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BRIDGING THE GAP Presented by KCBA Young Lawyers Division

March 7, 2014 Table of Contents

Chapter 5 1:45-2:45pm Litigating For Small Business Clients—Realities & Strategies Aric Bomsztyk, Barokas Martin & Tomlinson

PowerPoint distributed at the program and also available for download in electronic format: 1. Litigating For Small Business Clients—Realities & Strategies

Electronic format only: 1. Example – Confession of 2. Example – Judicial Subpoena Duces Tecum

2/27/2014

Litigating For Small Business Clients “Realities & Strategies”

Aric Bomsztyk

March 7, 2014 Barokas Martin & Tomlinson (206) 621‐1871 – [email protected]

Small Business Litigation Realities

•You know the owners, not an institution •Tangible personal risk •Not necessarily sophisticated legal consumer •Size of dispute •Size of budget •Emotions

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

1 2/27/2014

Small Business Litigation Realities

•Every action: • Is it economical? • Will it be effective?

•People Skills‐Building Trust & Rapport • Understanding • Explanation • Responsiveness • Communication • Advocacy

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Two Parables

•The Boiler‐Efficiency •The Surgery‐Economy

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

2 2/27/2014

Can Client Recoup Attorney Fees?

• By Contract‐RCW 4.84.330 • “In any action on a contract or lease entered into after September 21, 1977, where such contract or lease specifically provides that attorneys' fees and costs, which are incurred to enforce the provisions of such contract or lease, shall be awarded to one of the parties, the prevailing party, whether he or she is the party specified in the contract or lease or not, shall be entitled to reasonable attorneys' fees in addition to costs and necessary disbursements.”

• Under $10,000‐RCW 4.84.250 • “Notwithstanding any other provisions of chapter 4.84 RCW and RCW 12.20.060, in any action for where the amount pleaded by the prevailing party as hereinafter defined, exclusive of costs, is seven thousand five hundred dollars or less, there shall be taxed and allowed to the prevailing party as a part of the costs of the action a reasonable amount to be fixed by the court as attorneys' fees. After July 1, 1985, the maximum amount of the under this section shall be ten thousand dollars.”

• Specific Causes Of Action‐Review RCW 18, 19 & 60 • Trade Secrets‐RCW 19.108.040 • Business Opportunity Fraud Act‐RCW 19.110.130 • Liens‐RCW Title 60 Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Can Client Recoup Attorney Fees?

• Consumer Protection Act‐RCW 19.86 • Can be used by businesses: Sign‐O‐Lite Signs Inc. v. DeLaurenti Florists Inc. , 64 Wash. App. 553, 825 P. 2d 714 (1992) • Prevailing Only: Sato v. Century 21 Ocean Shores Real Estate, 101 Wash. 2d 599, 681 P. 2d 242 (1984)

• Keep In Mind Other Prevailing Party Only Statutes • Wage Claims‐RCW 49.52.070 • Discrimination Claims • Insurance • Property damage • Business interruption/lost profits • Harassment/discrimination

• Indemnity Relationships

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

3 2/27/2014

Before You Draft The

•How much negotiation has occurred? •How unreasonable is the other side being? •Does the other side have an attorney? •Timing •Picking up the phone •Clients thankful for solving without a suit

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

What …District Court?

• Expedited ‐CRLJ 26 • Limits on amounts of • Far Less RFP’s (8) & RFA’s (15) • Depositions • (1) A party may take the of any other party, unless the court orders otherwise. • (2) Each party may take the deposition of two additional persons without prior permission of the court. The deposition shall conform to the provisions of CR 30. • Time for Discovery‐CRLJ 26(g) • Twenty‐one days after the service of the summons and complaint, or counterclaim, or cross‐complaint, the served party may demand the discovery set forth in sections (a)‐‐(d) of this rule, or request additional discovery pursuant to section (e) of this rule. Unless agreed by the parties and with the permission of the court, all discovery shall be completed within 60 days of the demand, or 90 days of service of the summons and complaint, or counterclaim, or cross complaint, whichever is longer. • How Discovery to Be Conducted‐CRLJ 26(f) • Any discovery authorized pursuant to this rule shall be conducted in accordance with Superior Court Civil Rules 26 through 37, as governed by CRLJ 26.

