yW LD - Washington State Bar Association

Transcription

WyLD
FEBRUARY 2012
Washington State Bar Association
YOUNG LAWYERS DIVISION
Volume 26 • Issue 1
Don’t Settle for Less!
Use “Expected Value”
Methodology to Help
Determine a Lawsuit’s
Settlement Value
by Milt Reimers
S
ettlement negotiations are an important part of practicing law. The U.S.
Department of Justice has estimated
that 97 percent of civil lawsuits are
settled or dismissed prior to trial. In some
Washington jurisdictions, the local rules require the parties to hold a settlement conference prior to trial (as in Kitsap County),
and other jurisdictions allow either party
to compel a settlement conference prior to
trial (as in Island County.) Yet even with
such a high percentage of lawsuits settling
before a witness is ever called or the first
objection is made, there is little discussion
in law school about determining the settlement value of a lawsuit.
There are countless possible outcomes
to every lawsuit, and calculating settlement
value can be difficult. As a starting point,
though, lawyers should attempt to quantify
the possible outcomes of the lawsuit and
the probability of those outcomes in order
to help clients better understand the ways
in which the lawsuit may be resolved. This
can be a challenging and imperfect exercise,
but an important one for both the client
and the attorney.
In the early 1970s, Richard Posner
and William Landes analyzed settlement
through the lens of law and economics.
Posner and Landes suggested that a litigant should calculate the value (or cost, for
a defendant) of a lawsuit by multiplying the
possible damages by the probability of such
a result, while also taking into account the
transactional costs of litigation. The risks
and costs of litigating a case through trial
can open up a zone of bargaining within
which the result for each party will be better than that party’s expected result at trial.
An attorney can use “expected value” methodology to consider the various potential
outcomes of litigation and the probability
for each potential outcome. From there, an
attorney can calculate the expected value of
a claim and better understand the range of
most likely outcomes. In considering the
most likely potential outcomes, the expected value methodology gives credit for both
the best and worst outcomes from litigation
and each potential outcome is weighted according to the probability that it would be
the actual result. The total of all probabilities being assigned to each likely outcome
must total 100 percent.
It is also critical to factor in the poten-
In This Issue
1
Don’t Settle for Less! Use
“Expected Value” Methodology to
Help Determine a Lawsuit’s
Settlement Value
by Milt Reimers
3
Editor’s Column
by Claire Been
4
President’s Column
by Dainen N. Penta
6
Don’t Take it Personally:
High Conflict Personalities Don’t
Realize They’re Jerks
by Mercedes Riggs
7
The Cap on Attorney Fees:
A Primary Obstacle to Protecting
Prisoners’ Civil Rights
by Nathan Nanfelt
8
Memoirs of a Clerk: Unexpected
Lessons from My Clerkship
by Dana O’Day-Senior
10
Client Management for Newer
Attorneys
by Joel Matteson
11
Is It a Crime to Use Your iPhone?
by Mark H. Bardwell
13
The Low Down on “Low Bono”
by Jenny Anderson
14
Practice Makes Perfect: Five
Negotiation Practice Tips
by Jeanette Nyden
15
Practice Success 101
by Pete Roberts
16
Fun with Fonts: Tips for Using
Typefaces Effectively
by Sarah Kaltsounis
17
Putting the “Personal” Back in
“Personal Injury Lawyer”
by James Banks
19
Help: I Need an Expert!
by Maureen A. Howard
21
From Lawyer to Matchmaker:
Laura Henderson
by Scarlett Hunter
22
Member Spotlight:
Danan Margason
tial cost, in attorneys’ fees and costs, to get
to the expected outcome. If it is going to
cost $100,000 in attorneys’ fees to reach a
probable jury verdict of $100,000, going to
trial doesn’t make a lot of sense for the client. In such a case, it’s probably a good idea
to settle early.
For example, suppose that a plaintiff
sues a defendant for $500,000 in damages.
Assume that litigating the case through
trial would cost the plaintiff and defendant
each $100,000 in attorneys’ fees, and that
an attorneys’ fee award is available to the
prevailing party. The attorney concludes
that the five most likely outcomes of the
litigation are:
1. Plaintiff is awarded full damages and
Possible Outcomes
Probability
$500,000
x .20
$600,000
$250,000
x .40
$0
($100,000)
x .10
x .20
Total Expected Value
x .10
fees — there is a 10 percent chance the
plaintiff will prevail outright and recover
$500,000 in damages and $100,000 in attorneys’ fees.
2. Plaintiff is awarded full damages (no
fees) — there is a 20 percent chance the
plaintiff will prevail on the claim and recover $500,000 in damages, but will not be
awarded any attorneys’ fees.
3. Plaintiff is awarded some damages —
there is a 40 percent chance the plaintiff
prevails on the claim, but is awarded only
approximately $250,000 in damages.
4. Defendant prevails — there is a 20
percent chance the defendant will defeat
the plaintiff ’s claim and zero damages are
awarded.
5. Defendant prevails
and is awarded fees —
Expected Value
there is a 10 percent
$60,000
chance the defendant
$100,000
will defeat the plain$100,000
tiff ’s claim and will also
recover $100,000 in at$0
torneys’ fees.
($10,000)
Considering the most
$250,000
probable results and ad-
justing them based on probability, the settlement value for the case is approximately
$250,000. Under each of these scenarios,
the parties must also consider the cost of attorneys’ fees for each party ($100,000) that
will be incurred if the case goes all the way
through trial. Taking into consideration the
cost of attorneys’ fees for the plaintiff and
the defendant, the “zone of bargaining” is
likely to be between $150,000–350,000.
Determining the expected value of a
lawsuit involves considerable subjectivity,
and can vary greatly depending on one’s
judgment, experience, and (most important) ability to “guesstimate.” While it is an
imperfect calculation, quantifying the possible outcomes and the settlement value of
a case can help the client decide on the best
strategy for resolving the case. ◊
Milt Reimers is an associate at Schwabe, Williamson
& Wyatt. His legal practice
covers commercial litigation,
real estate, and land use. He
can be reached at mreimers@
schwabe.com.
WSBA Membership Survey: Provide Feedback on Your Profession
WSBA is working to better understand the complex challenges and opportunities facing our members. In order
to do this, we are conducting a study that looks at position transitions, job satisfaction, and other factors that
characterize Washington lawyers’ experiences. We have commissioned Areté Resources PLLC, a professional
research and evaluation firm, to conduct a three-part study of the membership over the next two months.
1. Randomized-participation survey
On January 5, an invitation was sent to randomly selected members asking them to complete the membership survey. The invitation was sent by email or by U.S. mail. Areté is
handling all aspects of this survey in order to ensure the confidentiality of your responses.
2. Open-participation survey
By its nature, only a limited number of participants were invited to complete the randomized-participation survey. However, on February 6, Areté will open the survey for any
member who wishes to be heard. Please take advantage of this opportunity.
3. Online fora
During January and February, Areté Resources is facilitating several online fora, similar to focus groups. The fora are confidential, moderated conversations among WSBA
members, and will provide much needed in-depth information for the study. Each forum
will have approximately 10 participants who log into the conversation at their convenience over a period of 4-8
days. Themes include racial and ethnic minorities, sexual orientation, gender, parenting and caregiving, and
disabilities. If you identify with one of these topics and are interested in participating in a forum, email arete@
areteresources.com. Include your contact information and which theme you are interested in participating in.
2
De Novo | February 2012
Editor’s Column
Do Seasoned Lawyers Discriminate
Against Spring Chickens?
by Claire Been
I
look young. It’s a blessing and a curse.
I get carded all the time. People who
are with me get carded just because
they are with me. And I guess I look
young because, well, I am pretty young. The
phrase “I have been practicing longer than
you have been alive” has been jokingly bantered about on more occasions than I care
to count.
It didn’t really bother me until one
morning when I was volunteering at the
Housing Justice Project, a King County Bar
Association clinic for tenants facing eviction. I sat down with my first client of the
morning and began to ask her about her
situation. A few sentences in, she paused:
“How old are you? Are you even 30?” “No,”
I smiled. “I’m 27.” I asked her another question, shaking my annoyance off. A few more
sentences in, she stopped me again: “How
long have you been practicing law?” “A little
over a year,” I said. “But I’ve been working
with tenants at this clinic the whole time.”
Our conversation progressed, but I was
fuming inside. “Who does this lady think she
is? I’m so sorry your free lawyer is only 27.
Maybe it’d just be better to go it on your own,
with all your extensive legal experience, rather
than trust your fate to my measly three years
in law school, successful bar passage, and
one year practicing law.” I think I eventually
ended up negotiating an extended move-out
date for her, and our representation ended
on a positive note. But it left me with a bad
taste in my mouth. How many other clients,
opposing counsel, judges, and even my own
colleagues think the same thing, but are just
too polite to say it?
How do you handle being young and
inexperienced, besides simply practicing for
years and getting older? I don’t want to wait
that long! Should I be praying for grey hair
and wearing matronly suits to disguise my
youthfulness? That doesn’t feel like a good
solution, because you can’t really disguise a
youthful face. Well, I think there are some
strategies that can help.
1. Use strong rhetoric. Being articulate
and well-spoken goes a long way towards
coming across as more mature. Youthful
words such as “um” and “like” have to go.
Try to phase out words that seem emotional
like “feel,” “hope,” and “love.” Try to be less
ambivalent. If you are giving an answer to
a partner, try “I recommend” instead of
“maybe…” Speaking with more clarity and
conviction communicates confidence. Of
course, the most sophisticated language in
the world won’t help you if you speak quietly
to the floor. Tone of voice and body language
are huge in terms of conveying confidence.
Consider practicing or even taking a speech
class if this is an issue for you. We don’t want
to deal with our weaknesses, but these are
the skills that need the most attention.
2. Practice confidence. Being a young
lawyer can be scary because you don’t have a
lot of experience, yet the advice you are giving
can have a huge impact on your client’s case,
future, freedom, wallet, etc. It is personally
difficult for me to “fake it” and be confident
about something when I don’t know the answer. For me, confidence comes from being
very well prepared and well researched. It is
OK to make a recommendation but explain
why it is contingent on certain facts or further investigation. Both clients and partners
appreciate this more than someone who is
wishy-washy. It is also all right to say that you
don’t know the answer but will consider the
3
matter and get back to them. This straightforward response has saved me many times.
3. Be professional in your appearance. This is an awkward topic, but suffice
it to say, take a good hard look and be honest
about whether your appearance and dress is
professional. You don’t need to try to dress
like you are middle-aged, but your appearance should not detract from the professional
image you are trying so hard to cultivate. This
includes cultivating your online appearance.
You probably should switch that profile pic
from your Cabo trip to something with nice
scenery, or maybe you and your dog.
4. Add value. Ultimately, if you do a good
job and get good results for your clients, no
one will care how old you are. Work hard
to be good at your job, and professional respect will follow.
5. Be enthusiastic. I have found this to
be a huge asset. I actually like my job. I am
not yet jaded and bitter (although I’m already getting sick of the billable hour…).
As a young professional, energy and enthusiasm is an advantage. Your clients and
colleagues will appreciate your positive outlook and go-getter attitude.
6. Be proud of your story. Ultimately,
I have tried to embrace my youth as a positive factor. Instead of being ashamed of being a 27-year-old lawyer, I am proud of it.
It’s a challenging career path and I am glad
to have come as far as I have in a short time.
I have a long career ahead of me and I have
come to terms with the fact that right now
I won’t know how to do everything right.
Even 10-year or 20-year lawyers are constantly learning new things about the law,
advocacy, clients, and marketing.
Finally, if you are in private practice,
don’t forget your number-one asset: your
low, low billing rate! Your clients are getting excellent legal service at a bargain
rate. You are the least expensive attorney
on the block, so don’t let your clients or
potential clients forget it. ◊
Claire Been is the editor of De Novo and
an associate in the Seattle off ice of Schwabe,
Williamson & Wyatt. She can be reached at
[email protected].
President’s Column
Love is Professional Connections
Are in the Air
by Dainen N. Penta
W
ith Valentine’s Day
(or, as some like to call
it, VD) coming up, perhaps your thoughts have
turned to candy hearts, chocolate, the
color red, and a Valentine’s card and
flowers for your sweetheart. If not, then
maybe you need to get out of the office
more often! Anyhow, this time of year
is a great time to celebrate romance talk
about just how much networking is like
dating. Is “networking” a dirty word because we’re afraid of rejection?
