60Th Anniversary Issue

King County Bar Association NON PROFIT ORG. 1200 Fifth Avenue, Suite 700 U.S. POSTAGE PAID Seattle, WA 98101 KENT, WA PERMIT NO 71 BBARAR BBULLETINULLETIN THE Volume 36 • Issue 1 • $2.00 Reality Issue September 2017 KCBA Celebrates Combating Alternative Facts 60 Years of the in Reproductive Health Care Bar Bulletin By Gene Barton Age catches up to all of us. We By Priya Walia us with the medical knowledge to turn press care clinics, and their information were well into production of the Health care — what is quality aches and pains into treatments and appears to be medically based. CPCs August issue of the Bar Bulletin health care, who gets it, who should therapies. What happens, then, when advertise their services using persuasive when we realized that it was our pay for it — is a topic of much discus- we cannot trust our providers for med- phrases such as “evidence based medi- 60th anniversary issue. So, we have sion, especially with the advent of the ically accurate information? cal care,” “all options pregnancy coun- decided to throw ourselves a belated Affordable Care Act. To some, health Since the 1970s, free so-called “clin- seling,” “high quality medical care,” and birthday party and you’re all invited. care should be a fundamental human ics” called crisis pregnancy centers “accurate confidential services” to lure It was August 1957 when the right for all, while others see aspects (“CPCs”), or sometimes limited ser- clients into their offices. then-Seattle Bar Association sent of health care — especially pertaining vice pregnancy centers (“LSPCs”), have The funders of and volunteers at out the first issue of the Bar Bulletin to women — as a wedge political issue. been posing as walk-in medical clinics CPCs hold a deep-seated belief that to its members. That 4-page effort, At the core of these debates is an for women and girls. They often have abortion is immoral and must be which you will find reproduced in acknowledgement that health care pro- no medical professionals on staff, and stopped. But regardless of one’s per- these pages, bears no resemblance viders play an important and special typically target young, poor, rural and sonal beliefs, limiting access to abortion to today’s publication, except for the role in being not only providers of care, otherwise vulnerable people through — or any medically necessary proce- name — it has always been the Bar but trusted providers of information deceptive practices. dure — endangers the lives and health Bulletin. But fledgling as it was, it that enables us to exercise informed They use names and advertisements at least had style. consent. For many, the human body is that mimic legitimate reproductive REPRODUCTIVE HEALTH CARE This was no mimeograph — re- a great mystery; physicians empower health clinics, their offices mirror ex- continued on page 8 member those? — that somebody banged out on a manual, Royal typewriter. No, this was a professional effort, likely farmed out to an uncredited, local publishing house, Addressing the Five Myths although typewritten pages probably did change hands. President Charles Horowitz wrote the first president’s column, of Document Management titled “President’s Corner,” and it has been a mainstay ever since, although it has been shuttled to page 2 from By Kevin Harrang heavy traffic. And internet search en- than 43 percent year over year.1 But page 1. The genesis of the current and Marty Smith gines instantly find information from we are behind in figuring out how to Bar Talk column appeared on page New technologies surprise us ev- the largest collection of knowledge ever deal with this issue. 3 as “DeTurk, On Trivia,” so-called ery day with their sophistication and assembled by mankind. Clearly, a firm’s historic collection for its author Phil H. DeTurk, then capabilities. They promise welcome of knowledge and work product can assistant editor. Of notable attor- relief from the drudgeries of manag- The email and data explosion be a huge asset. Think of the advan- neys on the move, Bill Dwyer and ing information in our business and Yet, inside our law firms, we con- tages of easily finding and reusing past Calvin “Gordy” Culp had set up a personal lives. tinue to struggle with managing an ex- work, quickly discovering and avoiding new firm; Bill Helsell had left the The latest smartphones can auto- plosion of emails and documents that hidden conflicts of interest, dodging U.S. Attorney’s Office to join Helsell, matically label photos with locations are coming at us at an ever-increasing and people. Easy-to-use apps can pro- rate, and law firms are not alone. Busi- DOCUMENT MANAGEMENT 60 YEARS vide us with the fastest route through ness data are growing now at more continued on page 10 continued on page 18

President’s Page...... 2 Dining Out...... 24 • • • • • From the Desk of Bar Talk...... 26 I N S I D E the Executive Director...... 3 Volunteer of the Month...... 27 Profile / Bruce Hilyer...... 6 Batson Makeover Virtual Reality Bites Law Library...... 28 Family Law Matters...... 11 The Washington Supreme Court found Is the human fixation on Business of the Board...... 29 the case it was looking for to rewrite escaping reality creating Bar Bulletin 60th Anniversary...... 15–18 From the Desk of the rule on peremptory challenges. our own Armageddon? the Presiding Judge...... 30 2017-2018 King County Page 4 Page 14 Bar Leadership...... 20 Classifieds...... 31 President’s A Lesson Learned and Page Now Passed on By Andrew W. Maron Gulp. I didn’t exactly know how to respond to But, that does not preclude you from developing that one. He then laughed and said, “No worry. Those a cordial, or at least not a negative, relationship with things sometimes happen. You know, my client just the other lawyer, and treating the opposing lawyer as ne of the most inspiring KCBA events is the wants to get paid what he thinks is owed to him. a colleague working to resolve a difficult situation. twice-yearly swearing-in ceremonies for new Would you talk to your client and then call me back If you do that, you are more likely to solve your cli- Oadmittees to the bar. As KCBA president this and tell me why payment isn’t happening? Perhaps ent’s problems, and that will lead to satisfied clients, year, I have the honor of welcoming new lawyers to we can short-circuit this lawsuit and get this matter which is everyone’s goal. the practice of law. resolved.” I told him I would and hung up the phone. The King County Bar Association has many pro- I intend to tell the new lawyers the many good I called our client and learned more about what grams to help new and experienced lawyers learn reasons they should join the King County Bar Asso- the case was about and, working with lawyer Jones from each other, for KCBA’s primary goal is to assist ciation. In addition, I also intend to tell them a story and the lawyers for the other defendants, the case lawyers to be successful. Please join us.  — about a lesson I learned from another lawyer in was settled relatively quickly. a single phone call early in my career. It has helped I didn’t fully realize right away what had hap- Andrew W. Maron is president of the King County Bar Association and a partner at Short Cressman shape my work over the years. Here is what happened. pened in that phone call, but it began to sink in as & Burgess. His practice focuses primarily on I was a new lawyer in my law firm in Seattle. A I continued learning in the succeeding years about construction, real estate, local government law and senior partner asked me to represent a client caught how to be a lawyer. In that call, he taught me three commercial litigation. He can be reached by email up in a King County mechanic’s lien foreclosure things that I have tried to implement ever since. ([email protected]) or phone (206-515-2247). lawsuit filed against multiple defendants. I honestly First, introduce yourself to the lawyer on the other remember very little of the details of the case, not side of a case or transaction, and communicate ini- even the names of the parties or lawyers. But I do tially in person or on the phone. Letters, emails and BAR BULLETIN September 2017 • Volume 36, Issue 1 recall my next step. now even text messages can force a formality that I noticed that the property in question, very sometimes can be a barrier to effective communica- Editorial submissions or letters near the King-Snohomish county line, was actually tion, and we all know that emails in particular can Editor Gene Barton: in Snohomish County. State law requires that a lien on occasion be wholly misconstrued. Don’t neglect (206) 224-8030 or [email protected] foreclosure lawsuit be filed in the county where the the person-to-person dialogue. 701 Fifth Avenue, Suite 3300, Seattle WA 98104 property is located. The case had been filed in King Second, recognize that lawyers are people, too. Advertising County, i.e., the wrong county. It is not about showing up the other lawyer or mak- Mayra Vidrio: So, I wrote a letter to plaintiff X’s lawyer telling ing life difficult for him or her. Or, worse, painting (206) 267-7051 or [email protected] him I represented defendant Y, advising him he had the other lawyer as the enemy. Practicing law is a Changes of address filed the case in the wrong county, and requesting tough job, with pressures from all sides. One of my Janielle Ford: (206) 267-7016 or [email protected] he immediately dismiss the case. I also enclosed a senior partners always said, “If you can give a law- formal notice of appearance in case he did not dis- yer a break, do so.” Bar Bulletin Staff miss the lawsuit. Obviously, you should not do something that Gene Barton, Editor A day or two later, I received a phone call. “Hi, I’m disadvantages your own client, but there is no rea- Karen Sutherland, Bar Bulletin Committee Chair Juliette Miratsky, Production John Jones (not his real name). I represent plaintiff X, son to be a jerk. And, for those of you interested in and I received your letter. I see you are new at Short business development, a major source of referral of King County Bar Trustees Cressman (at that time, lawyers’ names were listed in new business will be lawyers you have met along Andrew W. Maron, President seniority on the letterhead, and I was conspicuously the way. Don’t burn bridges. Harry H. Schneider, Jr., 1st Vice President near the bottom of the list). How long have you been Finally, lawyer Jones’s actions in asking for an Jennifer Payseno, 2nd Vice President there?” I told him a year or two. He asked, “What early explanation of my client’s position helped guide Donald B. Scaramastra, Treasurer did you do before?” I explained to him a bit of my our inquiry to the heart of the problem. In other Floyd Short, Trustee-Secretary background as a trial lawyer in the U.S. Army JAG words, he was focused on reaching a resolution for James Clark Karen Orehoski Corps, etc. We exchanged pleasantries for a while. the client, not on the lawyer or the lawyer’s actions. It Clayton Graham Erin Overbey He then said, “I look forward to working with you was a reminder to me of the obvious — our only job Robert Hyde Raegen Rasnic to resolve this case. You are right, we filed the law- as lawyers is to help solve a problem for the client. Bree Kame’enui-Ramirez Lee Thomas suit in the wrong county. We’ll take steps to dismiss Using this kind of approach works even in our Shawn Larsen-Bright Sidney Tribe it and refile it in Snohomish County.” I was feeling adversary system, in which we must and do fully rep- Marcus Naylor Michael Wampold somewhat proud of myself, until I then heard his next resent our clients’ interests within the dictates of the Andrew J. Prazuch, Executive Director sentence. “By the way, your notice of appearance has Rules of Professional Conduct. On behalf of your cli- Kathleen Hopkins, ABA Delegate the wrong cause number, and you entered an appear- ents, you will often aggressively oppose the positions Kelli Rodriguez-Currie, Young Lawyers Division Chair ance for defendant Z, not your client defendant Y.” expressed by other attorneys. That is as it should be. KCBA Mission Statement The King County Bar Association provides support to its diverse BAR BULLETIN membership; promotes a just, collegial and accessible legal system and profession; works with the judiciary to achieve excellence Upcoming in the administration of justice; strives to benefit the community through its own efforts and those of its Foundation; and offers op- Issue portunities for public service and input into matters of public policy. © 2017 King County Bar Association. All rights reserved. Reproduction Submissions is expressly prohibited unless written permission is given by the Welcome editor. The Bar Bulletin is published monthly by the King County Bar Association. Prepared for publication by LLM Publications, PO Box 91099, OCTOBER: Portland, OR 97291. RIGHTS II All editorial material, including editorial comment, appearing herein represents the views of the respective authors and does not necessarily carry the endorsement of the Association or the Board To contribute, or of Trustees. No editorial material is intended as legal advice nor for more information, should it be considered to be legal advice. Likewise, the publication of any advertisement is not to be construed as an endorsement of please contact: the product or service offered unless it is specifically stated in the ad Editor Gene Barton that there is such approval or endorsement. Karr Tuttle Campbell King County Bar Association (206) 224-8030 (206) 267-7100 • http://www.kcba.org [email protected] Profile Illustration by Mike Durrant