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

4 2/27/2014

What Venue…District Court?

•Jurisdictional Limitations ‐‐ RCW 3.66.020 • $75,000 • Not clear if they can issue declaratory judgments • Other statues require claims to be brought in Superior Court

•Summons Is Different

•Don’t have technology or resources of Superior Ct

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

What Venue…Superior Court <$50K? • The Heart of MAR 5.3 • (c) Rules of Evidence, Generally. The extent to which the Rules of Evidence will be applied shall be determined in the exercise of discretion of the arbitrator. The Rules of Evidence, to the extent determined by the arbitrator to be applicable, should be liberally construed in order to promote justice. The parties should stipulate to the admission of evidence when there is no genuine issue as to its relevance or authenticity. • (d) Certain Documents Presumed Admissible. The documents listed below, if relevant, are presumed admissible at an arbitration hearing, but only if (1) the party offering the document serves on all parties a notice, accompanied by a copy of the document and the name, address and telephone number of its author or maker, at least 14 days prior to the hearing in accordance with MAR 5.2; and (2) the party offering the document similarly furnishes all other related documents from the same author or maker. This rule does not restrict argument or proof relating to the weight of the evidence admitted, nor does it restrict the arbitrator's authority to determine the weight of the evidence after hearing all of the evidence and the arguments of opposing parties. The documents presumed admissible under this rule are: • (1) A bill, report, chart, or record of a hospital, doctor, dentist, registered nurse, licensed practical nurse, physical therapist, psychologist or other health care provider, on a letterhead or billhead; • (2) A bill for drugs, medical appliances or other related expenses on a letterhead or billhead; • (3) A bill for, or an estimate of, property damage on a letterhead or billhead. In the case of an estimate, the party intending to offer the estimate shall forward with the notice to the adverse party a statement indicating whether or not the property was repaired, and if it was, whether the estimated repairs were made in full or in part, attaching a copy of the receipted bill showing the items of repair and the amount paid; • (4) A police, weather, wage loss, or traffic signal report, or standard United States government life expectancy table to the extent it is admissible under the Rules of Evidence, but without the need for formal proof of authentication or identification; • (5) A photograph, videotape, x‐ray, drawing, map, blueprint or similar documentary evidence, to the extent it is admissible under the Rules of Evidence, but without the need for formal proof of authentication or identification; • (6) The written statement of any other witness, including the written report of an expert witness, and including a statement of opinion which the witness would be allowed to express if testifying in person, if it is made by affidavit or by declaration under penalty of perjury; • (7) A document not specifically covered by any of the foregoing provisions but having equivalent circumstantial guaranties of trustworthiness, the admission of which would serve the interests of justice. Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

5 2/27/2014

What Venue…Superior Court <$50K?

•MAR “De Novo” • MAR 7.1 (a) Service and Filing. • Any aggrieved party not having waived the right to may request a de novo in the superior court. • MAR 7.2(b)(1) • The shall be conducted as though no arbitration proceeding had occurred. No reference shall be made to the arbitration award, in any pleading, brief, or other written or oral statement to the trial court or either before or during the trial, nor, in a jury trial, shall the jury be informed that there has been an arbitration proceeding. • MAR 7.3 • The court shall assess costs and reasonable attorney fees against a party who appeals the award and fails to improve the party's position on the trial de novo.

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

What Venue…Small Claims Court?