It works like this: You meet someone
interesting at a CLE or mixer. There’s obviously some mutual interest, so you exchange cards and promise to get together
for a date lunch meeting. Will he call?
What does her email mean? At first you’re
nervous — I don’t really know this person
very well — but then you relax, and the
conversation starts to flow. Did you enjoy
law school? Yes, my softball team was amazing. What do you f ind most exciting about
your area of practice? Of course I’d love to
get together again. As you get to know
others, your connections strengthen and
grow. And our profession is strengthened
each time the world is made that much
smaller.
There are about as many reasons to
network as there are sayings printed on
those pastel candy hearts. If you are fresh
out of law school, you might be embarking
on a job hunt or looking for resources for
starting your own practice. If you are more
experienced, you may be seeking professional mentors or new clients. Either way,
take some time to think about what you
hope to get out of a networking relationship. Here are some tips and tricks on speed
dating networking.
Not every relationship is meant
to be. Realize that not every professional
relationship will work out, and that’s okay.
Maybe you have a lot in common, but
there’s just no “spark.” She’s a “rules” girl,
and you’re a self-proclaimed rebel. Or per-
haps you just don’t like piña coladas. Some
professional relationships will be best
suited to a particular purpose (such as substantive legal help), while others you meet
will, over time, become excellent mentors
and close friends. Focus on the quality of
the relationships you are building, not the
quantity of contacts.
Non-lawyers are people, too.
While it’s fun to network with people you
have something in common with, remember — non-lawyers don’t know as many
lawyers as lawyers do. Are you building
your practice? Beefing up business? You
cover the passion that inspired you to go
to law school. Our profession will be made
stronger through the power of our relationships, and the degree of interconnectedness
we seek.
Be yourself. Did you know that
more than 50 percent of lawyers are introverts? This is much higher than the
rate of the average population.1 If you
are an introvert, the more you network,
the easier networking events become. Are
you a working parent? Parents’ networking groups are out there for you — you
may be better suited to meeting other
working parents through group play
dates for your kids. Know yourself, play
to your strengths, and have fun along the
way. Life is too short to pretend to be
someone you aren’t.
I’m no millionaire matchmaker (I
only wish I could get paid to tell people
off ), yet one of the most enjoyable parts
of serving as a bar leader is connecting
new and young lawyers who might be a
good “match” and seeing those new relationships thrive. WYLD leaders are glad
to help you get connected. While developing a strategic approach to networking
can be time-consuming, it can also be fun,
and I have no doubt that you will find
your career enriched, and the time spent
to be worthwhile. Don’t forget to save
me the candy heart that says “SWAK.”
XOXO! ◊
offer valuable services that people need.
There is no time like the present to reconnect with friends, acquaintances, and others
from high school or college. You’ll also be
reminded that there is a world outside your
legal circle.
Free your mind and your heart
will follow. There’s that saying: you find
love when you’re least looking for it. The
professional contacts you make will continue to benefit you in sometimes surprising
ways. Networking can even help you redis-
Dainen Penta is the 2011-2012 WYLD
president, and likes piña coladas but not getting caught in the rain. He is not into yoga,
and some days has only half a brain. An associate with Condominium Law Group, PLLC
in Seattle, he welcomes your email at dainen.
[email protected].
4
Note
1. Larry Richard, The Lawyer Types, 79 A.B.A. J.
74, at 74 (April 1993) .
Open Letter to the WYLD Membership
Dear Washington Young Lawyers Division (WYLD) Members,
Many of you are aware of a referendum that proposes to reduce WSBA license fees from $450 for active members
to $325. You will receive a ballot on March 7, and we urge you to vote on this measure. As your representatives, we
understand and appreciate the many professional and personal challenges new and young lawyers face in this difficult
economy. It is with this understanding that we urge you to consider the significant negative impact a license fee reduction
would have on the many important statewide programs that connect you to our profession.
• The WYLD’s programs and initiatives are funded primarily through license fee revenue. Therefore, a reduction
in license fee revenue would mean significant cutbacks to WYLD programs and initiatives.
• WSBA member services such as LOMAP, Casemaker, and the Ethics Line may be reduced or eliminated.
• Licensing fees provide you with your license to practice law, and a significant portion of the fees are used to
ensure that our profession is well-regulated. A reduction in license fees could impact the efficiency and quality of the
licensing and discipline of lawyers in Washington, which could negatively impact the protection of the public and public
perception of lawyers and the legal profession.
• The WSBA Leadership Institute is in its eighth year serving WSBA members in their first 3–10 years in practice.
This nationally recognized, award-winning program provides important leadership training and development to new and
young lawyers, and could be negatively impacted by a reduction in license fees.
• A decrease in license fees could also weaken the impact and reach of programs such as statewide Moderate
Means, which began as a joint effort of the WYLD and the state Access to Justice Board. This landmark program
enhances access to justice across our state, and represents a fundamental revolution in the delivery of legal services and in
the public’s accessibility to legal assistance.
• Important pro bono and public-service projects could be affected, such as the Home Foreclosure Legal Aid
Project. A decrease in license fees would diminish the WSBA’s ability to organize and administer these programs, many of
which increase access to justice and help improve the public perception of lawyers.
The opportunities provided by the WYLD are more important than ever in this job market. The WYLD is
an integral part of helping transition you into the legal profession, connecting you to pro bono and public-service
opportunities, and providing opportunities for you to become a leader in your community. The WYLD plays a central
role in furthering the WSBA’s mission to “serve the public and the members of the Bar, ensure the integrity of the legal
profession, and to champion justice.”
As you consider the license fees reduction referendum, we hope that you will take the time to learn about these
outstanding programs and the many unique benefits that they provide to you, to other new and young lawyers, and the
public at large. We encourage you to educate yourself about how license fees are used and to contact the elected trustee in
your district with any questions.
As your representatives, we are committed to helping you understand how your money is spent and the many vital
programs that are reliant on funding from your license fees. You can find your elected trustee and that person’s contact
information at www.wsba.org/wyld, under “WYLD Leadership.” Thank you for your time, and please accept our best
wishes for a happy, healthy, and prosperous new year.
Very truly yours,
The WYLD Board of Trustees
5
Don’t Take It Personally:
High Conflict Personalities Don’t Realize
They’re Jerks
by Mercedes Riggs
W
e’ve all struggled with difficult
people who have high conflict
personalities. I can think of several
former clients and a past boss or
two who tended to lash out and try to shift
the blame when something happened that
they didn’t like. Recently, I spoke with Bill
Eddy of the High Conflict
Institute about high conflict
personalities (HCP) and
some methods to make interacting with them a little
easier.1
Characteristics of High
Conflict Personalities
Eddy describes a high conflict
personality as having four
characteristics: 1) “all or nothing” thinking; 2) an excessive
amount of emotions that
they haven’t managed; 3) an
excessive amount of extreme
behavior; and 4) a preoccupation with blaming others.
These characteristics are an
unchangeable part of their
personality. HCPs aren’t aware of their behavior; they think they do what’s normal and
necessary. HCPs believe that they do what
needs doing in a particular situation and that
the situation justifies their behavior. Meanwhile, people around them often perceive this
behavior as extreme and unjustified.
According to Eddy, there are other behaviors to watch out for when dealing with
HCPs. First, HCPs tend to lie more than
the average person. HCPs distort information and believe their distortions. Not
all HCPs are liars, and some may be obsessively honest. In general, though, Eddy
notes that HCPs tend to shade the truth
knowingly — so don’t take everything that
they say as accurate.
Second, watch out for cognitive distortions, which are extreme and inaccurate
negative thoughts, including all-or-nothing
thinking, jumping to conclusions, “mind
reading,” emotional reasoning, exaggerated
fears, and projection. For example, HCPs
project onto other people what they really
think and feel. If they say that the other
side lied and plans to leave town without
paying their bills, it may in fact be the HCP
who thinks that way.
Third, HCPs are also frequently guilty
of “splitting,” which is the tendency to see
other people as extremely good or extremely
bad. This view helps drive HCPs’ behavior,
including their work as attorneys. HCPs
tend to imagine that the other person did
awful things, when in fact they have not.
Since these cognitive distortions are unconscious, discerning what is true and what
is distorted may be extremely difficult. Trying to reason with an HCP may feel like
hitting your head against a wall.
Zealous Advocate vs. High Conflict
Attorney
There is a difference between a zealous advocate and a high conflict attorney. A zealous advocate turns his adversarial nature on
and off as needed, but high conflict counsel
can’t turn off this integral part of his personality. For example, a zealous advocate
emphasizes the opposing side’s bad behavior
in court, but can find common ground when
necessary, such as when trying to settle.
In contrast, high conflict counsel can’t
6
switch back and forth; they want to blame
the opposing side at all times. High conflict
counsel might do things like refuse to talk,
or slam down the phone and hang up on
the person they’ve been speaking with. High
conflict counsel might also avoid settlement
discussions, since they are constantly stuck
in the adversarial mindset.
Most communities and areas
of practice have about six or
eight lawyers who are HCP
and aren’t aware of it — they
think they are special; that
they are heroes. In reality,
these high conflict lawyers
just don’t have the ability to
negotiate and turn off the
adversarial part of their personality.
How to Deal with High
Conflict Personalities
According to Eddy, you can
calm high conflict personalities by giving them an
“E.A.R”: Empathy, Attention, and Respect.2 HCPs
need this, and giving someone empathy, attention, and respect does not cost anything.
Undoubtedly, there are times when you will
feel like strangling the HCP in your life, but
if you treat her with E.A.R, you will be able
to calm down. When dealing with HCPs,
Eddy says not to try to give them insight into
their own behavior, because it might make
them highly defensive. They just won’t get it.
Instead, swallow your pride and focus on your
relationship with the person, and getting the
best result from your interactions.
When it comes to high conflict clients,
Eddy recommends heeding advice that he
learned as a therapist — “Don’t work harder
than your clients.” You should also involve
your HCP clients in the decision-making
process, and allow them to choose from
various courses of action. First, you want to
educate your high conflict clients and explain things thoroughly. Next, you need to
find tasks for them. Furthermore, you should
talk to your high conflict clients about conDe Novo | February 2012
sequences of their behavior and decisions.
You should say in a non-threatening way,
“You may not realize it, but if you take this
course of action, you may look bad, and you
may lose.” Otherwise, if you don’t involve the
HCP in the work and the decision-making
process, they may blame you for the result.
The more you involve your clients in decision-making, the less they are likely to turn
on you when things go wrong.
Conclusion
As a young attorney, it is important to
consult with more experienced attorneys
regarding other techniques in managing
HCPs. It is also important to honestly assess
your own behavior to determine whether the
conflict is of your own making, rather than
the product of a high conflict personality.
Remember to tell yourself that you aren’t
responsible for their outcome and that, ultimately, you’re responsible only for doing
your job. You need to remember that it’s not
about you, and that the HCPs’ blaming behavior is part of their personality — they do
this to almost everyone they interact with.
Your approach to dealing with high
conflict personalities should be the same,
regardless of whether the person is an attorney or client, boss or subordinate. Although you might want to throttle someone with a high conflict personality, at the
end of the day you just need to remember
that it’s part of who they are and to not take
it personally. Using some of the techniques
discussed above can help you take a step
back from the HCP’s bad behavior and to
make real progress in your interactions. ◊
Mercedes Riggs lives in
Vancouver, WA, and recently
started her own practice. She
can be reached at [email protected].
Notes
1. Eddy is one of the co-founders of the High Conflict
Institute and was a therapist before he became an attorney. He developed the High Conflict Personality
Theory after dealing with years of high conflict disputes. His website, http://billeddyhighconflictinstitute.blogspot.com, has articles and other resources on
how to deal with high conflict personalities.
2. To learn more on calming HCPs down with
E.A.R., read Eddy’s article at http://ezinearticles.
com/?Calming-Upset-High-Conflict-People-WithEAR&id=5860266.
The Cap on Attorney Fees:
A Primary Obstacle to
Protecting Prisoners’
Civil Rights
by Nathan Nanfelt
S
ometimes good intentions are not
enough. A case in point: the Prison
Litigation Reform Act (PLRA).