2 September 2017 BAR BULLETIN Bar Bulletin Highly Rated by Our Members

For comparison purposes, we From the Desk of the asked respondents to also evaluate EXECUTIVE DIRECTOR a two other legal publications to see how the Bar Bulletin stacks up. The By Andrew Prazuch state bar’s “Northwest Lawyer” magazine was highly rated (above average s part of our Diamond Anni- or excellent) by 56% of respondents versary celebration for the Bar and the ABA Journal received a 50% ABulletin, KCBA conducted an rating. That tells me KCBA is doing online survey last month to learn how a very good job with its publication. our members see our premier publica- The most popular monthly fea- tion. The results are in! ture of the Bar Bulletin is the Superior While not a scientific poll (respon- Court Presiding Judge’s column, rated dents self-selected and the results were as above average or excellent by 67% not reflective of our overall member- of respondents. Next up is the month- ship demographics), 260 of you took ly Profile article, which is cited by 63% an average of four minutes each to an- of our readers as a top feature. Round- swer the 13 main questions. Anytime ing out the top three features at 59% is 260 members share their opinions, our monthly Bar Talk column, which that feedback is relevant in my book. contains reports of attorney and judge dated. Also, 57% of you in this latest On a related note, I want to encour- Here’s what we learned. moves and awards. I won’t take it per- survey tell us you prefer it in news- age readers to check out the Bar Bulle- First, the Bar Bulletin gets high sonally that my monthly column only paper format, with just 24% saying tin online to see what you think. Our marks from members for the overall scored a 49% “excellent” or “above av- you’d prefer a magazine format (19% survey reports that 80% of respondents caliber of substantive legal news and erage” score (next time I need to ask had no opinion). haven’t read it online. KCBA may test analysis it reports each month; 78% of my mother to get her friends to take That said, what about moving away sending a special monthly email with respondents (154 total) rated the Bar the survey and run up my score). from a print version at all? Hard copies an online table of contents to see if that Bulletin either “above average” or “ex- Next, I want to share your thoughts of a monthly publication? Sounds very increases exposure to that alternate way cellent” on this question. Only two re- about the look of the publication. First, old school! to enjoy the Bar Bulletin each month. spondents evaluated the publication’s 65% of you find the look appealing Turns out our members prefer hard- Lastly, while 84% of our respon- content as “below average” or “poor.” and readable, while 19% find it out- copy, too. Eighty percent of the re- dents reported they read the Bar Bul- spondents asked that we continue to letin every month, the good shepherd print the hardcopy version even as we in me is curious to know why the oth- r continue our work to make our online er 16% don’t. Is there something KCBA content more accessible. Just 12% of can do to improve the publication? The the respondents suggested that we stop answer seems to indicate that I can’t using paper and ink altogether. solve this problem, though. The main Interestingly, that statistic stays fair- reason given for not reading the Bar ly constant even if we filter the results Bulletin: not enough time. to show what Baby Boomers or older Given the positive feedback so (pre-1965 birthdates) want versus what many of your fellow lawyers and judg- Continuing Legal Education Generation X/Millennials (1965 or later) es have offered about our 60-year-old \ think. The pre-1965 bunch say “digital publication, I hope all our members Save the Date! Available only” 5% of the time, while the post- will try to make a little time for the Bar Appellate CLE: 1965 bunch say “digital only” at a 25% Bulletin. It will be time well spent.  “Seasoned Professionals and Judges Live or rate. Definitely a shift, but since the membership is still evenly divided be- Andrew Prazuch is executive director of Share Their Practice Tips and Lessons Webcast! tween both demographic groups, the the King County Bar Association. He can Learned” hybrid print/online solution still seems be reached by email (andrewp@kcba. right to me. org) or phone (206-267-7061). Program Chairs: Cynthia B. Jones, Jones Legal Group, LLC Averil B. Rothrock, Schwabe Williamson & Wyatt Speakers: • Anne E. Egeler, Office of the Attorney Eisenhower Carlson PLLC General Friday is pleased to announce • Leonard J. Feldman, Peterson Wampold September 29, Rosato Feldman Luna • Honorable David S. Mann, Washington 2017 ARTHUR D. DELONG State Court of Appeals, Div. I • Justice Sheryl G. McCloud, Washington has joined our rm as an Associate. State Supreme Court Arthur is a business and corporation • Colleen M. Melody, Office of the Attorney transactions attorney. His practice focuses General • Kathleen M. O’Sullivan, Perkins Coie LLP on corporate organization, securities New CLE oerings, banking, mergers and Highlights: acquisitions, intellectual property, real • Wide Variety of Appellate Advice! To Kick-Off estate, and trust and estate planning. • Networking with Peers! 6.50 CLE Credits • Interactive Discussion Session with presenters! The5.50 LawYear! & Legal Eisenhower Carlson PLLC 1.00 Ethics www.kcba.org/cle Tacoma, WA 98402 CLE Department: 206.267.7008 or 206.267.7067 253-572-4500 www.eisenhowerlaw.com

BAR BULLETIN September 2017 3 Facing the Reality of Racial Bias Supreme Court Rewrites State’s Batson Standard

By Gene Barton it found that he had not presented a prima facie case error on the prosecution’s part…. The timing was The Washington Supreme Court’s July 6 decision for discrimination.5 not ideal, but the challenge was raised when the trial in City of Seattle v. Erickson will effect a sea change As an initial premise, one needs to understand court still had an opportunity to correct it…. [T]he trial in the manner in which peremptory challenges will the State’s role in applying the U.S. Supreme Court’s court still had adequate ability to remedy any error.”14 be reviewed when the result is excusing a minority three-part Batson test, under which: Moving on to the more pressing issue of “dis- member of the venire when a minority defendant (1) the defendant must establish a prima facie criminatory purpose,” the Court noted that it has “the is on trial. case that “gives rise to an inference of discrim- power to determine, under appropriate circumstanc- As a unanimous Court stated, “We amend our inatory purpose;” es, whether the traditional Batson analysis should be Batson framework and hold that the peremptory strike (2) if a prima facie case is raised, the burden amended or replaced to ensure the promise of equal of a juror who is the only member of a cognizable shifts to the prosecutor to provide an “adequate, protection.”15 In this regard, it resurrected the Court’s racial group constitutes a prima facie showing of ra- race-neutral justification for the strike;” and ongoing discussion of a “bright-line rule” since its cial discrimination requiring a full Batson analysis (3) if a race-neutral explanation is provided, decision in State v. Rhone,16 in which Justice Charlie by the trial court.”1 the court must weigh all relevant circumstances Wiggins, in a dissenting opinion, stated: The first paragraph of the Court’s ruling suc- and decide if the strike was motivated by racial I would have this court adopt a bright line rule cinctly laid the factual framework for the opinion animus.6 that a defendant establishes a prima facie case of that followed: Having established this framework, the U.S. Su- discrimination when, as here, the record shows In 2013, Matthew Erickson, a black man, was preme Court “left the states to establish rules for the that the State exercised a peremptory challenge charged in Seattle Municipal Court with unlaw- ‘particular procedures to be followed upon a defen- against the sole remaining venire member of ful use of a weapon and resisting arrest. After dant’s timely objection to a prosecutor’s challenges.’”7 the defendant’s constitutionally cognizable ra- voir dire, the city of Seattle (City) exercised a pe- However, the state Supreme Court “has great discre- cial group.17 remptory challenge against the only black juror tion to amend or replace the Batson requirements if From there, it was a quick and easy step for the on the jury panel. After the jury was empaneled circumstances so require.”8 Court to conclude: “We now follow our signal in and excused from the courthouse with the rest As to the timeliness issue, the Court noted that Rhone and adopt a bright-line rule.”18 That rule pro- of the venire, Erickson objected to the peremp- in a prior case it had reviewed a Batson challenge vides as follows: tory challenge, claiming the strike was racially brought after the jury was empaneled, but declined In the past, this court has provided great discre- motivated. The court found that there was no to review the timeliness issue.9 “We now choose to tion to the trial court when it comes to the finding prima facie showing of racial discrimination and address it,” the Court stated.10 of a prima facie case pursuant to a Batson chal- overruled Erickson’s objection.2 Initially, per the Court, “objections must generally lenge. To ensure a robust equal protection guar- The Court, which accepted direct review after be raised ‘at a time that will afford the [trial] court an anty, we now limit that discretion and adopt the the Court of Appeals denied discretionary review, opportunity to correct [the error]’”11 It further noted bright-line Rhone rule. We hold that the trial court reversed. As the Court noted, Batson v. Kentucky3 that “[s]everal state and federal jurisdictions allow must recognize a prima facie case of discrimina- “guarantees a jury selection process free from racial Batson challenges even after a jury has been select- tory purpose when the sole member of a racially animus.” At the same time, the Court essentially ad- ed and sworn in.”12 cognizable group has been struck from the jury. mitted that it had been remiss in adequately embrac- In finding that Erickson’s challenge was timely, The trial court must then require an explanation ing Batson’s premise. It stated: the Court stated: from the striking party and analyze, based on the [W]e have noted that our Batson protections are Read together, the (state and federal) decisions explanation and the totality of the circumstances, not robust enough to effectively combat racial dis- have adopted rules requiring that a Batson chal- whether the strike was racially motivated.19 crimination during jury selection. We have repeat- lenge be brought at the earliest reasonable time In a final note, the Court felt compelled to ex- edly signaled our desire to better effectuate the while the trial court still has the ability to remedy plain that adoption of the bright-line rule “does not equal protection guaranties espoused in Batson. the wrong. These cases recognize that judges and change the basis for a Batson challenge.” However, we had not yet found the opportunity parties do not have instantaneous reaction time, The evil of racial discrimination is still the evil to do so. Now, by explicitly asking this court to and so have given both trial courts and litigants this rule seeks to eradicate. Rather, this alteration amend our Batson analysis and squarely briefing some lenience to bring Batson challenges after provides parties and courts with a new tool, al- the issue, Erickson has provided that opportunity.4 the jury has been sworn. This is in line with our lowing them an alternate route to defend the There were two issues presented to the Court: own jurisprudence. Objections should generally protections espoused by Batson. A prima facie (1) whether Erickson’s objection was timely, given be brought when the trial court has the ability to case can always be made based on overt rac- that, as noted above, it was not exercised until af- remedy the error, and allowing some challenges ism or a pattern of impermissible strikes. Now, ter the rest of the venire had been dismissed, the after the swearing in of the jury does not offend it can also be made when the sole member of jury sworn in and then excused for the day; and (2) that ability.13 a racially cognizable group is removed using a whether Erickson made a prima facie showing of ra- Noting that the lower court had “limited … reme- cial discrimination. While the Municipal Court found dial options,” the Supreme Court indicated that the BATSON STANDARD that Erickson had not waived the Batson challenge, judge “could still declare a mistrial to address any continued on page 5

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4 September 2017 BAR BULLETIN BATSON STANDARD has largely failed in its promise to eliminate bias benefits. The peremptory challenge is an antiquat- continued from page 4 in jury selection and (2) finding a meaningful ed procedure that should no longer be used.29  solution goes well beyond simply tinkering with Gene Barton is the editor of the Bar Bulletin. He is peremptory strike.20 the first prong of the Batson analysis. a shareholder with Karr Tuttle Campbell where he Not all of the justices were satisfied, although … It would be unfortunate if today’s decision … maintains a general litigation practice. He may be — as noted — none dissented. The gist of the two were perceived as somehow signaling that the reached at 206-224-8030 or [email protected] concurring opinions is that the bright-line rule is not court has “fixed the problem.” I hope instead a perfect solution, thereby signaling that there still that our decision sends the clear message that 1 Erickson, No. 93408-8 (July 6, 2017), slip op. at 2. Five justices signed the principal opinion authored by Justice Susan Owens. Jus- may be more problems ahead. this court is unanimous in its commitment to tice Debra Stephens issued a separate, concurring opinion, joined by Justice Stephens called the new rule “neither eradicate racial bias from our jury system, and Chief Justice Mary Fairhurst. Justice Mary Yu also issued a separate, necessary nor particularly likely to transform the that we will work with all partners in the justice concurring opinion. 2 Id. at 1. Erickson was eventually convicted. Batson analysis into a useful tool for combatting system to see this through.26 3 476 U.S. 79, 106 S. Ct. 1712 (1986). 21 racial bias in jury selection.” She noted that Erick- In her dissent, Justice Yu said, “I applaud the 4 Erickson, slip op. at 1–2. son had “made a prima facie showing of intentional adoption of a bright-line rule,” but still expressed 5 Id. at 4–5. discrimination under the first prong of the Batson her doubts about the Court’s decision: 6 Id. at 5–6 (citations omitted). analysis” and “further demonstrated that the trial I am concerned that our solution assumes too 7 Id. at 6 (citing Batson, 476 U.S. at 99). court erred by considering his challenge in light of much and falls short on ensuring that no juror is 8 Id. (citing State v. Saintcalle, 178 Wn.2d 34, 51, 309 P.3d 326 (2013)). Saintcalle has been considered the Washington Supreme ‘whether there were members of any constitutionally removed solely because of race, gender, sexual Court’s principal Batson case. 22 protected group on the jury.’” orientation, or religious beliefs. I am unable to say 9 Id. at 7 (citing State v. Rhone, 168 Wn.2d 645, 652 n.5, 229 P.3d She further contended that the rule “is also unlike- with certainty that every peremptory challenge 752 (2010) (plurality opinion)). ly to significantly reduce racial bias in jury selection by the State against a person of color is motivat- 10 Id. because the ultimate inquiry under Batson remains ed by racial animosity, and adopting a bright-line 11 Id. (citing State v. Wicke, 91 Wn.2d 638, 642, 591 P.2d 452 (1979)). whether the peremptory strike against a sole mem- rule that does not extend to members of other 12 Id. (citations omitted). 13 Id. at 8–9 (citing Wicke, 91 Wn.2d at 642). ber of a constitutionally protected group evidenced cognizable groups does not address discrimina- 14 Id. at 9. 23 27 intentional race discrimination.” tion on any basis other than race. 15 Id. at 10 (citing Saintcalle, 178 Wn.2d at 51). Finally, Justice Stephens noted that a proposed In her view, “the basic framework of Batson does 16 Id. at 10–12. court rule, General Rule (GR) 37, which is in the midst not work, and the record in this case demonstrates 17 Rhone, 168 Wn.2d at 659 (Wiggins, J., dissenting). of the rulemaking process, is designed to “alter the the awkwardness and impracticability of the so-called 18 Erickson, slip op. at 13. method for evaluating claims of race-based peremp- Batson challenge.” Given her reservations, Justice Yu 19 Id. at 15 (citing Batson, 476 U.S. at 94; Saintcalle, 178 Wn.2d at 42). tory challenges so that the intentional discrimination joined with Justice Steven Gonzalez “in calling for the 20 Id. that must be proved under Batson is no longer re- complete abolishment of peremptory challenges.”28 21 Erickson, Stephens, J. (concurring), slip op. at 1. quired.”24 The comment process concluded in April It was in Saintcalle that Justice Gonzalez wrote: 22 Id. at 1–2 (emphasis in original). and the Court “has convened a work group to care- [T]he use of peremptory challenges contributes 23 Id. at 2 (emphasis in original). 24 Id. at 3. fully examine the proposed court rule with the goal to the historical and ongoing underrepresentation 25 Id. at 4–5. of developing a meaningful, workable approach to of minority groups on juries, imposes substantial 26 Id. 25 eliminating bias in jury selection.” administrative and litigation costs, results in less 27 Erickson, Yu, J. (concurring), slip op. at 1. The [public] debate has been robust and informa- effective juries, and unfairly amplifies resource dis- 28 Id. tive, and has underscored two truths: (1) Batson parity among litigants—all without substantiated 29 178 Wn.2d at 69–70.