•Small Claims Court • Suits under $5,000 • Must be a resident of the county • Can collect attorney fees‐RCW 12.40.105 • If the losing party fails to pay the judgment within thirty days or within the period otherwise ordered by the court, the judgment shall be increased by: (1) An amount sufficient to cover costs of certification of the judgment under RCW 12.40.110; (2) the amount specified in RCW 36.18.012(2); and (3) any other costs incurred by the prevailing party to enforce the judgment, including but not limited to reasonable attorneys' fees, without regard to the jurisdictional limits on the small claims department. • Transfer to Superior Court for enforcement‐RCW 12.40.110(3) • Transcripts of such judgments may be filed and entered in judgment lien dockets in superior courts with like effect as in other cases.

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

6 2/27/2014

The “Pocket” Serve

•Serve without filing •Get their attention, possible negotiations •Couple with a demand letter

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Complaints

• Notice Pleading State • Washington is a notice pleading state. Under CR 8(a), the only requirement for a complaint or other claim for relief (counterclaim, cross claim, or third party claim) is that it must contain (1) a short and plain statement of the claim showing that the pleader is entitled to relief, and (2) a demand for judgment for the relief claimed.

• are to be construed liberally; if a complaint states facts entitling the plaintiff to some relief it is immaterial by what name the action is called. Simpson v. State, 26 Wash. App. 687, 615 P.2d 1297 (1980). • Plead In The Alternative • Relief in the alternative, or of several different types, may be demanded.

• Always easier to plead than to add • CPA, Individual Liability • Boiler Plate • End your pleadings the same way every time with a • Remember to plead—pre judgment and post judgment interest, attorney fees and costs

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

7 2/27/2014

You’ve Been Served

• First thing, very first thing, send an email • “My client, Acme Inc., has received your complaint. I will be filing my notice of appearance in court in the above action. In the meantime, please consider this my notice of appearance and serve all future pleadings on me.”

• Morin v. Burris, 160 Wash. 2d 745, 161 P.3d 956 (2007) • Pre‐litigation contacts are insufficient to establish an appearance entitling to notice of for default.

• It appears to us that mere intent to defend, whether shown before or after a case is filed, is not enough; the defendant must go beyond merely acknowledging that a dispute exists and instead acknowledge that a dispute exists in court.

• File the Notice of Appearance

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

The Notice Of Appearance

•Pick up the phone…

•if voicemail, set up a time to speak…

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

8 2/27/2014

Answering the Complaint

• Admit nothing. • Repeat what you would “admit” in your own words. Deny the rest.

• Mr. Smith lives in Seattle, WA. Unless specifically admitted above, deny the reallegations and incorporation contained in Paragraphs 1.1 • Use the following stock phrases • Defendants are without sufficient information to admit or deny the allegations contained in Paragraph 1.1 of Plaintiff’s Complaint and therefore deny the same.

• The allegations in contained within Paragraph 1.1 of Plaintiff’s Complaint call for legal conclusions that are denied to the extent that legal conclusions require any response at all.

• Defendants deny the allegations contained in Paragraph 1.1 of Plaintiff’s Complaint.

• Unless specifically admitted above, Defendants deny the reallegations and incorporation contained in Paragraphs 1.1

• The terms of any documents referenced by Plaintiff speak for themselves. Except as specifically admitted herein, Defendants deny the remaining allegations of Paragraph 1.1 of Plaintiffs’ Complaint.

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Top “110” Affirmative Defenses

• Accord & Satisfaction • Claim Pre‐Empted by Federal • Act of God • Collateral Estoppel • Action Prematurely Brought • Contributory Fault • Active & Passive Negligence • Contributory Gross Negligence • Advance Payments • Contributory Negligence • Adverse Possession • Contributory Negligence – Intoxication • Another Action Pending • Contributory Wanton and Willful Misconduct • Arbitration (and Award) • Deception Doctrine • Assumption of Risk – Express Consent • Defamation Litigation Defenses • Assumption of Risk – Willful and Wanton • Defect of Parties • Breach of Condition Subsequent • Defective Acknowledgment • Breach of Contract • Defense of Third Person • Breach of Contract by Plaintiff & Subsequent Agreement • Nonperformance of Condition Precedent • Breach of Warranty of Habitability • Delay by Plaintiff • Capacity of Right of Party to Sue or be Sued • Discharged in Bankruptcy • Circuity of Action • Claim of Title