Congress enacted the PLRA primarily in response to a growing number of
prisoner filings, which burdened an already
cash- and time-strapped judicial system.
However, the PLRA has not stemmed the
tide of frivolous filings as planned; rather, it
has created substantial obstacles for prisoner
litigants seeking to obtain legal representation. By capping attorney fees, the PLRA removes the financial incentive for attorneys to
take prisoner civil rights cases. Consequently,
in many instances, the courts — not attorneys
— manage prisoner civil rights cases, and
most prisoner litigants navigate the complex
court system without the benefit of an attorney. It doesn’t have to be this way.
The Problem
The PLRA allows an award of attorney
fees “[w]henever a monetary judgment is
awarded in [an action brought by a prisoner].”1 Attorney fees are capped at 150 percent of the monetary judgment awarded to
prisoners, which doesn’t amount to much
if, for instance, a prisoner is awarded only
nominal damages of a dollar.
Seeking to avoid this harsh result, several circuits, including the Ninth Circuit,
have interpreted the relevant statute to limit
attorney fees whenever only damages are
awarded. Under this interpretation, when
the court grants injunctive relief, it may
award reasonable attorney fees that are not
contingent upon any amount awarded to
the prevailing prisoner.2 However, even the
Ninth Circuit’s interpretation does not provide a legal basis for awarding reasonable
attorney fees in cases where no injunctive
relief is awarded. The effect of requiring an
award of damages or injunctive relief as a
pre-condition for an award of attorney fees
7
is that, pro bono cases notwithstanding, fewer attorneys take prisoner civil rights cases.
In addition to deterring attorneys from
taking prisoner cases, the PLRA cap on attorney fees also burdens courts. With fewer
attorneys getting involved in prisoner cases,
prisoners proceed pro se and are forced to rely
solely on the courts to process their claims.
Courts handle a large volume of prisoner cases and therefore require a large staff to cope
with the problem. The high ratio of frivolousto-meritorious cases exacerbates the problem.
In 2010, nearly one in three cases filed in the
Ninth Circuit was a prisoner civil rights case;
the vast majority did not settle or go to trial.3
As one justice commented, “It must prejudice
the occasional meritorious [prisoner] application to be buried in a flood of worthless ones.
He who must search a haystack for a needle
is likely to end up with the attitude that the
needle is not worth the search.”4
The Case for Eliminating the Cap on
Attorney Fees for Prisoner Cases
In many other areas of civil litigation, plaintiffs’ attorneys screen and manage cases,
weeding out frivolous ones before they are
ever filed. For instance, plaintiffs firms offer free consultations to potential clients as a
way of determining which cases have merit.
Attorneys compete for cases according to
their likelihood of success. Eliminating the
PLRA cap on attorney fees will bring back
the financial incentive, and attorneys will
compete to represent prisoners based on the
merits of the alleged civil rights violations.
Eliminating the PLRA cap on attorney
fees benefits courts as well. By replacing the
cap on fees with the usual attorney market
incentive structure, prisoner litigants can
focus on securing effective representation
rather than on attempting to litigate complex claims on their own. With potential
claims directed to attorneys rather than to
courts, attorneys can screen claims based on
their likelihood of success, which includes
refusing representation for frivolous claims.
The result: fewer court resources will be
expended on frivolous claims.
Most importantly, prisoners benefit from
eliminating the PLRA cap on attorney fees.
The benefits to prisoner litigants are obvious,
given that most cannot afford representation
and generally lack sufficient legal knowledge
or resources to successfully pursue their civil
rights claims. With the elimination of the
cap, attorneys will have a financial incentive
to provide prisoner litigants with quality representation, which improves prisoner litigants’
chances of success. Over time, the quality representation will hopefully help to deter future
civil rights violations and improve prison conditions because prisons will be more aware of
the consequences that stem from civil rights
violations.
Additionally, eliminating the PLRA
cap on attorney fees benefits attorneys,
because it allows attorneys to participate
in civil rights litigation with less financial
burden. No attorney wants to devote time
and resources to a case where only $1.50 in
attorney fees are awarded; this is a primary
reason that prisoner civil rights cases have
been largely relegated to pro bono work
rather than a primary practice area. Elimination of the cap on attorney fees restores
the financial incentive for attorneys to take
prisoner civil rights cases because attorneys
can be compensated on a contingency basis.
In summary, the PLRA cap on attorney
fees burdens an already over-tasked judicial
system, with few benefits to show for it. The
cap discourages attorneys from taking prisoner civil rights cases and deprives prisoner
litigants of legal counsel. Eliminating the
PLRA cap on attorney fees benefits prisoner
litigants, courts, and attorneys. Thus, the need
for legislative reform in this area is clear. We
can — and we should — do better. ◊
Memoirs of a Clerk:
Unexpected Lessons from
My Clerkship
by Dana O’Day-Senior
W
hen I heard De Novo was interested in an article on legal
writing from a law clerk’s
perspective, my immediate
reaction was along the lines of, “Great! I
can do that.” After all, I had just finished
a clerkship, and it involved a lot of writing.
Then I panicked, because clerkships are infinitely varied. I spent the first six months
of my clerkship wondering if I was doing
it “right,” only to slowly realize that everyone’s experience is different. My perspective is just one among many, but I hope I
can provide some useful insights into what
writing is like for law clerks and what a
clerkship teaches you. So, without further
ado, here are five unexpected legal-writing
lessons that I learned as a law clerk.
Subtlety Is Your Friend (Hyperbole Is
Your Enemy?)
On my first day, the judge handed me a
stack of his favorite books on writing and
gave me some of the best advice I have ever
received. As a law clerk, he said, it is important to show neutrality in my writing and
avoid presenting conclusions as if they were
obvious in order to avoid the impression of
bias. Instead, he suggested I discuss the arguments subtly, showing consideration for
all sides and building towards the conclu-
sion. Better to induce readers to reach the
same conclusion on their own than to tell
them what to think and demand that they
agree. He hinted that taking this balanced
approach as an advocate would make me a
more persuasive writer when it was my turn
to try to convince a judge.
I am still trying to master the art of
writing that convincing, subtle argument,
but as a law clerk I saw its merits on a
daily basis. It is very easy for advocates to
get wrapped up in over-the-top arguments,
especially if opposing counsel is making
what (from your perspective) are hyperbolic, vitriolic assertions that misstate the
law and facts. Zealous advocacy seems to
require tearing down every ridiculous argument and countering it. But, for a law
clerk, there is nothing more exhausting
than reading page after page of exaggeration and overstatement, or arguments that
stretch the law or facts to the point that you
doubt everyone’s credibility. In contrast, the
rare, calm, well-reasoned arguments from
attorneys willing to recognize when their
opponents have a good point are a welcome
relief. These arguments make your job as a
law clerk more enjoyable, while making it
easier to believe a party’s positions. A happier, less skeptical law clerk translates to a
happier, less skeptical judge.
Law Clerk as Ghost-Writer
Being a law clerk is a lot like being a ghost
writer: Your writing may be published, but
under your judge’s name instead of your
own. You need to mesh your style with that
of your predecessors and contemporaries,
while bearing in mind that future clerks
will look to your work for examples. Learn
your judge’s style and preferences and adapt
accordingly. Following your clerkship, this
experience will speed your adaptation to
the different styles, tones, and preferences
of your new firm, nonprofit, or agency,
without losing your voice in the process.
Nathan Nanfelt is a 3L at Seattle University
School of Law. He can be reached at nanfeltn@
seattleu.edu.
Notes
1. 42 U.S.C. §1997e(2).
2. Dannenberg v. Valadez, 338 F.3d 1070, 1073 (9th
Cir. 2003).
3. “Civil Pro Se and Non-Pro Se Filings, by District,
During the 12-month Period Ending September 30,
2010,” available at U.S. Courts website: www.uscourts.
gov/uscourts/Statistics/JudicialBusiness/2010/tables/
S23Sep10.pdf.
4. Brown v. Allen, 344 U.S. 443, 537, 73 S.Ct. 397, 97
L.Ed. 469 (1953) ( Jackson, J., concurring).
Editorial Inspiration
Law clerks spend a lot of time editing. At
8
some point you will probably take a red pen
to almost every document produced in your
judge’s chambers, including your work, the
externs’ work, the judge’s work, and other
clerks’ writing. The editing process exposes
you to different approaches and solutions;
you’ll get ideas on how to make the same
point with greater clarity and succinctness
while also learning what not to do. Every
time I found a grammatical faux pas or
awkward sentence that made me cringe, I
would stop and remind myself to avoid it in
my own writing. At the same time, I took
cues from what worked and incorporated
that knowledge into my writing projects.
Your Audience Really Does Matter
As a law clerk, your audience and goals
differ from those of other attorneys; internalizing these goals will make you a better
advocate. Most lawyers worry about pleasing their clients or convincing a judge. As
a law clerk, you worry: Will the parties
understand? Am I leaving the judge open
to easy reversal? Is my writing succinct and
clear enough to retain the readers’ attention? Are the holding, key facts, and legal
principles easy to find, even if the reader
reads only the first few pages? These ques-
tions guide your writing and lead you to
view other types of legal writing in a different light. The same principles that make
a judicial or administrative decision effective and clear can be applied from the other
side — knowing what the judge needs to
make a decision and seeing how the judge
chooses to communicate it provides insight
into how to present that information to the
judge in the first place.
Knowing What Not to Do Is Half the
Battle
Law clerks pore over hundreds of documents as they work through a case. You
see some excellent work, a lot of mediocre
work, and some work that adds to the list
of “mistakes I swear I will never make as
an attorney.” Sometimes it is bad grammar,
sloppy editing, or misstatements of law or
fact that raise your hackles and make your
job more difficult. It probably goes without
saying that these errors can destroy a party’s
(or attorney’s) credibility with judges and
their clerks, but it bears repeating.
Law clerks have intimate familiarity
with the details of a case and need to present these details to the judge at a moment’s
notice. If an attorney gives the impression of
playing fast and loose with the facts or law
or takes obscure or novel interpretations and
presents them as a widely held truth, the
law clerk will be annoyed and will point out
every mistake and error to the judge. That
kind of sloppiness and attitude can make it
difficult to rule in favor of a party even if the
other side’s case is not particularly strong.
Seeing what not to do and knowing how a
judge may respond is another valuable lesson
I learned from my clerkship. ◊
Dana O’Day-Senior graduated from the University of California, Hastings
College of the Law in 2009.
She recently completed a
two-year clerkship with the
Honorable William Dorsey,
an administrative law
judge with the San Francisco office of the U.S. Department of Labor’s
Office of Administrative Law Judges, an administrative trial court that hears a variety of
employment-related cases brought under more
than 70 different statutes. O’Day-Senior resides in Seattle, where she is currently engaged
in a variety of pro bono activities.
WYLD Continues Partnership with YMCA Mock Trial Program
Would you like to be part of one of the nation’s highest ranked high school mock trial programs? Do you enjoy sharing your
knowledge of the law with young people? Are you interested in raising the standard for ethics and professionalism in the legal profession overall? Are you interested in increasing the ethnic and socio-economic diversity within the legal profession?
If you answered yes, the YMCA Mock Trial program is the place for you! Legal professionals are needed around
Washington to help coach high school Mock Trial teams and volunteer at state and local competitions. Don’t think you
have the time? Don’t worry! There is a volunteer opportunity that can fit into even the busiest of schedules.
• Team coaches work with teachers and fellow attorneys throughout the year to help students prepare their case
for competition.
• District raters score student performances during local competitions throughout the month of February.
• State raters score student performances at the state competition March 23–24 in Olympia. Register online at http://
bit.ly/zv79uv.
Finally, you can help spread the word about Mock Trial by letting your colleagues and friends know about this amazing
opportunity to support the democratic education of our state’s young people.
For the past 25 years, YMCA Mock Trial has been giving members of the legal community the opportunity to become
civically engaged in something that gives them inspiration and hope for the future of our state and the legal profession
as a whole. This year, your support is needed more than ever! New Mock Trial programs are starting up in schools
around Washington. In order for them to succeed, it is critical that the legal community steps up to meet the challenge.
For more information on how to get involved in the YMCA Mock Trial program, contact the YMCA Youth & Government
office at 360-357-3475 or email [email protected], or YMCA Mock Trial Partnership Chair Megan Valentine at
[email protected]. Donations may be sent to YMCA Youth & Government, PO Box 193, Olympia, WA 98507.