BAR BULLETIN September 2017 5 Profile / Bruce Hilyer A Man for All Seasons

By Peter Ehrlichman ruce Hilyer is a complex, highly intelligent man with a great sense of humor, currently serving Bthe community as a solo mediator in Seattle. As this profile will show, Bruce is a multi-faceted man. He is a fourth-generation attorney, who has succeeded in a significant and impactful way in jobs that “benefit” from having a law degree: attorney; counsel to the mayor; King County Superior Court presiding judge; and now arbitrator and mediator. And he appears to have achieved a sense of balance in pursuit of his non-law life. The Honorable Hilyer graduated from Mercer Island High School in 1969, where he served on the Inter-High School Council (group of eastside high schools). He attended Cornell University, receiving a B.A. in government (1973) and later his J.D. from UW Law (1979, Order of the Coif). While juggling law school (he graduated at the top of his class) and clerking for a small firm, Bruce helped organize the doorbelling efforts on behalf of Charlie Royer’s Seattle mayoral campaign. He joined the King County prosecutor’s office upon graduation and spent two years there. Former colleague Becky Roe recalls that Bruce and another assistant prosecutor helped convict a murderer, only to learn that the defendant’s dad was a relocated mobster who did not take kindly to the conviction. A contract was put out on Bruce’s life (for the insulting sum of $10,000). Bruce had to wear a bulletproof vest, live with guards and occasionally hide out. At an early stage in his career, ruce left private practice to become a King years. At the end, Judge Hilyer prepared findings and Becky noted, Bruce showed that life would never be County Superior Court judge in 2000, appoint- conclusions that, according to Wampold, demonstrat- dull around him. Bed by Gov. Gary Locke. Judge Hilyer was elected that “he understood the case better than I had.” fter trying felony cases for a couple years, ed presiding judge by his peers in 2008 and served Wampold’s high assessment is echoed by others with Bruce left the prosecutor’s office to become in that role through 2010. Current Presiding Judge whom we spoke, including Judge Helen Halpert of Alegal counsel to Mayor Royer (1982–85) — Laura C. Inveen described Judge Hilyer’s work on the the King County bench, who called him a “great all that doorbelling paid off. In the same fashion by bench as follows: “He excelled … he had the respect judge, very smart.” which the current sitting Seattle mayor has proceeded, of his fellow elected officials in both the executive Not everyone knew of Judge Hilyer’s sterling Royer came to lean on this sharp, engaging young and legislative branches, and had an extraordinary reputation, however. For years while serving on the attorney to help guide him through the multitude of reputation for working together with them.” King County bench, he would work out at the Wash- legal issues facing the City of Seattle. Tough budgetary times required Judge Hilyer ington Athletic Club in the morning. His day would Following his stint in government, Bruce spent to be the ultimate tightrope walker. “His experience begin by arriving at the WAC in his gym clothes, three years in a small firm where he worked along- with revenues and competing needs in lean times,” worn underneath his overcoat. side distinguished attorneys, including the late Susan Judge Inveen said, “lent to the establishment of court One day, he was stopped by a Seattle police of- Agid, John Keegan, and his good friend and mentor programs in the family law area which provided ser- ficer as he approached the WAC. He was asked to Mike Cohen (currently of counsel at Dorsey & Whit- vices to pro se litigants, while providing a funding open up his coat, which as presiding judge he was ney). What Bruce recalls learning from Cohen about source as well.” not used to doing. The officer was responding to a the legal profession is: “We are in the service business All agreed he was an extremely effective admin- report that a flasher was frequenting Sixth Avenue in which people are the most important assets — cli- istrator, working with the county executive, council and Union Street early in the mornings. Fortunately, ents, colleagues and staff. Focusing on their unique and the bench to find solutions to a severe financial that day Judge Hilyer had remembered to wear his humanity, everything else will take care of itself.” crunch affecting the court. Attorney General Bob running shorts, according to our source. No scandal- In 1988, Bruce joined a bigger firm, Culp Gutter- Ferguson recalls: “I’ve known Judge Hilyer for a long ous headlines about the PJ followed. son & Grader, which had been founded by the leg- time. I worked closely with him when I was on the fter a very close, but unsuccessful statewide endary Bill Dwyer before he left to join the federal King County Council and he was the PJ. Bruce was primary race for state Supreme Court, it was bench. It had 45 attorneys, which in those days was a dedicated public servant and advocate for justice.” Atime for Bruce to consider “what now?” As a “big” firm, and it allowed Bruce to work on some Judge Hilyer’s work on behalf of the bar and bench Seattle attorney Brad Keller noted: “Bruce can’t take large cases with some great lawyers. resulted in him being named “Judge of the Year” in his finger off the reset button. He’s been a lawyer That experience prepared Bruce to hit the ground 2010 by the KCBA. with a thriving private practice, a prominent judge, a running when he opened his own law office in 1994, While hearing cases, Judge Hilyer earned a rep- successful real estate investor, a politician and most emphasizing commercial, environmental liability and utation for being an excellent trial judge. Trial attor- recently, an accomplished ‘go to’ mediator.” health law cases. One of his earliest passions was pilot- ney Mike Wampold tells the story of trying a case to Bruce left the bench in 2013 to begin his fourth ing small airplanes, and there was one two-year period the Hilyer bench 10 years ago, which involved very when he flew his Mooney Rocket, single-engine air- technical and scientifically complex facts. It was a PROFILE / BRUCE HILYER plane coast to coast for depositions and trial 18 times. case that Wampold had carefully prepared for two continued on page 7

6 September 2017 BAR BULLETIN PROFILE / BRUCE HILYER mith reports that Bruce shines as a mediator. “It understands the importance of balance,” Smith says. continued from page 6 requires patience, understanding, liking people, “In Bruce’s world there is more to life than work and Sand a fascination with the process of negotia- we are better and more effective in our careers for or fifth legal career, as mediator and arbitrator, first tion,” Smith says. “Bruce has all of those skills. No understanding this.” Experiencing the wilderness is with JDR, then as principal of his own firm, Hilyer mediation with Bruce is rushed to conclusion. Bruce every bit as important to Bruce him as his career. He Dispute Resolution. Fellow mediator and friend Jim always has in mind the fact that the key hallmark of is truly a man for all seasons. Smith, Jr., reports that when Bruce asked him about a good mediator is the ability to listen to the parties Until recently, Bruce was not aware that he is a pursuing a new career as mediator and arbitrator, and their counsel, acknowledging the fact that a suc- fourth generation attorney. He always knew his father Smith responded: “I told him that it was a fascinat- cessful mediation will have to be a substitute for the Gale P. Hilyer, Jr. was a lawyer, who practiced in Se- ing career, which, in my view, would be a natural parties’ day in court. He always has time to listen.” attle from 1951 to 1979. And he knew that his grand- and unique match with his own skills. That turned Others have also experienced what Brad Keller father Gale P. Hilyer, whom he never met, worked in out to be an understatement.” has seen firsthand. “Whether with a smile or that a private law practice and for the U.S. government. Bruce describes his current work as a mediator gleam in his eye, both as a judge and now as a me- But he never was told that his great-grandfather as challenging. “Being a mediator,” he says, “is dif- diator,” Keller relates, “Bruce has that uncanny abil- Andrew Hilyer, was a distinguished lawyer in the ferent than being a judge and harder in some ways ity to, without saying a word, let you know when he D.C. area in the early 1900s, or that this early rela- because it is usually easier to decide a case than it is thinks you are out to lunch.” tive was born a slave in Georgia and became the first to convince the parties that a reasonable settlement When not involved in the practice of law, judg- African-American graduate of the University of Minne- is achievable. Of course, as an effective mediator, ing or mediating, Bruce also has pursued many a sota. Turns out, Andrew Hilyer was a noted civil rights you must read the mediation statements, digest and life adventure: leader in the Booker T. Washington and W.E.B. Du understand the issues, but that may not be enough • as the father of two (Brett, 32, and Brittany, 25); Bois era, who became a regent of Howard University. to settle the case. • horseback rider (his recent As Judge Halpert wrote: “The lesson I have learned above all else is the shoulder injury from a fall is not “Bruce, certainly, was always same that my mentor explained to me 35 years ago illustrative of his usual skills); socially conscious, but his per- — it’s ultimately human beings to whom we provide • pilot of small planes (Mooney sonal history, I believe, now in- service, whether as lawyers, judges or mediators. Rocket); forms his long-held views in a And to be an effective mediator, in my opinion, the • river rafter and kayaker; meaningful and deep way.” Col- indispensable quality is that you respectfully and • hunter; legial, practical, humorous and faithfully engage with the litigants and their lawyers • 2016 Burning Man attendee with a wealth of real-world expe- as human beings. (the photo, taken by a prominent rience, Bruce Hilyer is a person “At times that may mean getting yelled at (I have colleague mentioned in this arti- you would enjoy spending time very thick skin), or ignored, or cried to, but these cle, is worth more than a thousand with. Hopefully you will get that all reflect aspects of being human. So even though words); and chance someday.  every case is different, it is that challenge to use the • world explorer, including law, the evidence, and everything you have learned Machu Picchu. Peter Ehrlichman is a long-time about being human that makes being a mediator ravel is a key component friend of Bruce Hilyer (since such an amazing occupation. Besides, in what oth- of Bruce’s life, per Smith. 1967). Ehrlichman is a senior er profession is having gray hair more useful than T“This is a man who, unlike trial partner in Dorsey & Whitney looking youthful?” some of us who still practice law, LLP’s Seattle office.