9 2/27/2014

Top “110” Affirmative Defenses

• Disclaimer • Failure to Raise a Compulsory Counterclaim in an Earlier Action • Discrimination • Duress • Failure to State a Claim • Election of Alternative Remedies • Failure to Submit Proof of Loss • Estoppel • Fair Employment and Housing • Exceptional Circumstances • Fault of a Nonparty • Extension of Time for Payment • Fleeing and Forcibly Resisting Arrest • Failure of Consideration • Foreign Law Failure of the Plaintiff to Mitigate Damages • • Fraud • Failure to Comply with Statutory Provisions • Illegality • Failure to Exhaust Administrative Remedies • Immunity • Failure to File a Claim • Impossibility • Failure to Join a Party Under Rule 9 • Improper Court • Failure to Mitigate Damages Improper Service of The Pre‐eviction Notice • Failure to Perform a Condition Precedent •

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Top “110” Affirmative Defenses

• Improper Venue • No Landlord ‐ Tenant Relationship • Incompetency of Defendant • Novation • Industrial Insurance Act • Misuse of Product • Injury by Fellow Servant • Patent Litigation Defenses • Insufficiency of Process • Payment • Insufficiency of • Possession Not at Issue • Insurance Defense • Prevention of Performance by Plaintiff • Justification • Privilege • Laches • Privileged Communications • Lack of Authority • Products Liability • Lack of Over the Person • Public Duty Doctrine • Lack of Jurisdiction Over the Subject Matter • Ratification • License • Rescission • Liquidation Damages • Release • Mistake of Fact • Res Judicata • Mistake of Law • Retaliation Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

10 2/27/2014

Top “110” Affirmative Defenses

• Setoff • Special Agreement • Specific Performance • Statute of Frauds • Statute of Limitations • Sudden Emergency • Ultra Illness • Ultra Vires • Unavoidable or Inevitable Circumstances • Unclean Hands • Unconscionability • Unenforceable Services Contract • Usury • Waiver • Worker’s Compensation • Other….. Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Counterclaim/Crossclaim/3rd Complaint

• Easier to plead now, then to amend your pleading • Don’t wait…

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

11 2/27/2014

Initial Steps For Fact Intensive Case

•Put your Clients to work •Clients make a timeline •Clients gather key documents • Invest in knowing the contracts • Documents/emails in a three‐ring binder •Clients make a witness list • Commit flakey witnesses to declarations

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Discovery Winning By Attrition

at·tri·tion \ə‐ˈtri‐shən, a‐\ the act or process of weakening and gradually defeating an enemy through constant attacks and continued pressure over a long period of time

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

12 2/27/2014

Request for Production

• "Document” is used in its broadest permissible sense consistent with the Civil Rules and refers to every writing or record or computer memory of every type and description that is or has been in the possession, control or computer memory of every type and description that is or has been in the possession, control, or custody of You, of which You have knowledge or to which You have access, including without limitation, contracts, agreements, correspondence, memoranda, stenographic or handwritten notes, e‐mail,s reports, records, telegrams, schedules, diaries, notebooks, logbooks, invoices, accounting records, worksheets, charts, notes, drafts, minutes of meetings, tabulations, computations, summaries, inventories, and writings regarding conferences, conversations or telephone conversation, audio and visual records, visual displays, photographs, microfilm, microfiche, computer records and all other taped, recorded, computerized, written, printed, or typed matters of any kind or description, every copy of any of the foregoing, regardless of whether such copy is a copy identical to an original and regardless of whether such copy contains any commentary or notation whatsoever that does not appear on the original. • NO. 1: Produce all Documents and correspondence that You contend support, relate, or refer to any denial, demur or affirmative defense in your . • REQUEST FOR PRODUCTION NO. 2: Produce all Documents and correspondence that You contend supports any (counter)claim that You have made. • REQUEST FOR PRODUCTION NO. 3: To the extent not already produced, produce each and every Document or correspondence which refers to, is in anyway related to, forms the basis of, or supports/substantiates in any way, in whole or in part Your answers to the preceding Interrogatories. • REQUEST FOR PRODUCTION NO. 4: Produce all Documents, correspondence and/or any other evidence, not previously produced that relate, refer are relevant in any way to this . Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Interrogatories