9
Client Management for Newer Attorneys
by Joel Matteson
Y
ou graduated from law school, passed
the bar, got your license to practice law
— now all you need are clients. After
all, serving clients is what practicing
law is about. Because clients are our raison
d’etre, the subject of client management is
important to all lawyers, particularly younger attorneys who have the least experience
with client management.
By “client management,” I mean the
manipulation (in the positive sense) of the
attorney-client relationship by the attorney,
with the goal of optimizing communication,
equipping the client and attorney with information needed to make informed decisions,
controlling expectations, and increasing client
satisfaction and awareness of lawyer services.
Communicate effectively. While
communication is the touchstone of any
relationship, it is especially important for
maintaining a productive and ethical attorney-client relationship. Nevertheless, the
number-one complaint clients have with
their attorneys is that they do not communicate enough.1
For lawyers, effective communication
with clients is an ethical requirement. Rule
of Professional Conduct (RPC) 1.4, which
relates to an attorney’s duty to communicate with clients, provides that attorneys
shall keep their clients up-to-date, answer
questions, provide information “to permit
the client to make informed decisions regarding the representation,” and consult
about the tactical means to accomplish the
client’s objectives. Furthermore, RPC 1.3
requires that attorneys diligently pursue
their clients’ cases, which is not possible
without proper communication.
Aside from these ethical considerations,
good communication builds trust and
confidence, which is essential to a healthy
attorney-client relationship. As an experienced Whatcom County attorney recently
explained, “If your client doesn’t completely
trust you, you cannot effectively represent
the client; you must either gain the client’s
trust or withdraw from the representation.”
To gain trust, attorneys must listen
more and speak less. Too many lawyers
live up to the stereotype of the person who
“loves to hear the sound of their own voice.”
However, the other side of communication
—listening — is equally important, if not
more important, than speaking. Long ago,
the Greek philosopher Epictetus said, “We
have two ears and one mouth so that we can
listen twice as much as we speak.” Attorneys
should follow this advice.
Proper communication enhances the
quality of representation by equipping lawyers with information they need to present
their clients’ claims in the most compelling
and accurate way. Before negotiating any
personal injury claim, I always provide clients with a draft of their settlement demand
(I was surprised how many attorneys don’t
do this). I then schedule an appointment
with the client to review the materials and
make sure they are complete. These steps go
a long way in preventing misunderstandings.
For example, while recently sharing a
proposed settlement package with a client,
he disclosed for the first time the most troubling part about the accident: Due to his injuries, he could no longer participate in martial arts. Before the accident, my client had
won numerous martial arts competitions and
had earned a black belt as the culmination of
his lifelong dedication to Tae Kwon Do. Yet,
despite previous conversations about how
the accident affected his life, my client never
mentioned martial arts until we reviewed his
proposed settlement brochure together. Taking this extra step to communicate helped
me increase the value of his case by making
this loss part of negotiations. Communication enhances the quality of representation.
Have a system. Practicing law can
be hectic and it is easy to lose track. Having a system will ensure that you are communicating properly with all of your clients
by documenting staff-client contacts and
scheduling periodic status conferences. To
prevent misunderstandings, keep a log of
every agreement, conversation, or recommendation between staff and client, adjuster,
or opposing counsel. To avoid having the
client “fall through the cracks,” one of the
first things I do after accepting a new case is
calendar periodic attorney-client meetings.
Set realistic expectations. A key
part of managing clients involves managing
expectations. If the client has unyielding
and unrealistic expectations, the attorney
should refuse the case. Once the attorney
accepts the case, the attorney must regularly gauge expectations and, when appropriate, align them with reality. The earlier this
happens, the better.
10
The best advice for managing expectations is “under-promise, over-deliver.”
Besides this, have frank and thorough discussions about the strengths and weaknesses
of the case, realistic timetables, possible outcomes, the litigation process, client goals, the
scope of the representation, involvement of
support staff, and fees and costs. Clients not
only need to know what is realistic, but why.
Maximize client satisfaction.
There is also a business side to client management that involves boosting referrals by
managing the client’s awareness of lawyer
services. Word-of-mouth referrals are a
lawyer’s primary source of business.2 As
business professionals, lawyers must manage their business in a way that engenders
referrals. Besides facilitating the exchange
of useful information, status updates are
wonderful opportunities to make your sales
pitch for future business by letting clients
know about your efforts. Your clients will
hire you again or refer others to you when
you regularly keep them posted regarding
the progress you are making and listen to
their needs and goals.
Effective communication is the key to
successful client management. Communicating with clients provides both attorney
and client with information needed to
make informed decisions, curbs unrealistic
expectations, improves the quality of representation, helps clients feel represented,
increases satisfaction, and boosts business
when former clients spread the word about
your great services. ◊
Joel Matteson is the associate editor of De Novo and
an associate at the Bellingham office of Tario &
Associates, P.S. He can be
reached at [email protected].
Notes
1. Stephen E. Schemenauer, What We’ve Got Here
. . . Is a Failure to Communicate: A Statistical Analysis of the Nation’s Most Common Ethical Complaint,
30 Hamline L. Rev. 629 (2007).
2. Debra Weiss, ABA Journal, How People Find
Lawyers, Referrals Are Popular, Blogs Not So Much,
Poll Finds. www.abajournal.com/news/article/
how_people_find_lawyers_referrals_are_popular_blogs_not_so_much_poll_finds/.
Is It a Crime to Use Your iPhone? Part I
by Mark H. Bardwell
Y
ou’re walking through
Westlake Plaza in
Seattle when you witness police officers arresting an Occupy Seattle
protestor. As an idealistic
young lawyer passionate
about civil rights, you pull
out your smartphone — after all, in 2012, who doesn’t
have a smartphone? From
several feet away, you proceed to capture video of the
arrest. As the officers finish
reading the protester his
Miranda Rights, one of the
officers turns his attention
to you and points to your
phone. “Are you recording this?” he asks,
visibly irritated. When you answer “Yes,” he
puts you in handcuffs, and confiscates your
smartphone as evidence.
“Wiretapping,” the officer says, “is a
crime.”
Wiretapping laws, as many attorneys
know, are a misnomer. They have little to
do with the physical telephone and telegraph wires that were the telecommunications norm when they were written. More
broadly, they are privacy laws, meant to
protect people from intrusions into their
private conversations. And increasingly, po-
One thing is becoming
clear: there is an
unfortunate disconnect
between the level of
consumer technology
available to the public
through iPhones, digital
cameras, and media
devices...and conduct
prohibited in the name
of privacy by decadesold laws drafted in
an era during which
today’s technology was
science fiction.
lice are using them to arrest citizens caught
monitoring officer behavior.
The scenario above is not just a hypothetical — a nearly identical arrest
happened in Massachusetts to attorney
Simon Glik, whose arrest resulted in the
recent case Glik v. Cunniffe.1 The police arrested Glik in Boston Common when he
openly recorded by cell phone the arrest of
a third party. Glik’s was but one of a rash
of recent cases to involve the recording of
police: the trial of Tiawanda Moore (subsequently acquitted),2 a Chicago woman
who recorded police intimidation; ACLU
v. Alvarez,3 a related case that the district
court dismissed, now pending in the Seventh Circuit; Sharp v. Baltimore City Police
Department,4 involving the recording of an
arrest at the Preakness Stakes; and Maryland v. Graber, in which the defendant motorcyclist recorded a traffic stop using his
helmet camera and uploaded the video to
YouTube5 most charges subsequently dismissed).6
One thing is becoming clear: there
is an unfortunate disconnect between the
level of consumer technology available to
the public through iPhones, digital cameras, and media devices (and the socially
acceptable standards for their use) and
conduct prohibited in the name of privacy
by decades-old laws drafted in an era during which today’s technology was science
fiction.
There are two ways to discuss this situ11
ation: as a matter of the law,
and as a matter of policy. In
this month’s De Novo, I focus on the legal analysis: are
wiretapping laws legal — or
are they unconstitutionally
over-broad?
The charges against Glik
were alternately dropped or
dismissed for lack of probable cause. But when Glik
brought federal suit under 42
U.S.C. § 1983 for the violations of his First and Fourth
Amendment rights, the officers moved to dismiss citing
qualified immunity for actions undertaken in their official capacity, “insofar as their conduct did
not violate clearly established statutory or
constitutional rights of which a reasonable
person would have known.”7
In a landmark decision, the First Circuit held that there could be no qualified
immunity for such an incident. Citing,
among other cases, Fordyce v. City of Seattle,8 the First Circuit wrote that the First
Amendment
[E]ncompasses a range of conduct
related to the gathering and dissemination of information…to prohibit
government from limiting the stock of
information from which members of
the public may draw…. The filming of
government officials engaged in their
duties in a public place, including police
officers performing their responsibilities, fits comfortably within these principles. Gathering information about
government officials in a form that can
readily be disseminated to others serves
a cardinal First Amendment interest in
protecting and promoting the free discussion of governmental affairs.9
The right to film, the First Circuit
went on to clarify, was subject to certain
time, place, and manner restrictions, but
the peaceful recording of an arrest in public
that did not interfere with the officers’ duties was not subject to limitation.10
The First Circuit also addressed Glik’s
Fourth Amendment claim that the police
lacked probable cause to arrest him. The
analysis hinged on state law, specifically
whether probable cause existed for a violation of the state’s wiretapping statute. Fortunately for Glik, the court found that his open
recording of the police, on its face, did not
fall within the “secret” recordings prohibited
by Massachusetts’ wiretapping laws.11
But what if it did? What if state law
actually were more restrictive?
In some states, it is. Indeed, Maryland,
Massachusetts, and Illinois have among
the most stringent and restrictive wiretapping laws in the country.12 The federal
government, 39 states, and the District of
Columbia each criminalize the audio recording of certain in-person conversations
if there is a reasonable expectation of privacy. (Additionally, Illinois criminalizes
non-consented recordings, regardless of
the recorded party’s expectations.) Among
the 39 states adopting the majority position, Washington’s wiretapping statute, the
Privacy Act,13 makes it “unlawful for any
individual…to intercept, or record any: …
[p]rivate conversation, by any device electronic or otherwise designed to record or
transmit such conversation regardless how
the device is powered or actuated without
first obtaining the consent of all the persons engaged in the conversation.”14 Under
another provision of Washington’s Privacy
Act, RCW 9.73.030(3), “consent shall be
considered obtained whenever one party
has announced to all other parties engaged
in the communication or conversation, in
any reasonably effective manner, that such
communication or conversation is about to
be recorded…” A violation of the Privacy
Act is criminal — a gross misdemeanor.15
Notably, Oregon does not adopt a reasonableness standard, although similarly to
Washington’s Privacy Act, its ban on recordings does not apply if the speakers are
“specifically informed” of the recording.16
Applying the law to our hypothetical
above, it appears that the arresting officer
may be mistaken: if the courts of the Ninth
Circuit accept the First Circuit’s rationale in
Glik, the prohibitions of Washington’s Privacy Act may be unconstitutional under the
First Amendment insofar as they involve a
peaceful audio/video recording of police
conduct in a public space, and there is notice of the recording. (Glik suggests that the
First Amendment allows recordings in these
circumstances even without notice.)
Unconstitutionality under the Fourth
Amendment is less clear, however. Fordyce,
the leading Ninth Circuit case, dealt with
Save the Date
The Snohomish County Young Lawyers Division is pleased to sponsor a
networking and social event at an Everett Silvertips hockey game vs. the
Seattle Thunderbirds, in Everett.
When: Friday, March 2 7:35 p.m.
Tickets: $15 — includes
entrance and reserved
seating with your young
lawyer colleagues (tickets must be purchased by
February 17).
Starting at 5:00 p.m., enjoy
food, drinks and pre-game
socializing at the Chopstix,
located at 2820 Oakes
Ave., just one block from the Everett Event Center (ask for the Young
Lawyers Group).
To buy tickets or for more information, please contact Kari Petrasek at
[email protected]. Tickets are available on a first-to-email-andpay, first-to-receive-the-tickets basis.