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BAR BULLETIN September 2017 7 REPRODUCTIVE HEALTH CARE an investigation into the prevalence have been mixed, California’s recent these jurisdictions (California, San Fran- continued from page 1 of CPCs in King County and their ef- Reproductive Freedom, Accountability, cisco, New York City, Baltimore and fect on people seeking reproductive Comprehensive Care, and Transparency King County) made very similar factual of the people who are seeking help. health care.6 (“FACT”) Act, which contains a section findings about CPCs and their imme- For example, many CPCs get peo- After months of testimony and re- that is nearly identical to the County’s diate threat to individuals and public ple in the door with the promise of search, the Board concluded its investi- new ordinance, has been upheld by the health. By posing as real health clin- free ultrasounds that purport to be di- gation with the passage of an ordinance, Ninth Circuit Court of Appeals; a peti- ics, CPCs put people at risk of forgo- agnostic, but are actually performed by which takes effect September 16, to help tion for certiorari to the U.S. Supreme ing prenatal care, missing crucial care non-medical professionals who cannot people distinguish between fake and le- Court remains pending.9 for potential pregnancy complications, diagnose life-threatening complications gitimate clinics. The ordinance requires The FACT Act survived both free and being forced to go through with such as an ectopic pregnancy. Other facilities that fall into the County’s defi- speech and free exercise clause chal- an unintended pregnancy. CPCs claim to provide abortion services nition of a “Limited Service Pregnancy lenges and is broader than the King The number of LSPCs in the Unit- to attract clients, but manufacture de- Center” to post signs stating, “This fa- County ordinance. The Act requires ed States vastly outnumbers real re- lays by telling the pregnant person that cility is not a health care facility.”7 both non-licensed and licensed medi- productive health clinics.18 Meanwhile, they have nine months to decide wheth- In reaching this decision, the Board cal facilities to post notices to clients, actual abortion providers have been er to terminate a pregnancy,1 when le- consulted public health experts, wom- whereas the County ordinance regulates driven to close their doors due to ex- gally pregnant persons have only until en’s rights advocates and King County LSPCs as defined by the Board.10 As for cessive, unnecessary and targeted anti- fetal viability to exercise that choice.2 residents, all of whom were overwhelm- the free speech claim, the Ninth Circuit abortion regulation, along with threats When a pregnant person decides to ingly concerned about the vulnerabili- held that since the Act’s “primary pur- of violence.19 terminate their pregnancy, some CPCs ty of those targeted by fake clinics. As pose is to communicate information to Hopefully, King County’s new no- have told the person to wait because one medical provider testified, patients patients about reproductive medical ser- tice requirement will help people seek- there may be a miscarriage. This tactic are entitled to informed consent before vices,” it was “professional speech” and ing reproductive health care make med- could result in a later-term abortion, making medical decisions. Patients who well within the purview of the State’s ically informed decisions free from which would be more expensive and car- have not received all of the relevant in- regulatory power.11 misleading and deceptive tactics de- ries additional health risks, or ultimately formation about their options, potential The Court reasoned that since signed to deny and delay timely access prevent a person from asserting their health benefits, risks and alternatives the CPC staff are still free to express to a health care provider.  constitutional right to seek an abortion.3 cannot give fully voluntary consent. anti-abortion viewpoints, the notice While not every CPC uses all of Even though the proposition of in- requirement does not infringe on pro- Priya Walia is a staff attorney at the above tactics, these centers do have forming potential CPC clients about the tected speech, and the notice is not in- Legal Voice, a progressive feminist some go-to strategies to delay and pre- truth of their “doctor’s office” should extricably intertwined with protected organization that uses the power of the vent their clients from seeking care. seem non-controversial, anti-abortion speech.12 Further, the Ninth Circuit held law to make change in the Northwest. Typically, CPCs rely on three standard activists showed up in large numbers that the FACT Act does not violate the Legal Voice uses that power structure “alternative facts” to dissuade people to the Board meeting to fiercely oppose free exercise clause, as it is a neutral to dismantle sexism and oppression, specifically advocating for the region’s from obtaining an abortion. the proposed neutral and informative law of general applicability, meaning First, they say that abortion causes most marginalized communities: signage. They raised concerns that regu- the Act applies to all covered facili- women of color, lesbians, transgender breast cancer; second, that abortion will lating CPCs would be a violation of their ties, and is indifferent to the basis for and gender-nonconforming people, cause infertility; and, lastly, that people constitutional freedom of speech and any objection, even if that objection is immigrants, people with disabilities, low- who choose to terminate their preg- constitute religious discrimination.8 At grounded in religious belief.13 income women, and others affected by nancies are likely to suffer from “Post the Board hearing, some CPC supporters Even more recently, the Ninth Cir- gender oppression and injustice. Legal Abortion Syndrome” — a concocted even claimed that the provision to post cuit upheld San Francisco’s Pregnancy Voice was one of the organizations condition that has been disproven by the required sign would cause such or- Information Disclosure and Protection consulted by the Board of Health about the American Psychological Association ganizations to shut down permanently. Ordinance, which regulates the com- the King County Ordinance on Limited in a peer-reviewed study.4 The balancing act of protecting mercial speech of all CPCs in advertise- Service Pregnancy Centers. When seen in the context of these people in need of medical care, without ments regardless of whether a center aggressive and duplicitous recruitment infringing on protected speech or reli- has a medical professional on staff.14 1 A CPC supporter stated this “alternative fact” at the Board hearing. methods, it becomes clear that these gious freedom, is a serious and delicate The ordinance requires CPCs to tell three main lies are more than mere 2 RCW § 9.02.110. one. The King County Board of Health the truth that they do not provide or 3 Roe v. Wade, 410 U.S. 113 (1973). opinions on abortion; they are manip- is among many city, county and state refer for abortions, since their adver- 4 Brenda Major, et al., “Abortion and Mental ulation tactics. This significant threat bodies that have attempted to warn tisements suggest that patients receive Health: Evaluating the Evidence,” Vol. 64, No. 9, to reproductive health care came to American Psychological Association, 863–890 people about the misleading nature of comprehensive counseling, which im- (Dec. 2009). the attention of the King County Board LSPCs through lawmaking. Though the plies that patients would receive infor- 5 The King County Board of Health is made up of Health5 earlier this year, prompting results of legal challenges to such laws mation about every option available. of elected officials from the King County Council, the suburban cities of King County, the Seattle City The San Francisco and FACT Act Council, and appointed public health experts and cases, read together, bode well for the health professionals. RCW § 70.05.035. fate of King County’s new ordinance 6 Board of Health Briefing 17-808: “The Public Health Benefits of Benefits of Promoting Accurate because they suggest that laws requir- and Informed Reproductive Health Care Choices” Where Law and Medicine Merge ing an informational notice about CPCs (May 18, 2017). 7 King County Board of Health, BOH 17-04 (July are likely to withstand First Amendment 20, 2017), available at http://kingcounty.legistar.com/ speech and other challenges. LegislationDetail.aspx?ID=3092903&GUID=9BE7AE In other jurisdictions, courts have 79-09A6-4521-96B6-5066E1DA2631&FullText=1. It’s our life’s work! 8 It appears that most, if not all, CPCs are reli- A powerful team committed struck down local ordinances that, by giously affiliated. See Nikki Madsen, “Crisis Preg- to personal injury clients ~ different means, have sought to protect nancy Centers: What to Know,” Teen Vogue, June women from the very same misinfor- 2, 2017. Super Lawyers 9 Cal. Health & Safety Code § 123470. mation. Compelled speech at CPCs that Maria Diamond and Judy Massong 10 See note 7, supra. encourages pregnant women to seek the 11 A Woman’s Friend Pregnancy Res. Clinic v. care of a doctor has been struck down Harris, 153 F. Supp. 3d 1168, 1203 (E.D. Cal., 2015). when other alternatives, such as a city- 12 Id. at 1207. wide advertisement campaign, exist.15 13 Id. at 1211 (citing Stormans, Inc. v. Wiesman, 794 F.3d 1064, 1075–76 (9th Cir. 2015)). Additionally, tying the threat to shut 14 Id. down a CPC to compelled speech, on 15 Evergreen Ass’n., Inc. v. City of New York, 740 We’ve moved! New address below. an issue as hotly contested as abortion, F.3d 233, 250 (2d Cir. 2014). 1215 Fourth Avenue | Ste. 1275 | Seattle, WA 98161 has been held to be a violation of the 16 Id. 206-445-1258 First Amendment.16 In two circuits, re- 17 Id.; Greater Baltimore Ctr. for Pregnancy Con- www.diamondmassong.com cerns, Inc. v. Mayor & City Council of Baltimore, quirements that CPCs disclose whether 721 F.3d 264, 293 (4th Cir. 2013). they perform or provide referrals for 18 Elizabeth Dias, “The Abortion Battleground: abortion, emergency contraception or Crisis Pregnancy Centers,” Time, Aug. 5, 2010; Pam Belluck, “Pregnancy Centers Gain Influence prenatal care have not withstood in- in Anti-Abortion Arena,” The New York Times, termediate or strict scrutiny review.17 Jan. 4, 2013. 19 Guttmacher Institute: State Laws and Policies, Even though the results have var- “Targeted Regulation of Abortion Providers,” up- ied, the lawmaking bodies in all of dated, Aug. 1, 2017.

8 September 2017 BAR BULLETIN In Memoriam — Judge Joan DuBuque

the University of Washington with a Domestic Violence and Child Mal- A Court Leader and bachelor’s degree in political science treatment Coordinated Response in 1974. She received her Juris Doctor Guideline, has served as the back- Champion of the cum laude in 1977 from the University bone for improved and coordinated Vulnerable of Puget Sound (now the Seattle Uni- services to families. versity) School of Law. She served as an Her years of collaboration and com- assistance deputy prosecuting attorney mitment to the families served in our By Judge Deborah Fleck (ret.) for King County, handling interstate court provide an impressive legacy When Joan DuBuque was appoint- child support enforcement, non-sup- for this strong, courageous judge. ed to the King County Superior Court port and paternity cases. Judge DuBuque understood that bench in November 1989, she already She was in private practice for five serving as a judge involved far more had a fine reputation as a judicial of- years with an emphasis on domestic rela- than sitting on the bench hearing cases. ficer. In fact, practitioners held her in tions, personal injury, real property and Administering a large urban court of 53 awe when she served as a family law small-business representation. During judges and up to a dozen commissioners commissioner from January 1984 until that time, she participated in the Coun- takes a tremendous amount of effort — her judicial appointment. try Doctor Volunteer Lawyers Clinic and by judicial officers as well as staff. Joan league: “She was the best among us.” With hundreds of pages to read and worked with the Northwest Women’s chaired and/or served on no less than 18 Judge DuBuque retired in May 2014 absorb, she gave her logically construct- Law Center. Judge DuBuque was recog- of the Court’s committees — likely an and passed away on July 24. Her only ed oral decisions, often referring to nized in 2003 with the Judge of the Year historical record. She served in all court child, Tom Reanier, returned to Seattle declarations and orders filed in earlier Award by Washington Women Lawyers departments and presided over high- from his home in California to be with hearings. We all wondered, how in the for her work in Unified Family Court. profile cases including those involving her and at times care for her during the world does she do that? She kept notes In 2005, Joan was also recognized with the death penalty, giving every case, last four years of her life. They were and clearly had reviewed them when the Washington State Bar Association’s large or small, her careful attention. able to take a number of trips together the case came before her again some Champion of Justice Award. She always made time to mentor to the national parks in the west includ- months down the road. As attorneys, Judge DuBuque was a highly ef- new judges. “When I came to the bench, ing the Grand Canyon, which they both we knew we needed to be on our toes. fective leader on the King County Su- no one was more generous with their thoroughly enjoyed. Joan loved Husky King County Superior Court Chief perior Court. She served as the chief time and wisdom than Joan,” said Judge football and Irish literature, and was Administrative Officer Paul Sherfey judge of the Unified Family Court and Lori-Kay Smith. Retired Judge Harry an avid birdwatcher, a passion she was marveled at Judge DuBuque’s 30 years for a decade led a coalition addressing McCarthy recalls: able to pursue on her trips with her son. of service on the King County Superior the difficult issue of domestic violence. I will miss her warmth, humor and “There was no stronger advocate Court bench: “Judge Joan DuBuque worked tirelessly her generous mentoring. She was than Joan for the Court, the people Judge DuBuque championed many to improve the Superior Court’s abili- not only an outstanding judge, but who worked there or the community causes, most significantly focusing ty to handle cases involving children she represented the institutional we served,” recalled Court of Appeals on children and families, always and families,” recalled former Presiding memory of the court. I listened in Judge Michael Spearman. Former Pre- working to improve and provide Judge Michael Trickey, now serving on awe at judges’ meetings to her ex- siding Judge Dick McDermott remem- effective justice system solutions the Court of Appeals. planations of historic policy and bers that Judge DuBuque was always for our most vulnerable. Her keen Jorene Reiber, director of Family tales of how the court functioned willing to take difficult assignments, intellect, amazing memory and her Court Operations, remembered Judge in earlier times. She was a great noting that she performed superbly as energetic passion were present in DuBuque’s work — and her impact: teacher, particularly in family law, a Superior Court judge. Simply put, he all her many leadership roles in She served as the regional co-chair for new judges like myself who had states, “Judge Joan DuBuque was an our court. Even after leaving our of the DV/CPS Child Maltreatment no background in that most import- icon on our court.” bench, she remained involved and effort from its inception in 2004 ant part of the Court’s business. It was an honor and a privilege for in contact, suggesting further im- until 2014. Under her leadership, Above all, I will miss her charm those of us on the bench to serve with provements in our courts’ process- [an interdisciplinary group] came and her wisdom. Joan and a pleasure to know her. She es, always focused on improving together to create guidelines for an Justice Faith Ireland remembers was also a valued friend to many in the services for victims and the most effective, coordinated response to that “Joan always went the extra mile bar and the community. Joan was an in- vulnerable in our community. DV and child abuse/neglect in our to serve and lead.” When he was still credibly bright and logical thinker, with Judge DuBuque graduated from region. [Their work product], the a practicing attorney, retired Judge good judgment and a compassionate Michael Fox remembers watching Joan heart — just the right combination to on the family law motions calendar, al- be an excellent judge. I can think of no ways dignified and decisive. “That’s the greater compliment to a judge — one kind of judge I want to be,” he thought. that fits Judge Joan DuBuque to a T. “I never quite got there.” He remembers You served justice well, Your her as his friend and hard-working col- Honor.  Congratulates Our New Shareholder & Welcomes New Associate

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BAR BULLETIN September 2017 9 DOCUMENT MANAGEMENT like just like paper ones — if you want And if you’ve tried this, you know how saved into a central system with a dif- continued from page 1 to find them later, you need to organize challenging it can be to figure this out. ferent organizational structure is ineffi- and store them centrally. Worse, whatever you figure out for cient and ineffective. The best technol- repeated mistakes, and immediately It’s easy to come to this conclusion, your categories gets dated and inaccu- ogies today can collect that information being able to tout detailed knowledge given that it’s been true for things like rate over time, which is a real prob- easily. about your firm’s experience with a books, at least since the original Library lem because you can’t readily change prospective client. But, the reality is, of Alexandria in the third century BCE. what you’ve done in the past. All that What to do now? few, if any, firms are finding they can But it’s not true anymore. Unlike paper need happen for your taxonomy to There is much we can learn from take advantage of all that their data documents, electronic files don’t need become out of date is for a corporate other industries. From our bar associ- can offer. to be kept together to be searchable, client to change its name. So much for ations to legal technology conferences as long as the system knows where all your careful document tagging and to a plethora of new legal-tech pub- You can blame the technology they are. categorization. lications, resources abound. As law- One reason is the technology that’s It’s just like the worldwide web: What’s the alternative? Just like with yers who have long been dedicated to currently available in the legal sector. no one organizes it, and yet you can document tagging and profiling, the improving the practice of law, we en- Managing information is not a new find almost anything because Google newest approaches to data management courage every attorney to explore the problem; in fact for many years, a or Bing indexes everything for you. don’t need taxonomies or categories to latest data management technologies. plethora of products have promised find what you’re looking for. Most of all, we encourage keeping an relief. Myth #2: open mind.  But historically these solutions have Documents need to be manually Myth #4: proven to be cumbersome, time con- tagged, profiled or otherwise You can make people use a Kevin Harrang, Esq., and Marty Smith, suming and expensive to implement, categorized. document management system. Esq., are founders of MetaJure, so many lawyers are reluctant to try Besides manual uploading, the oth- This is probably the most over- Inc. (www.metajure.com), a legal them. The data back this up. According er common feature of traditional docu- looked problem with current document tech company that is helping law to the ABA, as of 2016, only 56 percent ment management products is that they management systems. It is usually just firms successfully drive efficiencies by automating email and document of all law firms have adopted a formal task users with the chore of filling out assumed that when asked (or even told), management. For almost three decades, document management system and that profiles for every document entered users will put all their documents into Harrang and Smith have been legal 2 number is even less for small firms. into the system. Users need to speci- the system. innovators. Harrang spent 18 years fy whether something is a contract or But where this takes time and re- with Microsoft, most recently as deputy But …the enemy may be us agreement or pleading, not to mention quires multiple manual steps, even the general counsel for legal operations. A second reason, however, may be the name of the client, client number most well-intentioned users will fall be- Smith established the Intellectual us. Ironically, as we mentioned above, and the like. hind on compliance. No wonder that Property Practice Group for Preston outside the legal profession, sophisti- Not only is this time consuming and when actually measured, organizations Gates & Ellis (now K&L Gates), co- cated technology is doing much of the bothersome, it is also entirely unnec- typically find that fewer than 50 percent founded one of the first eDiscovery work of managing information. These essary. Search technology is now suf- of their documents ever make it into firms (Attenex) and for 25 years advised fresh approaches have the potential to ficiently sophisticated that documents the document management system.3 leading-edge tech companies and organizations. Harrang and Smith can be completely change how data are han- can be easily and quickly located with reached at [email protected] or dled in our law firms, but we lawyers simple keyword searches. Myth #5: [email protected]. may need to set aside some long-held No longer does a document need You can’t just let people assumptions about managing informa- to be manually categorized and tagged organize and store their 1 See www.realwire.com/releases/IDC-states-work- tion to give approaches that are emerg- to be found by the system. Systems documents however they please. ers-lose-a-huge-20-productivity-due-to-document ing in the legal market a chance. that still require manual tagging or It sounds like chaos to let people and www.idc.com/infographics/knowledgeworkers. According to the International Data Corporation’s The following five long-held as- profiling of documents are wasting the do whatever they want when it comes 2015 study, information workers (including law- sumptions, all rooted in the world of users’ time. to naming, storing and filing their doc- yers and other professionals who are connected to the internet and create, edit, review and/or ap- paper, are holding us back. uments. What’s counterintuitive, howev- prove electronic documents) lose 2 hours and 16 Myth #3: er, is that requiring users to save their minutes each week searching, but not finding, the right documents, and another 2 hours recreating Myth #1: Taxonomies are the key documents a second time in a central documents that can’t be found. Time wasted in You have to re-save documents to organizing documents. document management system is what document creation and management activities cost firms $7,242 per information worker per year. For a into a special repository Anyone who has installed a docu- creates disorder. firm with 100 lawyers, that amounts to more than to properly manage them. ment management system knows that Users already create, name, orga- $724,200 annually. Every document management sys- you start by trying to figure out a taxon- nize and save their documents locally 2 Source: American Bar Association at www. americanbar.org/publications/techreport/2016/ tem on the market today has this as its omy for your organization — the classi- on their PCs. Asking users to upload practice_management.html. central thesis: Electronic documents are fication system for all your documents. documents they’ve already named and 3 Based on MetaJure, Inc.’s customer data.