• INTERROGATORY NO. 6: Prior to this lawsuit, have You ever been involved as a party or a witness to any lawsuit, administrative proceeding, or legal proceeding of any type? If your answer is anything other than an unqualified no, please Describe the nature of each such lawsuit and your role in the lawsuit including (i) the names of plaintiffs and defendants in the lawsuit (ii) the name of the court in which the lawsuit was filed and the cause number (iii) the nature of the claim involved and (iv) the manner in which the lawsuit was resolved. • INTERROGATORY NO. 7: In Paragraph 10.4 of Your Answer, attached to these interrogatories and requests for production, You assert the following allegations (10.4‐Allegations) to wit …….For each 10.4‐Allegation please Describe (i) any and all facts that relate, pertain or would substantiate each such 10.4‐Allegation and (ii) any and all individuals with any knowledge of the facts relating to each 10.4‐Allegation (including a description of each such individual’s knowledge and/or the substance of the knowledge you believe such individual may have) and (iii) the amount of monetary damages You are claiming You suffered attributed to that specific 10.4‐ Allegation. • INTERROGATORY NO. 9: For the Affirmative Defenses You have asserted (¶8.1 through ¶8.11 of Your Answer) please identify the following separately as to each affirmative defense (i) any and all facts that relate, pertain or would substantiate each such affirmative defense and (ii) any and all individuals with any knowledge of the facts relating to each defense (including a description of each such individual’s knowledge and/or the substance of the knowledge you believe such individual may have.) • INTERROGATORY NO. 10: List the name, address and telephone number of each expert you intend to call as a witness at trial. For each expert, state the subject matter on which the expert is expected to testify. State the substance of the facts and opinions to which the expert is expected to testify and a summary of the grounds for each opinion.

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

13 2/27/2014

Request For Admissions

• Document Authentication/Signatures • Affirmative Defenses‐Service of Process, Statute of Limitations • Simple questions • Remember your 30 Day time limit‐CR 36(a) • Remember your client does not need to sign • CR 37(c) attorney fees • Expenses on Failure to Admit. If a party fails to admit the genuineness of any document or the truth of any matter as requested under rule 36, and if the party requesting the admissions thereafter proves the genuineness of the document or the truth of the matter, he may apply to the court for an order requiring the other party to pay him the reasonable expenses incurred in making that proof, including reasonable attorney fees. The court shall make the order unless it finds that (1) the request was held objectionable pursuant to rule 36(a), or (2) the admission sought was of no substantial importance, or (3) the party failing to admit had reasonable ground to believe the fact was not true or the document was not genuine, or (4) there was other good reason for the failure to admit. Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected] •

Depositions

•Expensive, make them worth their while •Goals—write them out—send to client •Mandatory client presence •Informal Goals • Get a sense of witness • Get a sense of other attorney • Let the other attorney get a sense of you

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

14 2/27/2014

Depositions

•Deposition Outlines • Put them at ease • Get witness talking, rambling to an extent is o.k. • Get as much impeachable statements as possible •Then multiple “Perry Mason Moments” •Save biting questions for the end

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Depositions

•What to Bring • Copy of highlighted pleadings • Copy of highlighted discovery responses • Key highlighted documents • Contracts • Emails • Prepared declarations •Take CLE’s on deposition strategy

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

15 2/27/2014

The 30(b)(6) Deposition

•Get the “Correct” Person •CR 30(b)(6) states: • “A party may in his notice and in a subpoena name as the deponent a public or private corporation or a partnership or association or governmental agency and designate with reasonable particularity the matters on which examination is requested.” • “A subpoena shall advise a nonparty organization of its duty to make such a designation. The persons so designated shall testify as to the matters known or reasonably available to the organization.” Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