12
the arrest of a videographer covering a protest for local television, and the case left
open the possibility that the Privacy Act’s
misdemeanor penalties were constitutional,
as the court permitted the police to assert
qualified immunity.17 In answer to our hypothetical, it appears that you, young civil
rights lawyer, will probably avoid prosecution. You may even get your iPhone back.
But until you convince the Ninth Circuit
to adopt Glik, it could be a long time before
you see damages.
There’s far more to wiretapping than
a straightforward legal analysis. Today’s
technological landscape is changing at a
pace never seen before in history, and the
pace is accelerating. In De Novo’s June
issue, Part II of this article will consider
whether wiretapping laws are necessary —
and whether privacy protections are even
possible. ◊
Mark H. Bardwell is a presidential management fellow at the U.S. Department of Education in Washington, D.C. He can be reached at
[email protected].
Notes
1. Glik v. Cunniffe, 655 F.3d 78 (1st Cir. 2011).
2 . h t t p : / / a r t i c l e s . c h i c a g o t r i b u n e. c o m / 2 0 1 1 08-25/news/ct-met-eavesdropping-trial-0825-20110825_1_eavesdropping-law-policeofficers-law-enforcement.
3. www.aclu-il.org/aclu-v-alvarez/aclu-v-alvarez-casedocuments.
4. www.aclu-md.org/aPress/Press2011/complaint_
preakness.pdf.
5. www.youtube.com/watch?v=vTBuDIybwWw&no
redirect=1.
6. www.aclu-md.org/aPress/Press2010/Court_Opinion_092710.pdf.
7. Harlow v. Fitzgerald, 457 U.S. 800, 102 S. Ct. 2727,
73 L. Ed. 2d 396 (1982).
8. Fordyce v. City of Seattle, 55 F.3d 436, 439 (9th Cir.
1995).
9. Glik, 655 F.3d at 82 (citations omitted).
10. Id. at 84.
11. Id. at 86.
12. See generally ACLU v. Alverez, Appellant’s Brief,
at 6-7, n.2, available at www.aclu-il.org/wp-content/
uploads/2011/09/ACLU-v-Alvarez-appellant-brief4-15-11-w-strip.pdf (discussing the wiretapping
statutes statutes). See also Marianne F. Kies, Policing
The Police: Freedom of the Press, The Right to Privacy,
and Civilian Recordings of Police Activity, 80 Geo.
Wash. L. Rev. 274 (2011), available at http://groups.
law.gwu.edu/lr/articlepdf/80-1-Kies.pdf (providing a
scholarly analysis of wiretapping laws nationwide and
these states in particular as “the bad,” “the worse,” and
“the ugly”).
13. RCW § 9.73.010 et seq.
14. RCW 9.73.030(1)(b).
15. RCW 9.73.080(1).
16. Or. Stats. § 165.540(1)(c).
17. Fordyce, 55 F.3d at 440.
The Low Down on “Low Bono”
by Jenny Anderson
L
ow bono” is a bad name for a great
concept. The term is an obvious play
on “pro bono,” with the unintended
result of literally meaning “bad.” Far
from this literal meaning, I would argue that
“low bono” is merely a new and different type
of pro bono work. Contrary to popular misconception, “pro bono publico” simply means
“for the public good,”1 not “free legal services.”
Low bono work certainly is for the public good
because it dramatically expands access to justice.
Semantics aside, low bono is a relatively
new idea that is quickly gaining traction
in the current era of the “new normal,” as
heralded by the ABA.2 There is a growing
awareness that our justice system works the
way it’s supposed to only for the very wealthy
and an increasingly small number of the
very poor. The basic concept of low bono is
simple: providing services to low- to moderate-income individuals (generally, up to 400
percent of the federal poverty level, which is
about $90,000/year for a family of four) at a
reduced rate. In practice, this can mean options ranging from simply setting your hourly
rate low to creatively structuring flat fees to
offering affordable payment plans.
Some attorneys offer low bono legal
services based purely on income. Some
choose to offer low bono services to specific
clients, like veterans, seniors, or domestic
violence victims. The most common low
bono arrangement consists of some sort
of sliding-fee scale. The WSBA’s Moderate Means Program recommends a sliding
scale for referrals ranging from a 25 percent
fee reduction for clients earning up to 400
percent of the poverty level to a 75 percent
reduction for those earning 200 percent.3
Low Bono Provides Access to Justice
About 30 percent of Washingtonians fall
between 200 percent (usually the cutoff
for most civil legal aid programs) and 400
percent of the federal poverty level.4 This
income range represents those who may
benefit the most from moderate means
programs — working people who can afford to pay something for legal services but
cannot afford the going rate.
Additionally, only 12 percent of those
who qualify for legal aid are able to access it.5
According to the Washington Civil Legal
Needs Study, between 75–80 percent of low-
to moderate-income people have at least one
civil legal problem and between 40–55 percent
have more than four.6 Depending on the type
of case, low-income people go without legal
assistance for their civil legal issues between
70–97 percent of the time.7 These legal problems often involve matters that most would
consider basic needs, such as housing, employment, and entitlement to public benefits.
Why Low Bono?
Low bono arrangements are beneficial to
clients for obvious reasons, but why would an
attorney want to sell his or her services for less
than they’re worth? Most low bono attorneys
cite one (or, more often, both) of the following
reasons: to promote equal access to justice and
because it makes good business sense. One
attorney mentioned that, after the economic
downturn, she began to recognize that many
low bono clients are us: working for a living,
raising a family, with most of our wealth tied
up in assets that are suddenly worth less than
we owe on them. Another person reflected on
his experience of navigating the family law
system without an attorney.
I personally came to this work after
spending several years working in domestic
violence victim services and watching victims
struggle to secure basic needs, such as safety
for themselves and their children. There is
often an attorney on the other side in such
cases — a situation which is described in the
Civil Legal Needs Study as something that
can “‘grease the skids’…or operate as a travesty of justice.” Our legal system is simply not
set up to be navigated pro se. The ideal of the
adversarial justice system is the meeting of
equals before a neutral judge or jury, and this
is something that simply cannot be achieved
when so many are unrepresented.
Low Bono Benefits Attorneys
Low bono fee arrangements can also be
very economically beneficial for attorneys,
especially young attorneys who are trying
to establish a practice in an extremely competitive market. I think most of us would
agree that working for less is better than
not working at all. Simple math demonstrates that an attorney in his first few
years of practice can earn at least as much
in private practice doing low bono work
as he would working in a more traditional
13
public-interest position. The other reality of
the current job market is that many traditional
public-interest jobs have dried up due to lack
of funding, and new attorneys are facing unemployment (or underemployment).
Many attorneys have chosen to make low
bono part or all of their practice, and support for
the concept is growing. A new low bono practice group is being formed to share resources
and ideas for low bono practice across all areas
of law. The WSBA (in conjunction with the
state’s three law schools) recently launched its
Moderate Means Program, targeted to people
of moderate means throughout the state. Attorneys who sign up for the panel agree to take
low bono cases and are referred clients who are
pre-screened by specially trained law students.
All in all, low bono is clearly both “for the
public good,” increasing access to justice in our
communities, and in the economic interest of
many attorneys. Interested attorneys can sign
up for the WSBA Moderate Means Program
via mywsba.org or can contact the author at
[email protected] for more information
on the new low bono practice group. ◊
Jenny Anderson has a solo family law practice
focusing on complicated parenting cases in King
County. She serves low bono clients almost exclusively. She can be reached at [email protected].
Notes
1. www.merriam-webster.com.
2. www.abajournal.com/topic/the_new_normal.
3. www.wsba.org/Legal-Community/VolunteerOpportunities/Public-Service-Opportunities/ModerateMeans-Program/Moderate-Means-Program-Guidelines.
4. www.statehealthfacts.org.
5. Task Force on Civil Equal Justice Funding, Washington
State Supreme Court. “Washington Civil Legal Needs
Study” at page 23. September 2003. Available at www.courts.
wa.gov/newsinfo/content/taskforce/civillegalneeds.pdf.
6. Id.
7. Id. at 26.
Practice Makes Perfect:
Five Negotiation Practice Tips
by Jeanette Nyden
M
ost lawyers leave money on the table,
have unhappy clients, and reach unsatisfactory settlements because they
don’t plan for success with negotiation. If they do plan, they don’t prepare for the
back-and-forth process called negotiation.
Legal expertise is only one part of the art of
negotiation. This article gives you five tips to
better plan for all types of client negotiations.
1. Are your clients willing to negotiate?
How many of you have asked yourself this
question lately? How many of you don’t
care what the client’s response is? After all,
negotiating settlements is part of the process and you’ll be doing a lot of the talking
anyway, right?
You cannot force someone to negotiate. I know how frustrating it can be to
work with a client or an opponent who
refuses to negotiate. Most of those people
end up in mediation.
Assess your client’s willingness to negotiate by asking some open-ended questions.
The wisdom is in the question, not the answer. These questions are designed to get your
clients thinking in terms of give and take.
• “Is your issue, concern, problem, or objection more about X or Y?” For example,
if you were representing a father in a parenting dispute, you might ask the father if
his concern with his wife’s motion to relocate is more about not being able to see the
kids as often or about the additional cost to
travel to see the kids.
• “Paint a picture for me of what X is like
for you.” This question triggers the client’s
brain to visualize the situation and express
that visualization in words.
• “How does meeting the other party’s
needs prevent you from meeting your
needs?” This question really gets to the
heart of the matter. Most clients won’t negotiate because giving in to the other party
means they won’t get their needs met.
2. Are you creating a back-andforth environment? Clients look to their
lawyer to speak for them. Most clients want
their lawyers to do most, if not all, of the
talking. That’s what they’re paying us for.
Yet how many lawyers really take time to
consciously create a back-and-forth environment with their counterpart?
An amiable negotiation style should not
be relegated to “collaborative” attorneys and
overly aggressive negotiation styles should
be seen only on TV. In the real world, most
of what we do as advocates is solve people’s
problems using various negotiation techniques. Greater back-and-forth dialogue
during negotiation improves the chances of
obtaining great settlements. When I coach
attorneys on negotiation techniques, I am often surprised that many view negotiation as a
one-way conversation. I talk at you. Then you
talk at me. And so it goes.
The first step to creating a back-andforth environment is to choose the right
mindset. I like the definition espoused in
Getting Past No: Negotiating Your Way from
Confrontation to Cooperation: “Negotiation
is the back and forth communication aimed
at reaching agreement with others when
some of your interests are shared and some
are opposed.”1 To put this definition into
practice in the real world, we need to look
at the difference between a negotiation position and an interest.
A position is a stance that you take
at the bargaining table. It is the “what” at
the bargaining table. It answers the question, “What do we want?” Interests are the
“why” behind the “what.” Interests are what
cause you to take a position on your client’s
14
behalf. You need to identify your client’s
interests. Without a clear understanding
of their motivations, you cannot use their
leverage effectively, manage the other side’s
tactics, or overcome an impasse.
3. Do you have any realistic alternatives if you fail to reach an agreement?
What exactly is a Best Alternative to a Negotiated Agreement (BATNA)? I hear people
bandy that term about when they don’t really
have an alternative to negotiating an agreement with their counterpart. The word “best”
often obscures the point, which is identifying
and evaluating all of your alternatives against
the terms of a potential agreement. Clients
and attorneys alike somehow believe that a
BATNA is synonymous with a silver bullet, often claiming that they have a BATNA
without identifying any realistic alternatives,
let alone actually evaluating them against a
negotiated agreement.
A BATNA is a path to meeting your
client’s needs in a substantially similar or
better way than what an agreement will
provide. For an alternative to be realistic (or
better than negotiating an agreement), the
client will have to be satisfied that pursuing
the alternative is not only within reach, but
that at the end of the day, the client is in as
good of a position, if not better, than if he
comes to an agreement with his counterpart.
As a word of caution, do not allow your
client to tell you that “going to court” will get
them the same or better result. I was a trial
attorney for 10 years in Chicago. I lost cases
I should have won and won cases I should
have lost. It’s too much of a roll of the dice
to be a realistic alternative to negotiating an
agreement in all but the rarest cases.
4. Are you making trade-offs or
demanding concessions? I see a lot of
people demanding concessions from one
another and not really making trade-offs.
My personal experience as a trial attorney
gave me the impression that my clients
didn’t really want me to make trade-offs.