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10 September 2017 BAR BULLETIN Additional Thoughts on the Issue of Civility: Discovery in Family Law and the Effects of Conflict on Children

Divorce is not easy, but if you Authors Sharon Friedrich (sfriedrich@ • Would the child(ren) benefit from genuinely put your kids first, that integrativefamilylaw.com) and the parents receiving feedback from dictates the civility you should Family Law Jennifer A. Forquer (jforquer@ a child specialist? Child specialists show each other. What example integrativefamilylaw.com) are partners meet with the children, not for the are you otherwise? Matters with Integrative Family Law (formerly purpose of conducting an evaluation, known as Carol Bailey and Associates). but for the limited purpose of collect- — Dawn French This is a quarterly column series ing information on what the children They focus on complex family law regarding current and practical are experiencing and then providing issues in the practice of family law. cases and welcome topic suggestions By Sharon Friedrich or requests for future columns. feedback to the parents. Sometimes and Jennifer A. Forquer even attentive parents can miss what As family law attorneys, we have is really going on with their kids when all had those “high conflict” cases that the case moves forward. Help your cli- and the role of each parent in that future they are in the midst of a divorce. are difficult. There are many reasons ents consider their long-term goals and can sometimes help them see past their • Do the child(ren) need coun- why a case may be high conflict and then consider those goals when making own immediate and very real pain and seling? If the parents agree that their sometimes there is not much that can decisions about a short-term issue. allow them to take action to increase the child(ren) can benefit from counseling, be done to alter that. Talk to clients about the alternatives degree of civility with the other parent. can the parents also agree that the ther- However, as family law attorneys to litigation. Provide clients with infor- Ask your client what they want apist will not be involved in the litiga- and pursuant to RCW § 26.09.002, when mation about conflict and the impact of their children to experience when their tion and that therapy notes, etc., shall there are children involved, we need to conflict on children, not only during the parents interact at their extracurricular remain confidential — meaning that nei- keep the interests of the children at the pendency of their family law matter, but activities, graduation events, college vis- ther parent will seek this information? top of the list of priorities for our cli- after it is concluded. Sometimes just this its or even during transitions between • Would the parents benefit from ents. Sometimes that calls for thinking bit of advice can help clients rethink how households under the parenting plan. meeting with a child psychologist to “outside the box,” working to decrease they wish to handle their case. How do they envision their child’s wed- discuss the needs of children at differ- conflict as much as possible, and educat- Understand that it can be difficult ding — do they want it to be one of cele- ent ages, development levels or when ing our clients so that they can do it too. for clients to think past the litigation and bration where their parents are involved? children have special needs? Be honest with your clients and be think about their future relationship with How about the birth of a grandchild? Be very direct with your clients prepared to talk with them about the the other parent once the litigation is over. Spend time with your clients discuss- about cooperation in the litigation weaknesses in the facts of their case and Clients are often focused on the reasons ing alternatives that might help reduce process and what the process actual- the limitations of the court system. Invest for the demise of the relationship and conflict related to their children. Some ly entails. There are many aspects of time in educating your clients about the fearful of the unknown future. Spend- of these other alternatives can include: process and provide information that ing some time with your client exploring • Would the involvement of a par- FAMILY LAW MATTERS will assist them in making decisions as how they envision their children’s future enting coach be beneficial? continued on page 32

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BAR BULLETIN September 2017 11 A New Environment for Climate Change Litigation

By Marina Cassio cases like it is worth watching closely mate, however, these cases may have that risk while not just failing to reg- as the federal judiciary reacts to the short-lived effect. ulate but indeed promoting and sub- (First of Three Parts) new administration.4 Today, other forms of litigation sidizing GHG emissions all the while. related to climate change may have a Following the denial of the motion ith the federal executive I. Background greater likelihood of directly affecting to dismiss, the departing Obama ad- branch backtracking from Famous climate change cases of industry in the near future. These may ministration took the opportunity to WObama-era climate change the recent past have tended to in- range from class action tort claims to admit most of the factual allegations programs, the judicial branch may be volve statutory disputes rather than National Environmental Policy Act in the complaint, including with re- increasingly receptive to novel forms of constitutional law or even common (NEPA) challenges against individual gard to the international consensus on climate change litigation. In Juliana v. law (e.g., tort) disputes. For example, projects to investor securities lawsuits.8 climate change science and the threat United States,1 a small group of young in Massachusetts v. EPA,5 the U.S. Su- Notably, across the full spectrum of that climate change poses to the pub- people and a climate scientist repre- preme Court first held that EPA has these cases, basic climate change sci- lic health and welfare of current and senting future generations are suing the authority to regulate greenhouse ence is generally readily accepted.9 future generations.13 It remains to be the federal government for violating gas (“GHG”) emissions under the Clean Though doubts about the funda- seen whether the new administration their asserted constitutional rights to Air Act. The Court later narrowed that mentals of climate science — the occur- will attempt to revoke those admis- a stable climate system. In November decision in Utility Air Regulatory Group rence of climate change and its cause sions. Industry intervenors have now of last year, U.S. District Judge Ann v. EPA,6 holding that EPA’s regulations by human activities — may still exist withdrawn from the case, largely to Aiken denied a motion to dismiss that reaching businesses exclusively on in the realm of the public discourse, avoid answering a request for admis- complaint.2 account of their GHG emissions were they are not often entertained by the sions regarding their agreement with In June, Judge Aiken fully adopt- not authorized by the Clean Air Act. courts. From NEPA documents to ju- the government’s admissions.14 ed the recommendation of Magistrate The pending case of West Virgin- dicial decisions, the international sci- The ideal outcome for the plaintiffs Judge Thomas Coffin to deny a related ia v. EPA,7 asks, among other things, entific consensus that climate change in Juliana would be for the court to motion for interlocutory appeal.3 Judge whether a previously unused section is happening, that it is both caused by declare a certain threshold for glob- Coffin had found that the merits of the of the Clean Air Act can support the and likely preventable through human al temperature increase or pounds of Juliana plaintiffs’ admittedly ground- Clean Power Plan’s requirement that activities, and that it presents an actu- carbon dioxide equivalent in the atmo- breaking claims were so strong that power plants bring about external al perilous risk, is taken seriously. The sphere, at which their constitutional the denial of the motion to dismiss was forms of energy savings, or possibly obstacles to judicial relief are a matter rights to a life-sustaining climate sys- not subject to reasonable difference of just shut down, in order to meet emis- of who can be held liable and who has tem are violated. The plaintiffs would opinion. sions targets. Back when EPA was the authority or responsibility to do then ask the court to order the govern- Both the denial of the motion to eager to stretch its statutory author- something about it. ment to figure out the extent to which dismiss and the denial of the interloc- ity to tackle the immensely complex Juliana represents a new type of the United States is contributing to the utory appeal represent an unusual ju- problem of climate change, these cas- climate change litigation, in which potential for crossing that threshold, dicial receptiveness to climate change es were potential game changers for claims are brought against the feder- and do whatever it takes to curtail that litigation. The fate of Juliana and other industry. In the present political cli- al government grounded in constitu- contribution. tional rights and/or the public trust For example, the court might find doctrine. The plaintiffs in Juliana that anything more than 2°C warm- are coordinated by a nonprofit orga- ing is a constitutional violation. EPA nization called Our Children’s Trust,10 might determine that the planet is ac- promoting a theory of the public trust tually headed toward 4°C warming, for doctrine most visibly advanced by which U.S. emissions will contribute Professor Mary Wood at the Univer- 25%. Congress, EPA, and other federal sity of Oregon.11 Our Children’s Trust agencies might then have to come up has brought a series of similar cases with a plan to reduce U.S. emissions by linked by their theory of the public whatever amount it would take, all else trust doctrine. So far, Judge Aiken (a being equal, to bring expected plane- graduate of the University of Oregon tary warming to 3.5°C (i.e., eliminate Law School) appears to be their most the country’s 25% contribution to the receptive audience. 2°C of extra warming). In November 2016, Judge Aiken In light of this structure, the po- denied the government and industry tential effect of the Juliana litigation intervenors’ motion to dismiss the on industry is fairly indirect — even plaintiffs’ complaint.12 The question at if the litigation were successful, there the motion to dismiss stage is wheth- would still be a lot of flexibility in how er, assuming all of plaintiffs’ factual the various parts of the federal gov- allegations to be true, the plaintiffs ernment brought about the necessary could possibly be entitled to legal re- emissions reductions. Nevertheless, if lief. Judge Aiken held that neither the the court-ordered emissions reduction standing doctrine, the political ques- is sufficiently substantial, assuming tion doctrine, the novelty of plaintiffs’ that Congress and the federal agen- asserted constitutional rights, nor the cies actually complied with the order, novelty of applying the public trust high-emission industries could expect doctrine to the federal government, significant economic effects whether should bar the plaintiffs’ claims at this in the form of higher taxes, stringent early stage. performance standards, prescriptive By denying the motion to dismiss, regulations, or penalties. Judge Aiken allowed plaintiffs to con- To understand the likelihood of tinue the lawsuit by seeking the factual success for the Juliana plaintiffs, it is evidence to support their claims on the necessary to consider each of the major merits. The key allegations the plain- legal issues that underlies the litigation. tiffs will seek to substantiate through discovery are: (1) that the federal gov- II. Standing ernment has known for decades that The standing doctrine — govern- climate change is caused by human ing whether a particular plaintiff has GHG emissions and presents serious risks to the American people; and yet CLIMATE CHANGE LITIGATION (2) that it has deliberately disregarded continued on page 13