The Expert

•Professional Expert •“Infrequent” Expert • Expensive • Inexpensive • Knows the drill • There’s an “authentic” appeal • Evidentiary advantages • Evidentiary advantages • Brings industry insight • Brings industry insight

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

16 2/27/2014

Experts’ Evidentiary Advantages

• ER 703 • The facts or data in the particular case upon which an expert bases an opinion or inference may be those perceived by or made known to the expert at or before the hearing. If of a type reasonably relied upon by experts in the particular field in forming opinions or inferences upon the subject, the facts or data need not be admissible in evidence. • Application to permit expert opinion based upon hearsay • In Group Health Co‐op. v. DOR, 106 Wash. 2d 391 (1986) • An action in which Group Health sought a refund of business and occupation taxes, the trial court properly allowed an expert in the area of wage and salary studies to testify that Group Health executives were paid salaries comparable to salaries paid to like positions in public service, where the expert's testimony was based upon his own studies, which in turn were based upon Group Health's organizational charts, job descriptions, and salary records, and upon interviews conducted by the expert's assistants.

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Motion Practice

•Even the simplest motions can be expensive… •Ask yourself four questions…. • What am I trying to accomplish? • What happens if I don’t do anything? • What are the chances of success? • Do I have my client’s informed buy‐in?

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

17 2/27/2014

Discovery Motions

• Be overly reasonable with timing • Put everything in writing • Remember your CR 26(i) conference and written summary • “Last chance” email when CR 26(i) deadlines pass • “Pre‐warn” about terms • Seek terms for drafting the motion

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Summary Judgment

• Remember to reserve it • Make sure your evidence is “tight” • Be ready for a “CR 56(l)” • Explain to your client • Save them money at trial • Increase leverage in negotiations • Meet the judge, but remember judges switch • To serve early/not to serve early? • Page limits by local rule • Client’s presence is a must

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

18 2/27/2014

Summary Judgment‐Facts

• I like to be creative, get the judge’s/attorney’s attention • If you’re dealing with insurance/large company • The adjuster/client will likely read it as well • Pleading paper is boring • Use graphics and illustrations • Tell a story, make it interesting • Build sympathy and

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Summary Judgment‐Movant’s Argument

• Don’t waste time on lengthy discussions on “law of SJ” • Explain your key cases • Use “direct quotes” rather than paraphrase • If it’s a great quote, and repeated, string cites appropriate • If you know what the defense is‐‐absolutely draw the sting • Then you can refine on your • White v. Kent Medical Center, 61 Wash. App. 163, 810 P.2d 4 (1991) • Summary judgment movant's initial burden of showing absence of issue of material fact can be met by showing there is absence of evidence supporting nonmovant's case, and movant is not required to support such motion by affidavits or other materials negating nonmovant's case.

19 2/27/2014

Summary Judgment‐Nonmovant

• Klinke v. Famous Recipe Fried Chicken, 94 Wash. 2d 255 (1980) • A genuine issue of fact exists, thus precluding summary judgment, when reasonable minds could reach different factual conclusions after considering the evidence. When reasonable minds could differ, the motion should be denied and the case should go to trial. Review their declarations • CR 56(e) • Personal knowledge. Declaration based upon “information and belief” is insufficient. • Declaration must be limited to “such facts as would be admissible in evidence. • CR 56(f), “buying time” • Turn the tables, move for SJ in your response • Rubenser v. Felice, 58 Wash. 2d 862, 365 P.2d 320 (1961) • Don’t ignore an argument Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Summary Judgment Oral Argument

• Your client needs to be there • Two binders • One argument outline • One with pleadings, then key cases • Roadmap for the judge • By oral argument, issues should be refined • Use your time wisely • If they ignored argument(s), oral argument is your time to emphasize • Visual aids • Arrive early, observe judge supervising court room/argument