I was asked more than once, “Whose side
are you on?” I’m a quick learner and I was
solidly on my client’s side. No more suggestions about making trade-offs.
The problem with that thinking is that
trade-offs are a very effective method of
tailoring deals to meet both parties’ needs.
Without trade-offs, clients lose the ability
to tailor a settlement to meet their needs. It
is our job as their advocate to help clients
understand that negotiation gives them
greater control than a ruling or judgment.
Properly defined, a trade-off is something that you offer to the other party in
exchange for something of value in return.
Trade-offs are explicit intentions to barter
one thing for another. They can be either
tangible or intangible, and in many circumstances you and your client will have identified items in advance to use as trade-offs.
Concessions, on the other hand, are things
that your client gives without any expectation
of something received in return. Concessions
have a take-it-or-leave-it tone, while trade-offs
invite both parties to continue the conversation. Many clients (and their attorneys) simply demand too many concessions, and then
wonder why the other party digs his heels in!
5. Are you making winning counteroffers? Nothing taught me more about
making effective counteroffers than mediating hundreds of hours as a volunteer mediator.
Many people fail to prepare any counteroffer before entering a negotiation. When they
try to make a counter-proposal, it gets shot
down. The mediation clients would ask me,
“What happened? I was sure that the solution
I offered solved the problem.” Their solution
might have solved the problem, but the content, delivery, and timing were wrong. It is not
that they didn’t have the right answer; it’s that
they gave the right answer all wrong.
Good solutions get rejected because the
person proposing the solution fails to make it
clear how the solution will be mutually beneficial. Often, the receiver has in his mind a
specific, detailed solution and your solution
doesn’t meet the other’s criteria. Any change
to their offer —even if it makes things better — is not always recognized as a better solution. For this reason alone, many perfectly
good counteroffers are rejected. It is your job
as an advocate to present the counter-proposal in such a way as to signal to your counter-
part that your offer meets their needs. ◊
Jeanette Nyden works with mid-market com
panies who are frustrated with the results of their
contract negotiations. Nyden is a negotiation consultant, corporate trainer, professional mediator,
and business attorney. She has helped thousands
of negotiators improve their skill level, increase
their confidence, and plan for complex contractual
negotiations. Nyden is the author of Negotiation
Rules! A Practical Approach to Big Deal Negotiation, and the co-author of The Vested Outsourcing Manual. Nyden can be reached at 206330-2053 or [email protected].
Note
1. William Ury, Getting Past No: Negotiating Your Way
from Confrontation to Cooperation. New York: Bantam
Books, 1991.
Practice Success 101
Survival — Part I
by Pete Roberts
T
o succeed in the practice of law,
young lawyers must develop certain critical skills. The sooner
one can develop and apply these
skills, the better. Rather than guess what
these skills are, the Association of Legal
Administrators has already identified a
range of essential skills for new lawyers.
Developing these skills will help you survive your first few years of practice and
better serve your clients.1
A Curriculum
In 2001, the Association of Legal Administrators published Business Skills
Curriculum for Law Firm Associates. The
WSBA Law Office Management Assistance Program (LOMAP) has this material. The curriculum describes a series
of skills that new lawyers may need to
understand and apply in their everyday
practice. The book identifies 58 skills
that were discerned during a survey of
partners, legal administrators, and associates. The curriculum is designed to be
used in law firm training programs over
a period of seven years; solo practitioners
can also benefit from this resource.
The first 10 of these skills are:
1. Planning, organizing, and
managing one’s own time. Being organized is fundamental but need not be
a burden. Being a busy lawyer requires
paying attention to setting priorities,
properly delegating tasks, and limiting
procrastination.
2. Setting work priorities. In my
experience, when a partner asks for something without a deadline, it means “right
away.” To avoid misunderstandings, when
given any assignment, ask for the deadline
and the priority level, the client’s expectations, and the difficulty of the task(s).
Follow a policy to “under-promise and
over-deliver.” If you can, set the deadline further into the future to allow more
flexibility in case of an emergency. If you
complete the task sooner than the promised date, the client will appreciate that
you accomplished the task “earlier” than
expected.
3. Recognizing and solving
work crises. Work crises often include
15
excessive work volume or intellectual
roadblocks. The key to solving your work
crisis is to be proactive and seek assistance
as early as possible. Do not wait until the
last minute to address the crisis.
4. Thinking creatively. Thinking creatively involves connecting the
dots and identifying issues or factors that
others may have overlooked. The key to
thinking creatively is making sure you are
asking the right questions.
5. Identifying the firm’s resources to get work done efficiently. Ask and listen! Your legal assistant knows a lot about your firm. Does
your firm own niche software to help
generate certain forms? Does a paralegal
have a corner on developing databases?
Who is the go-to person in your firm
for electronic discovery or federal filing
questions? Does the firm have a robust
intranet with tutorials?
6. Keeping up with new information. Know the best sources and methods,
both human and electronic!
7. Gaining proficiency with computers: word processing, spreadDe Novo | February 2012
sheets, presentation programs. The
web is full of tutorials. First, go to http://
office.microsoft.com/en-us/support. LOMAP offers ongoing free technology classes. See www.lomap.org for the schedule.
8. Acquiring Internet skills for
non-legal research. Depending on
your practice area, free or low-cost industry-specific web resources may be available. Check with your firm’s law librarian.
9. Estimating assignment time
and budgets for one’s own work and
billing. Go to www.utbms.com for links
to codifications of what a lawyer’s tasks are.
For now, double any estimates of time that
you believe are reasonable until you gain
more experience.
10. Taking responsibility for a
case as though it were your own,
e.g., develop a case plan and review
it with the partner. Here is where you
can really impress the partners. Be creative
with strategies, priorities, need for resources, possible costs, and vulnerabilities
in the matter.
message that you are the person to handle
a particular matter. At LOMAP, we are
here to help. ◊
Future Practice Success 101 articles
in De Novo will describe the remaining
48 skills. These skills will set you apart,
give you confidence, and send the
Note
Peter Roberts is the practice management advisor with the WSBA Law Office Management Assistance Program (LOMAP). He can
be reached at 206-727-8237 or peter@wsba.
org and www.lomap.org. 1. See also “Lawyer Behavior for Survival and Elegance” by Tom Galbraith in Litigation, ABA Litigation Section Magazine, Vol. 35 No. 1 Fall 2006.
Fun with Fonts, Part I:
Tips for Using Typefaces Effectively
by Sarah Kaltsounis
O
ne of the many choices legal
writers make is to select the
font (also known as the typeface) for our writing. Though
this may seem like a minor concern, it is
worth our attention. The font we select and
the way we use it can enhance our efforts to
inform and persuade.
Use both serif and sans-serif fonts
strategically. Fonts can be classified in
several ways, but two categories lawyers
should know are serif and sans-serif. Serifs are little adornments at the end of the
“penstrokes” that make up each letter. A
sans-serif font lacks them (the French word
sans means “without”). You can easily spot
the difference between a formal-looking
serif font and the simpler, modern lines of a
sans-serif font:
Times New Roman is a serif font.
Arial is a sans-serif font.
Studies about the effect of these two
font categories on readers are ambiguous;
serifs may help our eyes move faster from
one letter or word to the next, but not by a
wide margin. In general, though, serif fonts
are typically used for body text in books
and magazines because they are considered
easier to read in blocks of dense print. By
contrast, sans-serif fonts are used on websites because they are commonly believed to
be easier to read on computer screens, and
they are also frequently used for titles and
headings in newspapers and magazines.
Most lawyers use serif fonts. But
legal writing professor Ruth Anne Robbins encourages us to consider using both
categories. In her article “Painting with
print: Incorporating concepts of typographic and layout design into the text of
legal writing documents,”1 she explains
that one of our goals as writers is to help
readers quickly understand the hierarchical relationship of one “chunk” of information to another. This means we must show
contrast between the different parts of our
documents; namely, the various portions
of our text and the headings that introduce them. Graphic designers create this
visual contrast by altering the way text appears in a heading versus the main body,
16
by putting headings in italics or bold or
by changing the heading’s font. Professor
Robbins recommends using a serif font for
the main body text because it may be easier to read in that context. She then recommends using a sans-serif font for headings.
Headings should stand out visually on the
page and be easy for a reader to quickly
skim, and sans-serif fonts may help further these goals. (You can see an example
of this technique right here on the pages
of De Novo!) Note that Washington’s Rule
of Appellate Procedure 10.4(a)(2) requires
the use of only one font in an appellate
brief, but you can try this technique in
state trial courts or federal trial and appellate courts in Washington; remember
to check local rules for restrictions.
Use proportional rather than monospaced fonts. Another way to categorize
fonts is by the amount of space each character uses. Back in the typewriter era, each
key took up the same amount of space in
the machine and the same width on the
page; these were known as monospaced
fonts. With the advent of computerized
word processors, we can now use proportional fonts, which vary each letter’s width
to improve readability. Thus, the main difference between these fonts is the amount
of space they consume. A line of monospaced type like Courier New fills substantially more room than the same words in a
proportional font like Garamond:
This line is formatted in
Courier New.
This line is formatted in Garamond.
For some reason, many lawyers
continue to use monospaced fonts even
though, as typographer (and lawyer) Matthew Butterick explains, “There are no
good reasons to use monospaced fonts. So
don’t.”2
When using a proportional font, include only one space after a period. If
you learned to type back in the typewriter
era, you probably learned to hit the space
bar twice after a period. And if you’re like
me, you continued this habit when you
eventually began using word processors.
But it’s time to retrain your fingers to use
only one space. Writers used two spaces
on a typewriter because those monospaced
characters made it difficult to see when
one sentence ended and another began.
The extra space gives eyes a place to pause
between sentences. When using a proportional font on a word processor, the font’s
design makes it easier to see punctuation
marks and spaces between sentences, so
the extra space after a period is no longer needed; instead, it creates annoying
clumps of white space called “rivers.”3
Take a look at any professionally printed
book or magazine; they all use one space.
Lawyers should, too.
Step away from Times New Roman
before somebody gets hurt. As lawyers,
we probably aren’t playing around with
the more exotic fonts that come installed
with our word processors; no judge wants
to read a brief presented in Jokerman. But
we must still choose deliberately among
the available options. Of the many serif
fonts we can select for a document’s main
body text, Times New Roman is the default most lawyers use. But there are good
reasons to try something new. First, Times
New Roman was developed by the Times
of London to work well when printed in
a newspaper. The punctuation marks are
small and the letters are thin, to fit more
words in per line and to account for the
fact that ink spreads when it hits newsprint. But on a computer screen or laserprinted document, Times New Roman
appears spindly and the periods and commas are nearly invisible. Second, it’s been
the default setting on word processors for
years and many readers are tired of it.4
Instead, choose a font designed to
work well in books: New Baskerville,
Book Antiqua, Calisto, Century, Century
Schoolbook, or Bookman Old Style are
great options.5 And if you really want your
documents to look polished, professional,
and readable, you might consider the new
font that typographer Matthew Butterick
designed especially for lawyers. This font,
called Equity, has very readable small caps
and italics features (for citations) and is
calibrated to print well on standard office
printers.6 ◊
Sarah Kaltsounis teaches
legal analysis, research, and
writing at the University of
Washington School of Law.
She can be reached at [email protected].
Notes
1. Ruth Anne Robbins, “Painting with print: Incorporating concepts of typographic and layout design into the
text of legal writing documents,” 2 J. ALWD 108 (2004),
available at www.alwd.org/LC&R/Archives/2004/Robbins.html.
2. Matthew Butterick, Typography for Lawyers, available at www.typographyforlawyers.com/?page_id=1348.
Actually, he’s not completely correct: monospaced type
is harder to read and forces you to slow down, so it can
be useful when editing. It’s also widely used by computer
programmers who need to comb through the punctuation marks that matter a great deal in programming
languages. But neither of those reasons supports using
monospaced type on the final printed pages we present
to our legal readers.
3. You can see examples of paragraphs formatted with one
space or two, in both proportional and monospaced fonts,
at www.typographyforlawyers.com/?page_id=1325.
4. For background about Times New Roman, see www.
typographyforlawyers.com/?page_id=1411.
5. These fonts are recommended by the U.S. Court of
Appeals for the Seventh Circuit: www.ca7.uscourts.gov/
Rules/type.pdf at 5.