12 September 2017 BAR BULLETIN navigate the legal landscape surrounding Change Litigation” — http://climatecasechart.com/ CLIMATE CHANGE LITIGATION poration and the harm was simply us-climate-change-litigation/. 21 environmental impact review, renewable continued from page 12 too tenuous and indeterminable, the 9 See William H. Rodgers, Jr. & Andrea K. Rodgers, new science might eventually lead to energy development, endangered Commentary, “The Revival of Climate Change Science “standing” to bring a particular lawsuit liability for an entity’s fractional share species and habitat protection, in U.S. Courts,” 6 Wash. J. Envtl. L. & Pol’y 534 (2016). 10 https://www.ourchildrenstrust.org/ — was initially developed by progres- of the damages.  water rights disputes, environmental remediation and cost recovery, and 11 See, e.g., Mary Christina Wood & Charles W. sive jurists in the minority during the product safety and stewardship. Woodward, IV, “Atmospheric Trust Litigation and early 20th Century “Lochner era,” in (Editor’s Note: We will continue the Constitutional Right to a Healthy Climate Sys- tem: Judicial Recognition at Last,” 6 Wash. J. Envtl. an attempt to prevent challenges to the standing analysis in next month’s 1 Case No. 6:15-cv-01517-TC (D. Or.). L. & Pol’y 633 (2016). progressive legislation.15 Since at least Bar Bulletin.) 2 Juliana, supra note 1, Order Denying Motion 12 Juliana, Order Denying Motion to Dismiss, the 1980s, however, the standing doc- to Dismiss (D. Or. Nov. 10, 2016). supra note 1. trine has served more to bar claims Originally published in the July 19, 3 Id., Order Adopting Recommended Denial 13 Id., Findings & Recommendation. of Interlocutory Appeal (D. Or. June 8, 2017); id., 14 Id., Order Granting Motions to Withdraw. brought by progressive organizations.16 2017 online issue of Marten Law Findings & Recommendation re Interlocutory Ap- 15 See Fairchild v. Hughes, 258 U.S. 126 (1922). The theory underlying the doctrine News. Reprinted with permission. peal (D. Or. May 1, 2017). 4 Editor’s Note: With respect to similar, ongo- 16 See Allen v. Wright, 468 U.S. 737 (1984). is that Article III of the Constitution ing litigation in King County Superior Court, see 17 Lujan v. Defenders of Wildlife, 504 U.S. 555, empowers the federal courts to decide Marina Cassio is an associate attorney “Turning up the Heat to Combat Global Warming,” 560 (1992). KCBA Bar Bulletin, January 2016 at 8: https://www. 18 See, e.g., Annie Sneed, “Yes, Some Extreme cases and controversies, not generalized in Marten Law’s San Francisco office. kcba.org/kcba/newsevents/barbulletin/BView.aspx Weather Can Be Blamed on Climate Change,” Sci- ?Month=01&Year=2016&AID=article18.htm; “Kids’ grievances regarding the enforcement Cassio earned her Juris Doctor, cum entific American (Jan. 2, 2017). For an extensive Climate Lawsuit Gets Even Bigger, Heads to Trial This catalog and map of events attributable to climate of the laws. Thus, the doctrine enjoys laude, from Harvard Law School, Year,” KCBA Bar Bulletin, February 2017 at 9: https:// change, see ClimateSignals.org (currently in beta). separation-of-powers significance in where she was an editor on both the www.kcba.org/kcba/newsevents/barbulletin/BView. Harvard Law Review and the Harvard aspx? Month=02&Year=2017&AID=article4.htm. 19 Juliana, Order Denying Motion to Dismiss, delineating which claims can be heard supra note 1. Environmental Law Review. Her practice 5 549 U.S. 497 (2007). by the federal courts, and which must 20 Bethan Gilroy, “A New Hope for Climate focuses on litigation, permitting, and 6 134 S. Ct. 2427 (2014). be left to the political process. Change Litigation: Holding Corporations to Account compliance counseling within the areas 7 No. 15-1362 (S. Ct.). for their Greenhouse Gas Emissions,” G.U.L.S. L. The standing doctrine requires of environmental, natural resources, land 8 For an extensive overview of all climate change Rev. (Feb. 16, 2017). cases brought in the United States, see Columbia that a plaintiff have: (1) a concrete use, and product law. She helps both 21 See, e.g., Native Village of Kivalina v. Exxon- Law School, Sabin Center for Climate Change Law Mobil Corp., 663 F. Supp. 2d 863 (N.D. Cal. 2009), and personalized injury, that is; (2) public and private clients successfully at Arnold & Porter Kaye Scholer LLP, “U.S. Climate aff’d on other grounds, 696 F.3d 849 (9th Cir. 2012). fairly traceable to the complained of conduct by the defendant, and that is; (3) redressable by the court.17 All three of these requirements have presented major hurdles for climate change litigation. The trouble with the concrete and personalized injury requirement is We protect that judges may feel that a particular plaintiff’s allegedly climate change-induced harm is too difficult to attribute what our clients specifically to climate change and/or too much like everyone else’s climate change-induced harm. But evolving value most. science is chipping away at these problems, providing plaintiffs with more and more tools to trace specific injuries to climate change, from rising sea levels to drought to tropical storms to failing fish populations.18 As more particularized injuries are linked to climate change, plaintiffs can point to the specific injuries that affect them in specific ways. In Juliana, Judge Aiken accepted plaintiffs’ allegations at face value, finding that such alleged injuries as algae blooms harming the local drinking water supply, heat waves damaging a For decades, McKinley Irvin has helped clients navigate through some of life’s most difficult family orchard, and decreased snow- challenges. Our attorneys, like prominent family law attorney Jennifer Payseno, are known pack shortening the local ski season for their relentless pursuit of successful results, whether representing individuals in high- all constituted fairly pleaded, concrete and personalized injuries resulting asset divorce litigation or negotiating complex property division. But perhaps our most from climate change.19 noted distinction is our steadfast commitment to protecting what our clients value most. The causation requirement presents two potential difficulties in most climate change cases. In actions against jennifer payseno, partner private entities, the difficulty thus far Second Vice President, King County Bar Association, 2017-2018 has been the idea that climate change Distinguished as a Washington Super Lawyer, 2010-2017 would still be occurring on almost exactly the same scale even without the Treasurer, King County Bar Association, 2013-2015 actions of any particular entity. How- Chair, King County Judicial Screening Committee, 2009-2010 ever, recent scientific advancements seem to have made it possible to cal- culate a single actor’s contribution to climate change. The new science is making it possible to say that a particular entity contributed a specific portion of the emissions leading to climate change, even at a fraction of a percent.20 While previous cases dismissed attempts to hold single corporations responsible 206.625.9600 | seattle | bellevue | everett | tacoma | vancouver | portland | mckinleyirvin.com for climate change harms, finding that the causal link between the cor-

BAR BULLETIN September 2017 13 Roll Your Own Reality

By Larry G. Johnson vast. A whopping 38 percent of U.S. that are very hard, or some say, impos- He has been having an ongoing, spirited There was a time when “crazy” was adults were prescribed opioids in 2015,2 sible, to tamper with. Bitcoin is just one debate with Mark Zuckerberg, creator of defined as “being out of touch with and the percentage has undoubtedly of many of its kind. There are over 900 Facebook, over this existential question. reality.” But in an age of “fake news,” increased since then. Are all of these of these invented forms of money cur- Musk makes the logical argument “virtual” reality and “artificial” intelli- patients in real pain or just bored out rently being traded against each other that once our techno-creatures become gence, you may ask yourself, “What is of their minds? and traditional national currencies.5 vastly smarter than us, we will be at real anymore?” Where can you go to stash some of their mercy. Looking at the rest of na- Plato and Jung thought reality was Sex these cyber coins in your pocket? No- ture and history, dominant species have something ideal and objective outside Sex robots are becoming a major where! You can buy “physical Bitcoins,” always exploited or eliminated lesser of ourselves that guided our experi- economic growth sector, particularly but they are simply cute, casino chip- ones. That is an ineluctable fact. ences of the world. On the other hand, in China where the “one child” policy like plastic containers within which Zuckerberg (whose name in Ger- postmodernists claim there is no reality led to a disproportionate number of the digital codes — the actual Bitcoins man means “Sugar Mountain,” appro- other than the one each of us invents boys being born, or rather allowed to — are embedded on a computer chip. priate for his optimism) thinks humans for ourselves; nobody has the authority be born, over girls. Sex robots are in- But then again, what is your bank who create the software to command to claim a superior version. creasingly becoming substitutes for hu- savings account other than some 1s and the robots will always have the upper But physicists do the philosophers man females there, as elsewhere, with 0s on a computer somewhere? Is it not hand. But he had a rather stark come- one better with the concept of a “mul- customers paying as much as $6,000 all that different from Bitcoins? uppance a few weeks ago when he tiverse” or “meta-universe.” There are, for top-of-the-line models that “learn” had to have his company shut down besides the universe that includes our what the owner likes, and the dolls can Machines, the No-Wage Workers two robots that began communicating little planet, 10 or 11 space-time di- even sing to the owner.3 The fight for minimum wages may to each other in a language only they mensions besides our own. Their exis- Feminists have long complained evaporate entirely as in industry after understood.8 How does Zuckerberg tence is required to fully explain all the about males’ objectification of women’s industry humans are being replaced explain that? physical laws and the constants used bodies, but now it looks like some men by “artificial” workers that can be reli- To all of this there may be a silver to describe them.1 are going straight for the objects. The ably counted on to work 24/7, without lining. If humanity comes to a point But with all these parallel univers- reality of dating, marrying, raising chil- lunch, rest or smoke breaks, and with where each person can create a unique es, do they all share a common “real- dren together, forming lasting partner- nary an HR problem. world to live in with everything he/ ity?” Or are there places where red is ships — hey, that’s just way too hard. One of the biggest U.S. workforce she wants, then that would seem to green and apples are oranges? Whether A subsidiary business stemming sectors, that of food servers and bar- eliminate most causes for conflict. We we will ever fully fathom any of this, from the sex-robot trade is also on tenders, is being severely eroded as ro- will become too busy with ourselves, one thing is certain: Mankind has prov- the rise: sex-doll brothels.4 But look bots come on line, programmed with our fake friends and our fake world to en itself enthusiastic in finding ways to on the bright side: with that, there is cute humanoid features to make them care about anything else. Billions of escape reality to avoid its harshness — less venereal disease, less exploitation entertaining. autonomous worlds will live blissfully or boredom. of women, less sex-trafficking slavery, Every form of human work is sus- unaware of one another. The consequences could be dire for and, perhaps, less rape. ceptible to replacement by robots. For Maybe that will give our species an- the survival of our civilization and for example, Sweden has just introduced other millennium or two of survival.  our legal system that serves as its first Money a 24/7 humanoid bank teller that can line of defense. Just count the ways: What is a dollar, really? It used to not only answer just about any ques- Larry G. Johnson is a lawyer in be backed by gold, but Nixon ended tion about your account, but “she” also Newcastle and a member of the WSBA Drugs that in 1971. Now it is like all the oth- does so with a pleasant and believable since 1974. He is a past chair of the One way to avoid the rigors of the er fiat currencies — a piece of paper personality.6 KCBA Law and Technology Section. real world is to obliterate your aware- or chunk of metal with art work and Besides being a litigator, for the past 20 ness of it. During the last election cycle, numbers on it. It is valuable only so Entertainment years he has served as a consultant and many people were surprised to learn long as people believe in it, very much We used to have Game Boys or expert witness in e-discovery matters. He is the founder of E-Discovery ADR that in supposedly idyllic rural commu- like a shared religion. Walkmans, cute little devices that gave (www.esi-adr.com), serving as joint nities in places such as Vermont and But given the way the Fed plays us some fun whenever we needed a dis- expert, mediator and special master in New Hampshire, addiction to opioids with the money supply and debt, many traction. But now we have smartphones e-discovery matters. had reached epidemic proportions. smart people are hedging their savings with all their instant communication But the problem is everywhere and with “cryptocurrencies” such as Bitcoin apps, omnivorous social media and 1 https://en.wikipedia.org/wiki/Multiverse interactive games. Smartphones have 2 https://ca.news.yahoo.com/more-third-us- turned us into a species whose thumbs adults-prescribed-opioids-2015-102126736.html? soc_src=social-sh&soc_trk=ma and downward-pointing heads will 3 http://www.dailystar.co.uk/news/latest- evolve as dominant features as we bet- news/634004/porn-star-asa-akira-sex-robot-asa- ter adapt to our 24/7 addictions to self. takigami-abyss-creations-wicked-real-doll 4 “From doll brothels to ‘robotic rape,’ the Probates The future: a device-free life where rise of sex robots raises ethical and legal di- you can remain perpetually in a holo- lemmas.” http://nationalpost.com/news/world/ graphic world of your own creation, from-doll-brothels-to-robotic-rape-the-rise-of- Trusts sex-robots-raises-ethical-and-legal-dilemmas/ a “real cloud” you insert yourself in wcm/57156ad1-a36d-4b9c-8c67-cf66d83f43c7 where you can be one of the actors in 5 https://en.m.wikipedia.org/wiki/List_of_ Mary Anne Vance Estate Planning “The Game of Thrones,” for example, cryptocurrencies [email protected] 7 6 https://www.bloomberg.com/news/articles/ rather than just a spectator. 2017-07-30/your-banker-is-always-in-sweden- rolls-out-the-robots. See also my article in the Bar Bulletin February 2017 issue, “When Will a Ro- Doomsday bot Replace You?” at https://www.kcba.org/kcba/ But nothing says anti-reality like newsevents/barbulletin/BView.aspx?Month=02& Year=2017&AID=article6.htm. Thoughtful, practical advice. the various scenarios where we become 7 Editor’s Note: I recently read a very forward- Dr. Frankenstein to the robot monsters thinking — and when you think about it, scary — we are now so joyously inventing. At short story contained in a science fiction compen- dium from the 1990s (it was an old paperback I first, the robots will “improve” our lives, picked up for a dollar at Half-Price Books). The main but it will not take them long before character, along with many others of his ilk, spent www.vancelaw.com most of his “real” time in a porta-potty, hooked up Kenneth L. Taylor they take over our lives completely. to a glucose drip, so he would not starve to death, [email protected] They will kill us, make us pets or put while he spent days at a time living in a “virtual Author of the Estate Planning reality” world of his own making. chapter of the Washington us in their own video games. And when 8 https://www.thesun.co.uk/tech/4141624/ Lawyers Practice Manual, 2017 that happens, they will be smart enough facebook-robots-speak-in-their-own-language/. Editor’s Note: Stephen Hawking is very con- to make us think we are still in control. cerned about AI, for a very good reason: http:// The Law Office Of Mary anne Vance, P.S. Will all our clever technologies be www.newsweek.com/stephen-hawking-warns- artificial-intelligence-could-end-humanity-332082. 901 fifTh avenue | SuiTe 1640 | SeaTTLe, wa 98164 | 206-682-2333 our ultimate undoing? Elon Musk, cre- And does anyone still remember HAL from “2001: ator of the electric Tesla car, thinks so. A Space Odyssey?”