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

20 2/27/2014

Mediation

• Mediator • Credible mediator, go with their pick • Tough and hardworking mediator • Prepare a trial budget for your client • Evidentiary organization‐ER 904, Witness Prep, Examination Prep, Motions/Briefs • Conferences, Misc. • Daily Trial Fee • Organization v. Solo • Mediation Letter • Insurance, Banks, detailed & exchange, they come with authority • Small businesses, short & do not exchange, they can make authority

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Settlement Agreements

• Recitals & Incorporate them • The Recitals set forth above are hereby incorporated in this Agreement by reference. • Dismiss the lawsuit, with prejudice & without fees or costs • Payment Plan Security • Confession of Judgment • Liquidated Damages • Deed of trust • ESD Subpoena • Representations/Warranties? Disclaimers? Covenants/Guarantees? • Indemnification from third party claims

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

21 2/27/2014

Settlement Agreements

• The Parties shall release and forever discharge one another, and each of the other Parties’ past and present agents, attorneys, employees, shareholders, members, owners, consultants, directors, officers, parent corporations, subsidiary corporations, affiliated corporations, and successors and assigns from and against any and all claims, actions, liabilities, causes of action, suits, proceedings, accounts, contracts and demands (collectively “Claims”) of any kind or nature the any Party had, now has, or may at any time in the future have, known or unknown, vested or contingent, against one another that are, directly or indirectly, based upon, related to or arising out of, facts, circumstances or relationships of any kind or nature, whatsoever that occurred prior to the date of this Agreement. Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Settlement Agreements‐Boilerplate

• Each Party has had the opportunity to consult with their own independent counsel. This Agreement was drafted by both Parties. The rules of contra proferentem shall not apply to the interpretation or construction of this Agreement and in case of a dispute the terms of the Agreement should be construed neutrally and not against the drafter. • In the event of any dispute over, relating or referring to this Agreement, including but not limited to collections actions, breach of Agreement actions, actions or equitable actions the prevailing party will be entitled to its reasonable legal costs, expert fees, and attorneys’ fees. • The construction, validity and performance of this Agreement will be governed by, and construed in accordance with, the of the state of Washington. All parties hereby submit to the jurisdiction of Washington state courts. The venue for all disputes shall exclusively reside in the courts of King County, Washington. • If any term, clause or provision of Agreement is held invalid or unenforceable by a court of competent jurisdiction, such invalidity will not affect the validity or operation of any other term, clause or provision and such invalid term, clause or provision will be deemed to be severed from the Agreement. • This Agreement constitutes the entire understanding of the Parties, and supersedes all prior Agreements between the Parties, and will not be modified or amended except in writing signed by both Parties. Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

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Settlement Agreements‐Boilerplate

• The Parties to this Agreement may execute this Agreement in counterparts, each of which, when executed and delivered, will be an original; but all such counterparts will constitute one and the same instrument. Facsimile transmittal of an original signature, photocopy of original signature, or facsimile transmittal of photocopy of original signature is binding and effective. • Captions contained in this Agreement are for reference purpose only, and are not intended by either party to broaden or limit the scope or intent of the Agreement or any of its provisions. • The provisions of this Agreement will be binding upon and inure to the benefit of the Parties hereto and their respective successors, assigns, heirs and administrators. • The failure of non‐breaching Party to seek relief for the breaching Party’s breach of any duty under Agreement, will not waive any right of the non‐breaching Party to seek relief for any subsequent breach. • The Parties will take all necessary and reasonable further acts and execute all reasonable further and necessary documents and instruments to affect the intent of this Agreement.

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

Trial/Arbitration Prep

• Outline every “fact” and how you are going to get it in • Oral testimony, document, photograph, other exhibit • See what stipulations you can reach with counsel • Friendly witnesses • Call get story • Prepare direct • Meet Face To Face, go over direct • Review depositions, emails look for cross material • My cross examination, I just write out sentences • Involve your client, make sure they know they need to be there

Aric Bomsztyk, Esq. ∙ (206) 621‐1871 ∙ [email protected]

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Thank You

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