6. You can learn more about Equity at www.typographyforlawyers.com/?page_id=3047.
Putting the “Personal” Back in
“Personal Injury Lawyer”
by James Banks
P
rotecting the community. Enforcing
safety rules. Holding wrongdoers
accountable. Fighting for justice: the
life of a personal injury lawyer.
As a new lawyer, accepting the
responsibility of helping injured people
is gratifying: we uphold the values of
the community and make a difference in
people’s lives. This article chronicles a few
experiences and lessons I’ve encountered
as a new personal injury lawyer.
What We Are up Against
In today’s economic and legal climate,
obtaining fair compensation for people
injured by the wrongful conduct of others
requires many skills not taught in law
school. Personal injury lawyers need to
understand how and why ordinary people
make decisions. For decades, citizens (our
jury pool) have been “tainted” by a media
blitz that has created a bias against injured
people who are forced to sue because
the insurance company won’t pay fair
compensation.
Insurance companies are tight-fisted
with settlement money. The latest tactic
by big insurance companies is to force
injured people to either accept far less than
fair compensation or file a lawsuit. Thus,
personal injury lawyers must prepare every
part of the case with the mindset of going
to trial. Because personal injury attorneys
go to trial often, they must be passionate
17
about trial practice.
Personal injury lawyers face a
formidable opponent. Insurance company
lawyers are highly skilled. They are more
experienced and better financed by rich
and powerful corporations. They have
one job: to defeat us. Thus, new personal
injury lawyers must never underestimate
the forces we are up against. This fight is
a battle of David v. Goliath. But the most
powerful army does not always win.
Getting to Know Your Clients
Representing injured people at trial
requires skillful advocacy. People put
their life and well-being in your hands.
It is up to you, as their lawyer, to obtain
money damages for medical expenses,
lost earnings, and the critically important
“human” damages also known as general
damages. As a trial lawyer, your job is to
show 12 members of the jury that the
defendant must be held accountable and
that your client is entitled to a certain
amount of compensation.
Successful personal injury lawyers
understand the emotional content of
their clients’ injuries. They know how
to humanize their clients to the jury.
The story of the case is not just about a
person who was injured in a car crash and
suffered damages. When our clients suffer
a physical injury at the hands of another
person, there is more to the injury than
just physical pain. This understanding
begins with learning about the client
and developing a relationship based on
security and trust. This allows the client to
share his feelings and experiences with the
jury in a way that the jury can relate to.
Yes, we are lawyers, but we are
people first. We are real people, with
real feelings and real emotions, and
we represent ordinary folks who have
suffered a traumatic event in their lives.
Law school taught us that reasoning and
logic win cases. But people often make
decisions first based on how they feel,
and then rationalize their decision with
logic, like building a house and then
propping it up on stilts.
Before we meet with our clients, we
should reflect on the larger sociological
issues involved. We need to understand
that societal norms create barriers to
communication. For example, American
males are conditioned from a young age to
suppress their feelings and shut down their
emotions. Asking a male client how the
injury makes him “feel” will likely elicit a
non-responsive answer because many men
feel uncomfortable expressing their feelings.
We also need to be sensitive to
cultural issues. I have more success
connecting on a gut level with ethnically
diverse clients when I’m aware of the
cultural issues at work. Only then am
I able to break down walls and get my
clients to express their true feelings
about how their injuries have affected
their lives. Everyone is uncomfortable on
some level expressing their feelings. Do
not expect clients to open up on the first
meeting. Rather, this process takes time.
Expect to spend several meetings, over
several hours, with your clients, especially
clients of diverse backgrounds, before
they open up and fully express how their
We don’t know our client’s story until we’ve
lived it and felt it within the deepest place of
our gut. This is the place where we learn the
details that make our client human and the
stories that resonate with a jury.
injuries have impacted their lives.
Techniques to Connect on a Deeper
Level
New lawyers should learn interviewing
techniques based on concepts employed
by psychologists, psychotherapists, and
psychodramatists. Meet your clients at
their home. It is not enough to merely
obtain the facts from your client as you sit
in your office asking questions from across
your desk. People are more comfortable
expressing their feelings in a safe,
comfortable place. Your client’s living room
is a perfect place to have a conversation.
Shed the attorney façade. Leave your suit
and tie at home. Look your client in the
eye. Be real. Be sincere. When your client
is done talking, let silence fill the room and
feel the connection.
Learn to use open-ended questions.
Open-ended questions require more than
a yes or no answer and generally begin
with, “who, what, when, where, why, or
how.” If your question doesn’t start with
one of these words, it’s probably not an
open-ended question. Use follow-up
statements like, “Tell me more about that,”
to keep the person talking.
An effective technique to get your
client to open up is “psychodrama.” This
technique involves reenacting scenes
from your client’s life. It is like a short,
spontaneous play. Rather than having your
client tell you what happened, have your
client show you. This gets your client into
the present tense by reliving the experience,
making his emotions more accessible.
When this occurs, we can get to the heart
of the emotions experienced by our client.
We should invest our time
meeting our clients’ family and friends,
accompanying clients on activities, and
experiencing how the injuries impact
their lives. We don’t learn our case by
spending time in the office pouring over
transcripts and medical records. We
learn our case by understanding how the
client experiences life with his injury,
and this can only be accomplished by
spending time with our clients outside
the office. We don’t know our client’s
18
story until we’ve lived it and felt it
within the deepest place of our gut. This
is the place where we learn the details
that make our client human and the
stories that resonate with a jury.
Credibility is necessary to be a
successful trial lawyer. Credibility
originates with feelings. To credibly tell
a jury about our client’s injuries and the
impact that these injuries have on his life,
we must feel what our clients feel. We
must experience the emotions that our
clients experience. Only then are we able
to tell our client’s story to a jury in a way
that will move them to award a verdict
that fairly compensates the client. ◊
James Banks is an associate
at Bishop Law Off ices,
P.S., in Seattle, where his
practice focuses exclusively
on representing people
injured by the wrongful
conduct of others. He can
be reached at james@
bishoplegal.com.
Apply to Serve on a
WSBA Committee,
Board, or Panel
The WSBA Board of Governors invites applications for appointments
to WSBA committees, boards, and
panels. Invest in your profession
and State Bar Association and
build connections with colleagues
throughout Washington.
Descriptions of each entity are
available at www.wsba.org/LegalCommunity/Committees-Boardsand-Other-Groups.
Submit your application online at
www.mywsba.org. Completed applications and materials must be
received by March 12, 2012.
Off the Record
Help: I Need an Expert!
by Maureen A. Howard
T
here comes a first time in every
trial lawyer’s career when she
takes a case that requires mastery
of scientific, technical, or other
“specialized” knowledge that transcends
her expertise. This occurs across all types
of cases, including personal injury, medical malpractice, intellectual property, construction, contracts, employment, environmental, property, and criminal law. When
a newly minted lawyer realizes that
an expert would be helpful — if
not critical — to her preparation
and presentation of the case at trial,
there can be a moment of panic
when she thinks, “How do I begin
to find the right expert?”
Timing of the search. The
need for an expert may arise before a lawsuit is even filed. Defense lawyers often hire an expert
soon after their client informs
them of a potential lawsuit. For
example, if the client is a construction company that suffered
a structure collapse on a project
site which killed three workers,
the company’s lawyer will try to
anticipate possible claims and
begin working with appropriate
experts (engineers, product designers, or geologic experts, for
example) to evaluate the client’s
exposure. For plaintiff ’s counsel,
the need for an expert might also
arise before filing the complaint,
although the client may have access to inside “experts” who can
sufficiently inform the lawyer
about the relevant issues to satisfy her
due diligence obligations under Civil
Rule 11. One benefit of soliciting an
expert’s advice before filing a complaint
is that the lawyer can test the viability
of the case by having the expert review
the unfiled complaint.
Find an expert. There are a few
helpful guidelines to consider when
searching for an expert: 1) learn enough
about the field to competently evaluate
both the particular types of experts you
need and the qualifications they must
have; 2) ask for advice and guidance from
respected members of the bar who are experts within their particular legal practice
area; and 3) be cautious about believing
self-serving marketing materials in expert
directories and on websites.
Learn about the field. A relatively inexpensive way to educate oneself about an area is to hire a graduate
student as a mini-expert to help you
learn the subject matter, identify issues,
and pre-vet potential experts’ qualifications. A grad student will most likely
be considered a non-testifying/consulting expert (a lawyer is very unlikely to
19
consider using the graduate student as
a testifying expert at trial), and, as such,
there is the added benefit that, in almost
all cases, communications with the student will not be discoverable.
A quick search of online booksellers such as Amazon.com can also help
a lawyer educate himself and produce
leads for potential experts. For example,
a search for “fetal alcohol syndrome”
on Amazon yielded 6,218 results.
Many of these results included
a synopsis, a table of contents, a
note from the publisher about the
work, and, in many cases, reviews of
the book. Besides books, the same
search on Amazon found manuals
and reports written by potential experts.
Canvass experienced lawyers. If you work in a law firm or
agency of any size, there are likely to be other lawyers who have
been down this road. Reach out
to them. When I was an associate
at Stoel Rives, I would send out a
firm-wide email asking for advice
and recommendations on experts.
It proved invaluable and saved my
bacon more than once. Most law
firms and agencies now have electronic databases that catalogue the
collective wisdom of more experienced colleagues who have documented their experiences with and
insights into both experts they
have worked with and experts they
have opposed.
For lawyers in small firms or for
solo practitioners, membership in one or
more of the WSBA’s sections provides
access to a “surrogate law firm” of colleagues who practice in a particular area
of the law. Section membership gives
lawyers access to a wealth of collective
experience and knowledge about experts. More than 13,000 WSBA members currently belong to one or more of
the WSBA’s 27 practice sections. Membership in sections of the American Bar
Association (ABA) provides similar
benefits on a broader geographic level.
In addition to bar association networking, other professional organizations
provide a fertile avenue for seeking advice on identifying the right expert for
your case. Local organizations such as
the Washington Defense Trial Lawyers
(WDTL), Washington State Association for Justice (WSAJ) (formerly the
Washington State Trial Lawyers Association), and Washington Association of
Criminal Defense Lawyers (WACDL)
all provide forums for members to exchange knowledge and information on
experts. The same goes for the national
counterparts of these organizations and
other national organizations, such as
the American Board of Trial Advocates
(ABOTA) and American College of Trial Lawyers (ACTL).
Use Internet sources judiciously.
As a tool for finding an expert, the Internet is an amazingly seductive resource. It can be an efficient method to
amass huge quantities of data about the
field and about experts’ qualifications.
A lawyer needs to be cautious, however,
and evaluate Internet information with a
grain of salt. When searching for “Seattle expert witnesses,” I found more than
one hundred websites self-designed by
individuals seeking employment as an
expert witness. The time spent in researching such self-serving marketing
materials may prove to be a poor invest-
When a newly
minted lawyer
realizes that an
expert would be
helpful — if not
critical — to her
preparation and
presentation of the
case at trial, there
can be a moment
of panic when she
thinks, “How do I
begin to find the
right expert?”
ment. Beware.
One Internet service that I have
found useful is LexisNexis’s “Expert
Witness Profiles,” which allows a lawyer to research the qualifications of more
than 220,000 potential experts beyond
the four corners of the experts’ CVs.
This can be an invaluable tool because
even if an expert looks good on paper,
there may be damaging information out
there that could discredit or even disqualify her. This service provides easyto-understand charts and graphs that offer at-a-glance insights into an expert’s
history, including data about the expert’s
credibility, biases, and testimonial track
record. A lawyer can elect to dig deeper
into any particular expert’s background
by clicking on links to details and documents —including full-text transcripts,
Daubert challenges, cases, journals, and
news articles.
Protect your expert communications. Although the scope of this
article is limited to the initial search for
an expert, a lawyer should consider treating all experts as “testifying experts” unless and until he is sure an expert will not
testify at trial. Many lawyers protect their
communications with potential testifying
experts by limiting their communications
to those that leave no paper trail, communicating either by telephone or inperson (using a white board only). This
practice was in response to the general
rule that communications with consulting experts (like the grad student) are
protected, while communications with
testifying experts are more vulnerable to
discovery. Recent changes to the Federal
Rule of Civil Procedure 26 provide some
protection for communications between
lawyer and expert in federal cases, but
communicating with care in all cases is
still the best practice. ◊
“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 reached at [email protected].
edu. Visit her webpage at www.law.washington.edu/Directory/Profile.aspx?ID=110.
