you will have much
more credibility when you indicate that
you cannot fit another project into the
requested timeframe. Ask for feedback
about your work but do so at appropriate times. The best time is when your supervisor is able to respond without other
distractions.
With respect to e-mail: Ask about
your supervisor’s e-mail preferences. You
may not be permitted to e-mail a client
until you have been introduced to the client. Learn to put passwords on PDFs and
other electronic document attachments to
help preserve confidentiality when you email them.
Continually develop your writing
skills. Be alert to opportunities to learn important business skills that a lawyer needs,
such as project management; running effective meetings; proper methods for business development; and understanding the
economic model of your law firm, public
and private financial markets and institutions, financial statements, basic statistical
analysis, and client industries.
Your initial experiences at your new
law firm will shape you as a lawyer for the
rest of your career. Develop the best habits
possible — and remember, your legal assistant can “save your bacon”! ◊
Peter Roberts is the practice management advisor with the WSBA Law Office Management Assistance Program (LOMAP). He can
be reached at 206-727-8237or peter@wsba.
org and www.lomap.org.
Meet the Trustees
The WSBA Young Lawyers Division welcomes the new trustees who were elected by members of the WYLD this
summer. Look for profiles of the four other new trustees in the December issue of De Novo.
Snohomish County
Robert Grant
King County
Scott Husbands
WYLD Trustees
Greater Spokane District
Robin Haynes
Term length: Three years
Elected by: WYLD members
in each district, or appointed by
the Board (at-large position)
Responsibilities:
• Establish vision for WYLD
programming and activities
• Build relationships within
their districts in order to represent the interests of young
lawyers and to engage members in WYLD programs
• Serve as liaisons to WYLD
committees
The 2009–10 Board of Trustees focused the division on
three priority areas: public
service/pro bono, transition to
practice, and member outreach
and leadership.
Do you have an idea or concern? Do you want to get more
involved in the WYLD? Contact
your district trustee – complete
listings can be found on page
23.
Cyrus Habib — At Large
Cyrus Habib, a first-year litigation associate at Perkins Coie in Seattle,
is both a lawyer and an arts enthusiast. He “can’t live without access to
music” — his current favorite album is Nora Jones’ latest, The Fallen —
and is a published photographer. He also
has literature degrees from both Columbia
and Oxford universities. Habib grew up in
the Pacific Northwest and plans on continuing to call this state home, despite a love for
traveling (his favorite vacation spot is Antigua,
Guatemala). As a student at Yale Law School,
Habib testified before Congress on potential
changes to U.S. currency, and managed a
judicial campaign in Washington state. He
also worked for Senators Cantwell and Clinton
as a college student. Despite his political-science background, if Habib
was not a lawyer he would “probably be an academic consultant, helping
high-school students apply to college and fulfill their dreams.” In keeping
with his commitment to diversity in the profession, Habib is a King County
civil rights commissioner. If he could change one thing about the law, he
would prohibit the use of the death penalty. Even with his professional
and academic accomplishments, he is most proud of his “ability to choose
good friends.”
22
Robert Grant — Snohomish County
A deputy prosecutor for Snohomish County, Robert Grant is no stranger to the courtroom. He joined the WSBA in
fall 2008, and began his professional career as a law clerk for Judge Kenneth Cowsert of the Snohomish County
Superior Court. Grant’s advice to aspiring trial attorneys: “Before you do a trial,
watch a trial. It is not like what they taught you in school.” He cannot put his
finger on why he became a lawyer, but he has no regrets about the decision.
“This is a great profession,” he observes. According to Grant, success in the
courtroom hinges on the amount of effort put in before presenting a client’s
case: “Failure to prepare is preparing to fail.” A Pacific Northwest devotee, Grant
enjoys hiking and vacationing in the Cascade Mountains. He is happiest when in
the woods with his wife of six years (his best friend) and their dog. He enjoys the
horror genre — watching “True Blood” on television and reading books by novelist Dean Koontz — and is a country music fan. He loves his job, especially the
“ability to seek justice and represent the people,” but if he had to give up practicing, he would consider farming. “Not that I would be good at it,” he admits, “but I really like driving tractors.”
Robin Haynes — Greater Spokane District
Robin Haynes is a commercial litigator with Reed & Giesa, P.S., in Spokane. She
has been a member of the WSBA since 2006. The career choice was a natural
one for Haynes, who (as one of four sisters) considers herself to be “a natural
born litigator.” Haynes is a “triple Zag,” having attended Gonzaga University as
an undergraduate, graduate, and law student. She attended high school in the
Spokane Valley. A sports fan, Haynes is an avid runner (her proudest achievement is running a half-marathon on a broken foot) and enjoys snowboarding.
She is addicted to coffee and her iPod, and recommends the Silversun Pickups,
a band she recently watched at a live show in Spokane. Haynes specializes in
“drafting well-crafted, slightly nasty demand letters,” but knows when to draw
the line: her pet peeve in the practice of law is a lack of professionalism and
courtesy. If she were not practicing law, Haynes would return to school to complete a Ph.D. in English Literature with the goal of teaching contemporary American literature. Though she is a
Spokane Valley “fixture,” Haynes is an advocate for change: she strongly believes that the government and lending
institutions should revamp lending programs for higher education to reflect the actual costs of attending school.