14 September 2017 BAR BULLETIN Celebrating 60 Years of the KCBA Bar Bulletin

, ting. married has become more difficult now that Bar Talk through the Years: most local newspapers no longer have a “society” section. I once had a lawyer who had been A Peek behind the Curtain featured in “Lawyers in Love” call me because By Karen Sutherland she was concerned I As part of celebrating 60 years of would write about her the Bar Bulletin, our esteemed editor divorce, too. I told her no, thought a story about Bar Talk would but it could have made be a nice touch, so here you go (which secretary would type it on a typewriter. As far as I know, no one for an interesting column. is what I say to the editor in the email The practice of law has changed a misses them. Looking over old that accompanies my Bar Talk column bit since Bar Talk started and Bar Talk Unlike similar col- columns, I used to oc- every month). has changed too. Hardly anything comes umns in other local pub- casionally include a “Di- Bar Talk’s first appearance was in in the U.S. mail anymore. Now most of lications, Bar Talk does gression of the Month” the September 1982 issue, although as the information for the column arrives not include photos of section, which I have not noted elsewhere in these pages, the via email. I still put it in a folder and people who are featured done lately. Perhaps I’ll first issue of the Bar Bulletin contained dump it out on the dining table, but I in the column. The decision not to in- start doing that again if I can find some- Philip H. DeTurk’s “DeTurk, On Triv- have a smaller dining table than I used clude photos predates me, but I assume thing to digress about that isn’t related ia” column concerning various lawyer to with no room for separate piles, so I it is because we do not have enough to politics or some other divisive topic. moves and firm news. The author of developed a different system for organiz- space to run photos of everybody and One (February 2005) was about a giant the first two columns is lost to time, ing the column that takes up less room. whoever did not get to have their photo lava lamp that was going to become but since then there have been four I still dictate my column because included would not be happy with us. a featured attraction near Soap Lake, Bar Talk columnists that I am aware it’s what I am used to doing, but I now Speaking of photos, when people which had little to do with the law, but of: Bernie Friedman was the first, fol- use a nifty electronic recorder. In addi- meet me in person they often comment it was kind of interesting. lowed by Phil Cutler, Suzanne Barnett tion to information people send to me, on whether they think I look like my The oddest thing anyone ever said (before she became a King County Su- I look for news in local newspapers, Bar Talk photo. I do, sort of. Sometimes to me about Bar Talk was when a wom- perior Court judge), and yours truly.1 newsletters, LinkedIn, Twitter, firm I wear glasses that are not in the pho- an told me that Bar Talk was her father’s What does it take to be a Bar Talk web pages, events I attend, and word to and people will comment on that, favorite thing to read and that he had columnist? When I applied for the Bar of mouth. as if I was being sneaky or something. asked to be buried with a copy of the Talk job, my qualifications for the po- When Bar Talk began, the Bar Bul- Bar Talk used to be longer and in- Bar Bulletin. I hope she was kidding, sition were that I liked getting mail, I letin used black and one other color cluded more information about where at least about the burial part. wanted to know what was going on in for the front page and the other three people went to school, which caused The hardest part of Bar Talk is the legal community, and I was willing pages that were printed on the same an ongoing debate about the grammat- coming up with something to say at to write a monthly column regardless page plate (the same sheet of paper). ical correctness of the phrase “gradu- the beginning of each column. When of what else was going on in my life. I The rest of the paper was just one col- ated from” and the use of “U-Dub” to I can’t come up with anything else, I suspect I was the only applicant, as I or — black — unless someone bought refer to a well-known local university. write about the weather. Still, I look was selected without an interview. My an advertisement that had color in it. At some point, we decided that our forward to writing the column every first column was in the September 1993 When our publisher at that time (Rotary readers probably are not particularly month.  issue, which means I have written 290 Press) moved to a new, full-color press interested in knowing where everybody columns so far. in 2002, we started using full-color pho- went to school, so most of the infor- Karen Sutherland is the chair of the When I started writing Bar Talk, tos and color in graphics. mation about education is no longer Employment and Labor Law Practice most of the information for the column To celebrate, the editor changed the included, which effectively ended the Group of Ogden Murphy Wallace, PLLC, arrived by letter or by phone. I would masthead and updated the little graphics grammar debate. chair of the King County Bar Association drop each item in a redwell folder when that ran with some of the columns. For Bar Talk also used to have an occa- Bar Bulletin Committee, and Bar Talk it arrived. Once a month I would dump Bar Talk, that meant a full-color photo sional section called “Lawyers in Love” columnist. She can be reached at the folder out on my dining table, sort it of my smiling face and a colorful graphic that featured people in the legal pro- [email protected]. into piles, and dictate the column on my of people sitting on bar stools. At some fession who married others in the legal 1 I admit to not reviewing every issue to see if trusty Lanier Time Commander (harvest point, the people on the bar stools wan- profession, but getting information about there was someone I missed. If there have been gold, with big, round dials) and then my dered off and have not been replaced. the occupations of people who are get- others, I apologize for not naming them.

 Many of the Bar Bulletin’s editors, past and present, gathered at the KCBA office on August 15 to celebrate the Bar Bulletin’s 60th birthday. From left, seated: Anne ,.Northrup and Amy Stephson. Standing: Stew Cogan, Carole Grayson, Karen Sutherland, Cynthia Whitaker, Gene Barton, Caroline Davis, Bob Anderton, and Andrew Maron.

BAR BULLETIN September 2017 15 .

Issue BAR BULLETIN First ,

16 September 2017 BAR BULLETIN . AUGUST 1957 1957 AUGUST ,

BAR BULLETIN September 2017 17 60 YEARS continued from page 1

Paul, Todd and Fetterman as an associate; and Leonard Schroeter had hooked up with David Weyer, David Roderick and Rickie Stern to form a new firm. The first editors in chief were Betty B. Fletcher, whom you should remember as an icon of the bench and bar, and Louis H. Pepper, whose name still graces one of our city’s finest law firms. They greeted the membership as follows: We do not seek to outwhoop Rupp.1 He has his rag and we have ours. We don’t feel the urge to jazz up the commonplace. Facts are facts, as the supreme court says, and we won’t touch them. Thusly we launch Vol. I, No. 1 of the Seattle Bar Bulletin, with nothing smashed across our b(r)ows, but plenty across our sterns by the prexy. Our hope is to bring to members of the Seattle Bar all the essential business of the Seattle Bar Association. We want to be read and will go to al- i.e., the “taking place now and then” of the under-swooping ‘e’ in Bulletin, Today, the Bar Bulletin is printed in most any length to achieve our goal. definition — in “periodical.” until June 2002. Not even I can stick one section, generally comprising 32 pag- So, interspersed with the deadlier The Bar Bulletin got a new look in around that long. es, i.e., more meaningful content. STP no facts, we want to bring you tidbits 1967, with Brian L. Comstock as editor, The format changed again in Jan- longer handles production duties (but its of news and information and humor changing from a 4- to 6-page issue on uary 1978 to white, glossy stock with Rotary Press wing still prints the paper), of peculiar interest to the local bar. glossy stock to a 4- to 6-page issue on a blue nameplate. The first 12-page is- since KCBA took the BB in-house sev- I stand on the shoulders of giants. blue bond, with a two-column look in- sue debuted that month along with a eral years ago and now contracts with a Not only did the August issue mark the stead of three columns. Four to six issues front-page feature. In that issue, Gary Portland company to provide the profes- Bar Bulletin’s 60th birthday, but it also a year were the norm through the ’60s. Wolfstone wrote about the plague of sional product you receive each month. was the first issue of my 13th year as ed- In the groovy ’70s, this teenager got child abuse. Other articles that year fea- Like any media product, we have itor. That makes me the longest-tenured another makeover. Gone was the blue tured then-City Attorney Doug Jewett changed our look over the years, but editor in Bar Bulletin history and I plan stock, replaced by a lighter look, and and then-Superior Court Judge Barbara have settled into a comfortable standard to keep on going for a few more years. it grew to 8 pages, yet still letter-sized. Rothstein, which were the forerunners that fits like an old pair of shoes. About Much has changed over the de- The masthead — the information box of today’s monthly Profile. the only thing that differs from issue to cades. Those first baby steps were a you find in this issue on page 2 — dis- Those front-page features were re- issue, other than the content and the ads, bit stumbling and sporadic. There are appeared and did not return for years. placed in January 1980 in favor of articles is the color scheme on the front page. gaps in the KCBA archives and there September 1976 brought another of law-related substance. In September We hope you enjoy this journey were gaps in the publishing schedule. format change and the young adult was 1982, under editor William Weinstein, down memory lane as much as we have It was many years before the Bar Bul- sporting pale yellow bond across 8 pag- the Bar Bulletin started to evolve into enjoyed paving the way for you over letin became a steady, monthly effort. es of the same old, basic “club level” what you see today. That month was the the decades. Here’s hoping the next In December 1960, it was the Seattle- information and notices, i.e., very little first tabloid-sized issue: 28 pages in two 60 years are as good as the first 60!  King County Bar Association Bar Bulle- in the way of substance unless a judicial sections, with a cartoon by Pulitzer Prize 1 The memoirs of John N. Rupp (pronounced tin. The editor then was Irving Clark, Jr., election was at hand. But that also was winner David Horsey highlighting the Roop) have been published in the Bar Bulletin since and the format hadn’t changed. There the month when the blue, cursive-style front-page feature; he continued provid- April 2011. In August 1957, he had just completed his one-year tenure as president of the Seattle Bar were four issues published in 1962 and nameplate was introduced across the ing cartoons until May 1984 (probably Association. Apparently, he was still writing an SBA 1963, though not exactly quarterly; top of the front page. It would remain when the SKCBA could no longer afford “rag” at the time. three in 1964. It put the “periodic” — in place, with nothing more than a trim him). The first installment of what today is the monthly Profile featured “Bud- Bar Bulletin ding Actor and Virtuoso Trial Attorney” Editors 1957-1959 Betty B. Fletcher & William Dwyer. The masthead also re- Louis H. Pepper turned after a decade’s hiatus. 1960-1961 Irving Clark, Jr. The Bar Bulletin switched from 1962 Richard S. White white stock to newsprint in Septem- 1963-1964 Leon L. Wolfstone ber 1988. It switched format to a one- 1964-1966 Richard L. Cleveland section, 32-page issue in December 1966-1968 Brian L. Comstock 1989. In April 1993, it officially became 1968-1970 John L. Weinberg the King County Bar Association Bar 1971 Elizabeth Bracelin Bulletin when “Seattle” was dropped 1971-1973 Hugh McGough from the bar’s name. It split back into 1973-1974 Marjorie Rumley two sections in June 2002. 1974-1976 Jack Burns When I started as editor in 2005, 1976-1977 Laurie Kohli the Bar Bulletin was printed in two sec- 1977-1978 Gary Wolfstone tions and comprised 24 pages. Seattle 1978-1979 Anne Northrup Times Publishing handled production 1979-1981 Stew Cogan duties and, as it still does today, print- 1981-1982 Christopher Hall ed the paper. In February 2006, when 1982-1983 William Weinstein The Seattle Times reduced the size of 1983-1985 Cynthia Whitaker its paper and, therefore, what could be 1986-1988 Caroline Davis handled on its press, the Bar Bulletin 1988-1991 Marc Lampson got “smaller” as well, shrinking from 1991-1995 Carole Grayson 17½ inches from top to bottom, to 15 1995-2001 Amy Stephson inches. We also added a new name- 2001-2005 Robert Anderton plate across the top of the front page, 2005-present Gene Barton Advertisement originally published in the January 1985 issue of the Bar Bulletin. and again returned to a single section.