WYLD Seeks Volunteers for Yakima Pre-Law Leadership Conference
This spring, the WYLD will host the 19th annual Pre-Law Leadership
Conference in Yakima for Eastern Washington high-school students.
The conference workshops and speakers inspire at-risk youth and minority students to consider a legal career and to take active leadership
roles in their communities and student governments, through creatively addressing hot-button legal issues. Attorney volunteers are needed
to prepare workshops, recruit students from local schools, and assist
with conference planning and logistics.
To participate in the conference, contact the chair, Alma Zuniga, at
[email protected].
20
From Lawyer to Matchmaker:
Laura Henderson
by Scarlett Hunter
F
or the lovelorn lawyer still looking for
the “one,” or the lawyer who wants to
follow his heart to a new career path,
Washington attorney Laura Henderson can offer inspiration and guidance.
Having transitioned from practicing lawyer
to practicing matchmaker and online dating
coach, Henderson is the CEO and founder
of two matchmaking companies: Meet Your
Match Online and Mutual Friend Intelligent Matchmaking.
Laura Henderson (née Cunningham)
began her legal career as a business law and
commercial real estate attorney. There were
parts of the practice of law that she really enjoyed, such as mediating a case and acting as
a trusted advisor for her clients. But after a
while, Henderson realized that her real passion
was relationships and helping people. Despite
the drastic differences between the two jobs,
she says there is actually a lot of overlap between her old life as a lawyer and new one as a
matchmaker: both professions involve keeping
confidences and gaining trust.
Henderson describes her transition from
lawyer to matchmaker as a natural one. As a
lawyer, she would meet with clients for dinner, and although they would talk business,
the conversation would often turn to the
client’s dating life. She had a lot of experience with online dating and often helped
her friends with their online dating profiles.
(Henderson met her husband through online
dating.) She even matched up some clients.
Eventually, Henderson found that she was
spending most of her free time helping people with their love lives. Turning this passion
into a career was a natural choice.
The first business Henderson started
was Meet Your Match Online (www.meet
yourmatchonline.com), an online dating and
counseling service. Through this business, she
helps clients develop an online dating profile
and figure out what type of person they are
looking for. She even helps some busy clients,
including lawyers, by searching online dating profiles and narrowing down the possible
dates to find potential matches. Henderson
remarked that her legal background helped
greatly when she started her own business.
Henderson’s other business is Mutual
Friend Intelligent Matchmaking (www.mu-
“The thing that a lot
of single lawyers
struggle with is that
they just don’t have
the time to go out and
meet people.”
tualfriendmatchmaking.com). This website
is a more traditional matchmaking service,
much like Patti Stanger’s Millionaire Matchmaker on the Bravo channel. She describes
this business as one for people who don’t
want to enter the world of online dating.
Henderson considers herself 100 percent focused right now on getting her two
businesses up and running. She has mostly
transitioned out of practicing law, although
she still keeps her WSBA license active,
and occasionally helps some clients set up
businesses.
As a matchmaker and lawyer, Henderson has a unique perspective on lawyers looking for love: “The thing that a lot of single
lawyers struggle with is that they just don’t
have the time to go out and meet people.” She
says, “It’s not necessarily appropriate to date
people at your workplace or clients, obviously.
So, I think what a lot of what lawyers struggle
with is finding someone who is smart enough
for them and also not in their everyday life.”
21
She says that, for busy lawyers, at times it
seems like the only option is to meet someone
on the bus to and from work.
According to Henderson, online dating
is a great way to expand your range of possible
matches — it helps you find potential matches outside your usual geographic zone and
beyond the types of people you normally associate with. She knows firsthand the benefits
of expanding one’s dating search; she met her
husband online while he was studying mathematics miles away in south Puget Sound.
She explains that she would never have met
her husband had she limited her search to her
local area and lawyer circle.
For love seekers, Henderson suggests
being specific about who you are looking
for and “getting through the process of at
least one phone call and setting up a date
to meet in person pretty quickly.” She says
that a lot of people can sound great on the
computer, but in person, may not be able
to hold a conversation with you. Henderson
also suggests expanding your geographic
search for potential dates, as there is a low
likelihood that your perfect match lives
within a 10-mile radius of you.
Although Henderson recommends expanding your search for love beyond the parameters of your daily life, she recognizes that
lawyer-lawyer relationships can and do work.
Her parents, for example, are lawyers and have
been happily married for 40 years. On the flip
side, sometimes two lawyers in a relationship
can be the “perfect storm” of strong personalities. If you are thinking about dating another
lawyer, make sure you truly enjoy spending
time with lawyers outside of work.
Online dating is common these days
and doesn’t have the stigma it once did. It
can be a practical tool to help you in your
search for love. And if you find yourself
needing some professional help, Henderson is only an email away. ◊
Scarlett Hunter practices commercial litigation at Schwabe, Williamson & Wyatt, P.C.
She can be reached at [email protected].
Correction
December’s article on the “2011 ABA
YLD Fall Conference” inadvertently
contained a few errors. In the first and
third paragraphs, references to the
WYLD should have been to the ABA
YLD. These errors were contained only
in the De Novo version disseminated
via email. We apologize for the mistake.
Member Spotlight
Danan Margason
• I became a lawyer because I wanted to have the skills necessary to influence the world around me in a positive way.
• Nobody would ever suspect that I used to have hair that ran down to my shoulder blades.
• If I could pick a superpower, it would be either static teleportation or omniscience (note: Google helped me answer this
question by directing me to the “Superpower Wiki”). Static teleportation allows me to teleport with friends, so I can have
lunch in Paris instead of the teriyaki place down the street. Omniscience gives me the power to answer every question in
the universe, past, present, and future. This would allow me to prep for trial by simply throwing on my suit (which would
obviously be the exact suit the judge or jury wants to see).
• The best legal/workplace advice I ever received is: create false deadlines that you believe in. Never set yourself up so
you are scrambling to get projects out the door.
• The best advice I have for young lawyers is: every time you make a mistake (which will be often), ask yourself whether
it will matter in a year. If the answer is no, then relax and use the experience to help you get better. You will be fine and
you won’t get fired.
• All-time or current favorite movie/book/TV show: Breaking Away, a movie about a group of guys in Bloomington, Indiana, who grow up and learn about life by racing bicycles. I also love Desert Solitaire, an autobiography by Edward Abbey
about living alone in Arches National Park for a year.
• My favorite places in Washington: the San Juan Islands in the summer and Crystal Mountain in the winter.
• I care about: the Mariners and the Sonics. They both never fail to disappoint me, and Howard Shultz’s decision to sell the
Sonics gave me an acceptable excuse to never drink Starbucks.
• If I were not practicing law, I would be training for the 2012 Olympics in London.
• My favorite band/type of music is “beard
rock,” the latest Seattle trend that has produced
The Head and the Heart, Pickwick, Allen Stone,
Campfire OK, etc.
• If $100,000 fell into my lap, I would try and
negotiate a really cheap trip to space so I could
experience zero gravity and check out Seattle
from 330,000 feet.
• If I could change one thing about the law, it
would be making it easier for lawyers to represent low-income people without hurting their law
firm’s bottom line.
• Happy hour location/cocktail of choice: The
Bookstore Bar and an Old Fashioned.
• Friends would describe me as somebody
who is generous and likes to bring people
together.
I was born and raised in Seattle and attended Roosevelt High School. From there, I went to Rutgers University (majoring in philosophy and political science) and spent time living in Boston, New York, Washington, D.C., and Atlanta.
I rowed with the United States National Team and was the head rowing coach at Emory University, but over time I
realized that I wanted a successful career more than I wanted an Olympic medal. I attended law school at the University of Washington and now practice at Reed Longyear Malnati & Ahrens PLLC in Seattle. My primary practice areas
are real estate, litigation, probate, and estate planning. You may reach me at [email protected].
22
22
Thurston County Bar Association Young Lawyers Luncheon
In December 2011, Thurston
County Bar Association young
lawyers gathered for a luncheon at
Italia Restaurant in Olympia.
Left (front to back): Tricia Hahn,
Megan Card, Stacy Marchesano,
Aaron Millstein, Jennifer Miller.
Right (front to back): Megan Bartley, Schuyler Rue, RaShelle Davis,
Jason Zittel.
Snohomish County YLD Annual Meeting
In January, the Snohomish County
YLD gathered at Lombardi’s in Everett
for their annual meeting.
Back row L-R: Trustee Randy Penrod, Kari Petrasek, Trustee Michael
O’Meara, Trustee Danielle Pratt,
President-elect Rachel Edmiston,
Omar Nur. Front row L-R: Trustee
John Garza, President Perry McConnell, Michael Kvistad, Ben Pratt,
Andrew Swan, Secretary/Treasurer
Amanda Effertz.
Young Lawyers / Young Psychologists Joint Networking Event
Psychologist Wallace Wilkins, Ph.D., and
WYLD Social Co-Chair Joshua Pops talk at
a networking event on January 12 with the
WYLD and the Washington State Psychological Association (WSPA) Early Career
Psychologists.
23
WYLD Committee and Program Chairs — 2011–12
WYLD Editorial Advisory Committee
Claire Been, Editor
[email protected]
Joel Matteson, Associate Editor
[email protected]
WYLD First Responder Will Clinic
Ford Clary, Co-chair
[email protected]
Jenni Volk, Co-chair
[email protected]
New Lawyer Education
Focus Group
Doug Reiser, Chair
[email protected]
Noah Williams, Chair-elect
[email protected]
WYLD Member Outreach
Elizabeth Tellessen, Chair
[email protected]
Chris Wong, Chair-elect
[email protected]
Jamie Burgett, Social Co-chair
[email protected]
Alicia Levy, Social Co-chair
[email protected]
WYLD Board of Trustees — 2011–12
Helen Ling, Social Co-chair
[email protected]
Joshua Pops, Social Co-chair
[email protected]
WYLD Trial Advocacy Program
Naomi Otto, Chair
[email protected]
Jessica Blye, Chair-elect
[email protected]
WYLD YMCA Mock Trial
Partnership
Megan Valentine, Chair
[email protected]
Gemma Zanowski, Chair-elect
[email protected]
President
Dainen Penta
[email protected]
President-Elect
Beth Bratton
[email protected]
Pierce County
Chris Maharry
[email protected]
Immediate Past President
Kari Petrasek
[email protected]
South Central District
Alma Zuniga
[email protected]
Greater Olympia District
Megan Card
[email protected]
Southeast District
Nanette Blackburn
[email protected]
Greater Spokane District
Robin Haynes
[email protected]
Southwest District
Daniel Gasperino
[email protected]
King County (A)
Vacant
At-Large Trustee
RaShelle Davis
[email protected]
WYLD Public Service/Pro Bono
Ben Nivison, Chair
[email protected]
King County (B)
Scott Husbands
[email protected]
Alicia Levy, Chair-elect
[email protected]
King County (C)
Stacy Marchesano
[email protected]
WYLD Yakima Pre-Law
Conference
Alma Zuniga, Chair
[email protected]
North Central District
Jordan Miller
[email protected]
Northwest District
Diana Bob
[email protected]
Peninsula District
Elizabeth Cable
[email protected]
The Washington Young Lawyers Division is a part of the
WSBA Education and Outreach Department.
Snohomish District
Michael O’Meara
[email protected]
Gonzaga University Trustee
Lindsay Box
[email protected]
Seattle University Trustee
Frank Ruiz
[email protected]
University of Washington Trustee
Eric Rhoades
[email protected]
BOG Liaison
Carla C. Lee
[email protected]
WSBA Liaison
Brian Salts-Halcomb
[email protected]
For detailed contact information, please visit www.wsba.org/Legal-Community/New-and-Young-Lawyers/Leadership.
Editor • Claire Been
Associate Editor • Joel Matteson
Designer • Stephanie Perry
Past Editors • Allison Peryea, 2010–11 • 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 email to [email protected]. By submitting articles, the author licenses
© 2012 Young Lawyers Division • Washington State Bar Association • All rights reserved.
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.

yW LD - Washington State Bar Association

Transcription

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