Scott Husbands — King County District
Scott Husbands practices law in downtown Seattle, providing general business advice to clients and litigationdefense services to government entities. A 2007 graduate of Gonzaga School of
Law, Husbands attended law school because he believed it would best equip him
with “the tools [he] needed to make a positive contribution to society.” He predicts
that the “spread of commerce and information” will bring instrumental changes to
the practice of law, such as client demand for “innovative billing practices.” Husbands advises young lawyers to take responsibility for their own ethical behavior:
“At the end of the day, no one will remember that a client or supervisor wanted
you to do something underhanded, they’ll just remember that you did something
underhanded.” He cautions law students against taking their classmates too seriously. “You will find yourself questioning you whether you are doing everything
you can based on what you hear others are doing,” he warns. If he had to give
up law, he would travel the world (if he had the money) or open up a beach-front
bar. Though he appreciates a dinner seat next to any good conversationalist,
he would most like to have a (posthumous) chat with Lyndon Johnson or Bobby Kennedy. Before he went to law
school, Husbands worked for six years as a paralegal and IT analyst, focusing on litigation support.
23
WYLD Committee and Program Chairs — 2010–2011
WYLD Committee for Diversity
Shanthi Raghu, Chair
[email protected]
WYLD Trial Advocacy Program
Mary Henderson, Chair
[email protected]
RaShelle Davis, Chair-elect
[email protected]
Naomi Otto, Chair-elect
[email protected]
WYLD Editorial Advisory Committee
Allison Peryea, Editor
[email protected]
WYLD Board of Trustees — 2010–2011
President
Kari Petrasek
[email protected]
President-Elect
Dainen Penta
[email protected]
Pierce County
Chris Maharry
[email protected]
WYLD YMCA Mock Trail
Sean Walsh, Chair
[email protected]
Immediate Past President
Julia Bahner
[email protected]
South Central District
Alma Zuniga
[email protected]
Matthew King, Associate Editor
[email protected]
Megan Valentine, Chair-elect
[email protected]
WYLD Bridging the Gap Committee
Stephanie Henderson, Chair
[email protected]
WYLD Youth and Law Forum
Allyssa Wickstrom, Chair
[email protected]
Greater Olympia District
Grace O’Connor
grace.o’[email protected]
Southeast District
Nanette Blackburn
[email protected]
Erika Nusser, Chair-elect
[email protected]
Greater Spokane District
Robin Haynes
[email protected]
Southwest District
Daniel Gasperino
[email protected]
Sarah Lysons, Chair-elect
[email protected]
WYLD Continuing Legal Education
Ritee Parikh, Chair
[email protected]
WYLD Public Service/Pro Bono
Christina Wong, Chair
[email protected]
King County (A)
Megan Vogel
[email protected]
At-Large Trustee
Cyrus Habib
[email protected]
Doug Reiser, Chair-elect
[email protected]
Ben Nivison, Chair-elect
[email protected]
King County (B)
Scott Husbands
[email protected]
Gonzaga University Trustee
Tatiana David
[email protected]
WYLD Member Outreach
Kristy Stell, Chair
[email protected]
WYLD Yakima Pre-law
Conference
Alma Zuniga, Chair
[email protected]
King County (C)
Manish Borde
[email protected]
Seattle University Trustee
Katelyn Gravelle
[email protected]
North Central District
Beth Bratton
[email protected]
Northwest District
Marie Gallagher
[email protected]
University of Washington Trustee
Dan Velloth
[email protected]
BOG Liaison
Carla C. Lee
[email protected]
Peninsula District
Elizabeth McCormack
[email protected]
WSBA Liaison
Brian Halcomb
[email protected]
Elizabeth Tellessen, Chair-elect
[email protected]
Justin Farmer, Social Co-chair
[email protected]
Michael O’Meara, Social Co-chair
[email protected]
Gabriel Ravel, Chair-elect
[email protected]
The WYLD is a part of the
WSBA Education and
Outreach Department.
Snohomish District
Robert Grant
[email protected]
For detailed contact information, please visit www.wsba.org/lawyers/groups/wyld.
Editor • Allison Peryea
Associate Editor • Matthew King
Desktop Publisher • Stephanie Perry
Past Editors • Jamila Johnson, 2009-10 • Cynthia
B. Jones, 2008-09 • Shelley Ajax, 2007-08 • Jason T. Vail, 2005-07 • Eric B.
Martin, 2004-05 • Jeannie Huddleston, 2002-03 • David Berger, 2000-01
• Geoffrey Hymans, 1999-2000 • Evan Loeffler, 1995-99 • Erin Moore,
1993-95 • Todd De Groff, 1991-93 • Steve Robinson, 1989-91 • Scott
Jackson, 1987-89
De Novo Mission Statement
De Novo is published for the young lawyers of the Washington State Bar
Association. Its general mission is to provide a forum for the exchange of
ideas, information, and commentary, and to encourage discussion amongst the
readership regarding the broad experience of young lawyers. De Novo additionally serves as a vehicle to facilitate the dissemination of information regarding
member services, public service, programs, and activities of the Young Lawyers
Division.
Readers are invited to submit correspondence and articles. They may be
sent via e-mail to [email protected]. By submitting articles, the author licenses
24
De Novo to publish and permit reprints of the author’s article at the sole
discretion of the editor. The editor reserves the right to edit articles and
correspondence as deemed appropriate.
Reproduction is expressly prohibited unless written permission is
given by the editor. Unsolicited submissions may be sent; they may not
be acknowledged or returned to the author. All photographs submitted
with articles become the property of De Novo and will not be returned
except by special arrangement.
All editorial material, including editorial comment, appearing herein
represents the views of the respective authors and does not necessarily
carry the endorsement of the Washington State Bar Association or the
Washington Young Lawyers Division. Likewise, the publication of any
advertisement is not to be construed as an endorsement of the product
or service offered unless it is specifically stated in the ad that there is
such approval or endorsement. The Washington State Bar Association,
Washington Young Lawyers Division, editors, authors, and contributors
do not make any express or implied warranties in regard to the use of any
substantive material printed in De Novo. Each attorney must rely on his
or her own legal knowledge and expertise in the practice of law.
© 2010 Young Lawyers Division • Washington State Bar Association • All rights reserved.