18 September 2017 BAR BULLETIN crowd that it reminded him why he became a lawyer and kept him in check. A Decade of Reality Checks I promised myself that I would do the same, but guess what … I never did. By Amy Kahler collegial, supportive or responsive, but on how to make tough decisions after I dusted off my little copy of the “Happy Bar Birthday! 10 years ago, they were. I didn’t expect invitations to they’ve been dealt a health blow, it’s U.S. Constitution and reread the RPCs you passed the bar,” was the message I coffee when I said I was new in town never time wasted. Our neighbors are on this 10-year anniversary. “The con- received when opening my email. My and needed help. I didn’t expect my fel- asking for help and they are scared to tinued existence of a free and democrat- first thought was, “Has it really been low section members to trust me with ask, but we are privileged to know the ic society depends upon recognition of 10 years?” their clients and let me help with their answers. the concept that justice is based upon I thought back to my time in law cases. I didn’t expect connections to I didn’t expect the sense of respon- the rule of law grounded in respect for school. What did I think my life as a other resources out of a mutual respect sibility for the people in my commu- the dignity of the individual and the ca- professional attorney would look like for building the profession. nity, but once I realized I was one of pacity through reason for enlightened back then? What were the lessons I I’m no longer a solo practitioner, the few who could contribute, it was self-government,” states the opening of learned and what is there still to learn? but without making those difficult first unexpectedly rewarding. the Fundamental Principles of Profes- What were the promises I made to my- steps I never would have gotten those sional Conduct from the Washington self and which ones did I keep? initial boosts from my colleagues and Old fashioned manners Rules of Professional Conduct. eventually found my place. go a long way. These are simple truths, rooted in Other attorneys are Send thank-you cards. Send flow- respect for the law, our fellow humans your best resources. Don’t just volunteer for ers. Introduce yourself. It’s a small in- and the system that we have taken an When I started as a solo practitioner the résumé, do it for the soul. vestment of money and time, but it’s oath to uphold. Being a lawyer isn’t just early in my career, I thought I could do I’ve never regretted the time I’ve worth the value that comes from vali- a job, it is part of a critical institution it all on my own. I pictured myself be- spent in my community donating my dating a relationship. in our society and form of government. hind a giant mahogany desk, surround- time. Like most go-getters, I thought Talk is cheap and sending a mes- And while that sounds rather academic, ed by law books and dim lighting with volunteering was only for boosting the sage to the other party demonstrates when you see the real consequences little thought as to how I’d get there. résumé. However, after spending time that, not only was their effort valuable that can result from bad lawyering or The reality was, clients didn’t appear volunteering with various organizations, to you, but it was time appreciated. It unfair court decisions or bad laws, and out of thin air and even if they did, I I’ve learned that the people who we also sets a tone for the relationship go- you can act to correct those problems, wouldn’t know where to start. I couldn’t pass on the sidewalks and view from ing forward. you understand what that role actually achieve my vision without getting a our cars, who serve us in coffee shops I received some valuable advice at means, and it is satisfying. foothold in the industry, and I had to and live next door are not strangers, but a networking event from a fellow attor- It’s the why, not the how. Inspired start asking for help. are part of a community in which we all ney who told me that she always picks by vision and grounded by truth, this I learned how to network and how have a responsibility to preserve. Volun- up the phone and introduces herself reality check is a good reminder of the to ask for what I wanted. I read books, teering is not about winning awards or when faced with an opposing counsel reason we started this journey. With a I sat in courtrooms observing and tak- accolades; it is about feeding your soul. she’s never worked with before. At first simple Outlook recurring appointment, ing notes, and I placed myself in a lot Whether it’s meeting with a strang- I thought this seemed counterintuitive, that’s one promise I will keep. of awkward situations. er about this thing called a “summons” but breaking the ice and setting the After 10 years, I’ve learned that ex- I didn’t expect other attorneys to be that they received or advising them tone between parties can go a long way pectation and success don’t follow the toward establishing mutual professional same path. Every challenge, stumble, courtesy for the duration of the case. investment and risk was worth the ex- One can be an aggressive litigator perience, and I hope that over the next and yet keep things cordial; there’s not 10 years I can appreciate wherever my much to be gained by getting person- path takes me.  al. It’s a habit I’ve put into practice and I’ve never regretted the time I’ve spent reaching out, even when rebuffed. Amy Kahler is an associate at the Law Offices of Susan Carroll, PLLC in West Seattle. Kahler is a Pacific Northwest Reread the U.S. Constitution and native and attended Seattle University RPCs on every bar anniversary. School of Law, Class of 2005. She will This was a promise I made to my- even pick up the phone and happily self upon the advice of my Con Law take an introduction, so reaching out is professor at graduation. He told the invited and welcomed.

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BAR BULLETIN September 2017 19 2017 2018 King County Bar Leadership Association Executive Committee

Andrew W. Maron Jennifer Payseno Floyd Short President Second Vice President Secretary – Trustee Short Cressman & Burgess PLLC McKinley Irvin Susman Godfrey

Harry M. Schneider Donald Scaramastra First Vice President Treasurer Perkins Coie LLP Garvey Schubert Barer

Association Trustees

Bree Karen Orehoski James Clark Kame’enui-Ramirez Lee Thomas Breneman Grube Oseran Hahn Weyerhaeuser Harpold Thomas Orehoski PLLC Company

Erin Overbey Clayton Graham Sidney Tribe Shawn Larsen-Bright King County Davis Wright Talmadge Fitzpatrick Dorsey Whitney LLP Prosecutor’s Office Tremaine LLP Tribe Civil Division

Marcus Naylor Robert Hyde Michael S. Wampold King County Raegan Rasnic WA Attorney Peterson Wampold Department Skellenger Bender PS General’s Office Rosato Feldman Luna of Public Defense

KCBA Committee Chairs

Bar Bulletin Judicial Officer Survey MLK Luncheon Co-Chair Karen Marie Sutherland Carl Forsberg Hon. Richard Jones Ogden Murphy Wallace PLLC Forsberg & Umlauf PS U.S. District Court

Bar Bulletin Editor Judiciary & Litigation Co-Chair MLK Luncheon Co-Chair Gene Barton Jane Morrow Karen Murray Karr Tuttle Campbell Otorowski Johnston Morrow & King County Department Golden PLLC of Public Defense

Continuing Legal Education Jason Hanson Robert A. Underhill PC Judiciary & Litigation Co-Chair Neighborhood Legal Clinics Brett Hill Danielle Shaw Ahlers & Cressman PLLC Washington Environmental Council Diversity Hon. Patrick Oishi King County Superior Court Pro Bono Services Lawyer Referral Service Carl Marquardt Kristy Stell Lish Whitson PLLC Law Office of Fair Campaign Practices Carl J. Marquardt PLLC Theodore Angelis K&L Gates LLP

Leadership Development Public Policy & Nominations Judicial Candidate Evaluation Neal Black Steven R. Rovig Co-Chair - John Bender Adkins Black LLP Hillis Clark Martin & Peterson PS Ryan Swanson & Cleveland PLLC

Judicial Candidate Evaluation Membership WLPM Editor Co-Chair - Janice Wang Paul Crisalli Peter Talevich Gordon & Polscer LLC WA Attorney General’s Office K&L Gates LLP

20 September 2017 BAR BULLETIN KCBA Section & Division Chairs

Labor & Employment Law ABA Delegate Collaborative Law Jennifer Robbins Kathleen Hopkins Carol Betts Schwerin Campbell Barnard Real Property Law Group Carol D. Betts Family Law LLC Iglitzin & Lavitt LLP

Alternate Dispute Resolution Donna Lurie Environmental & Land Use Law Real Property, Probate & Trust Lurie Workplace Solutions Joe Terrenzio Joshua Rosenstein Washington State Bar Hanson Baker Ludlow Association Drumheller PS

Appellate Practice Jessica Skelton Pacifica Law Group Solo/Small Firms Family Law Lauren Burgon Nicole Wagner Law Office of Nicole M. Wagner PLLC Lauren Burgon PLLC Aviation Law Christopher C. Jacob Paramount Law Group

Guardianship & Elder Law Solo/Small Firms Miriam Ayoub Darcel Lobo Bankruptcy Law Law Office of Michelle Lynn Dal Law Firm Steven Reilly Graunke The Tracy Law Group

Business Law Intellectual Property Young Lawyers Division Deirdre Glynn Levin Tim Billick Kelli Rodriguez-Currie Hackett Beecher & Hart Mann Law Group Seattle University

Foundation Executive Committee

Eric P. Gillett Todd R. Bowers Jeffrey G. Frank President Vice President Secretary Preg O’Donnell & Gillett WA Attorney General’s Office Foster Pepper PLLC

Kathleen T. Petrich Kelly Noonan Immediate Past President Treasurer Attorney at Law Stokes Lawrence PS

Foundation Trustees

Hon. Bruce Hilyer (Ret.) James Austin Charles Riley Pallavi Mehta Wahi Hilyer Dispute Karr Tuttle Campbell Lane Powell PC K&L Gates LLP Resolution

Derek Crick R. Gregory Kipper Averil Rothrock James F. Williams Ryan Swanson & Navigant Schwabe Williamson Perkins Coie LLP Cleveland PLLC Consulting, Inc. & Wyatt PC

Mark T. Fordham Hon. John R. Ruhl Steven Miller Louie Wu Starbucks Coffee King County Miller Nash Graham FTI Consulting Company Superior Court & Dunn

Jessie L. Harris Vanessa Power Scott Smith David A. Zapolsky Williams Kastner Stoel Rives LLP Attorney at Law Amazon.com

BAR BULLETIN September 2017 21 right according to the law. When the decision is made by Judge How Real Is ‘Judge Judy’? Judy, there is no choice to challenge her decision because her decision is final. By Antoine Josh Omar an iconic “reality” courtroom show. the morning while I waited for the school How is your summer going? My Watching “Judge Judy” may be the bus. I was so intrigued. Not because of Actors summer has been really great. In- primary — or only — experience that Judge Judy, herself, but the cases.1 In order to guarantee a courtroom terning for Ogden Murphy Wallace non-lawyers have with civil law. Law- Each case is so different and I full of people, the “Judge Judy” produc- has been such a pleasure so far. I am yers who have been practicing for years would want to see how Judge Judy han- ers hire aspiring, paid actors from an thankful to have an opportunity to may want to understand how “Judge dled it. There are many types of cases audience service. On occasion, the au- work with such great people. Everyone Judy” affects a non-lawyer’s perception on the show, such as torts, contracts, dience is seen laughing at Judge Judy’s has been so welcoming and helpful. of the legal system. This article provides landlord-tenant, relationship disputes remarks, but for the most part, the audi- I’ve been exposed to so much; I will that perspective. and more. Each case is submitted ence isn’t supposed to make any noise not take it for granted. I’d especially through the “Judge Judy” website and and, unlike other court shows, may not like to thank Karen Sutherland, my The Cases Are Real the producers choose the ones to present acclaim the judge or the disputants for mentor, for giving me the opportuni- I can remember watching “Judge and air.2 If your case is chosen by the making excellent comments. ty to take you behind the scenes of Judy” on my local CBS channel early in producers, you’ll receive a letter asking Tickets aren’t offered for the show, you to call as soon as possible for the but the producers can make arrange- possibility of having your case heard ments for fans to be a part of the audi- Passionate. Creative. Problem Solvers. by Judge Judy on national television.3 ence. The extras are not supposed to wear logos or brand names, and must It’s Arbitration, not dress casually.4 Not a Judicial Proceeding When I was younger, watching Plaintiff and Defendant “Judge Judy,” I easily thought that As I mentioned before, when your was a how a judicial proceeding was. case is chosen, you will receive a letter In actuality, it is an arbitration-based from the producers informing you that show. Judge Judy is given evidence from both the plaintiff and defendant; JUDGE JUDY then has to decide who and what is continued on page 23

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22 September 2017 BAR BULLETIN cost — taking time off work to drive the equivalent of four trips through 25 Passing Up ‘People’s Court’ miles of downtown Seattle traffic — and declined. By Bill Roberts become one of her favorite pastimes. Jerry Sheindlin is the husband of Judy In an anticlimactic ending, I won Many years ago I took my young Having had several good, small Sheindlin, aka Judge Judy. by default and received a check in the daughter for her first ride on her new, claims court experiences under my belt, “People’s Court” was the first tele- mail three weeks later. The radiator full-sized, 10-speed bicycle. The garage including a Realtor, a radiator repair vision program using real plaintiffs and repair shop mentioned earlier wasn’t was behind the house with access to a shop, and an auto paint shop, I decid- defendants in a simulated courtroom as easy though. Although it defaulted, paved alley on a slight incline, so we ed to sue the cable company in small setting. The “People’s Court” caller I had to take the initial steps toward started by going downhill and enjoyed claims court in the nearby Torrance explained that funds in the amount of having a sheriff’s deputy hold his hand a great first ride, and reentered the al- Courthouse, part of the Los Angeles twice my suit would be set aside in an in front of the till until my judgment ley on the uphill end. Superior Court, for the replacement account. Any judgment would come was satisfied. Unfortunately, I hadn’t yet taught costs of the bicycle and glasses. from that fund and the balance would And, coming back to “Judge Judy,” the her how to jump curbs and other irreg- A few weeks before the trial date, I be split equally between the parties. interview process described above allows ularities, and the local cable company received a phone call asking if I wanted I was interested so far. Both parties the producers to select the zaniest partic- had left a poorly patched trench across to be on “People’s Court.” This was in would have to agree to the terms and ipants in an attempt to boost ratings.  the alley where it had buried a neigh- the days of the original “People’s Court” go to Hollywood for interviews to see bor’s new cable line. The trench caused with retired Los Angeles County Supe- if our suit would be accepted. Actual Bill Roberts, PE, CSFA, is an occasional contributor to the Bar Bulletin. He is my daughter to fall, breaking her glass- rior Court judge and part-time boxing taping would be at a later date. a Washington licensed professional es and bending the frame of her brand referee Joseph Wapner, later succeed- Having a strong engineering back- engineer (18.43 RCW) doing electronic new bicycle. Fortunately, there was only ed by (yes) Ed Koch, Jerry Sheindlin ground, I did a quick cost-benefit anal- discovery, computer forensics minor bruising and bicycling has since and Marilyn Milan, years before imi- ysis, weighing the expected value of and data recovery. His website is tators such as “Judge Judy” and “Hot the benefits of “People’s Court,” about cleardataforensics.com. He welcomes Bench.” It is interesting to note that an additional 50 percent, against the questions at [email protected]. JUDGE JUDY continued from page 22

you’ve been selected and that the producers want to air your case. In the letter, it discloses that the plaintiff’s, Courage defendant’s and witnesses’ travel ex- ('K�r-ij) noun penses will be paid for by the producers. Also, the plaintiff and defen- Strength in the face of pain or grief. dant are guaranteed an appearance See also Spike Kane. fee of $500. If a case is selected to be arbi- trated and the plaintiff wins, the producer guarantees to pay the full amount that was awarded against the defendant and the defendant pays nothing.5 In this case, it’s a win-win situation.

Popularity Beyond what is happening behind the curtains, “Judge Judy” remains one of the most popular, if not the most popular, courtroom shows on the air. It holds many accolades to Spike Kane was a marine carpenter and its name, such as winning the Day- an avid sailor, surfer, and outdoorsman time Emmy for Outstanding Legal/ Courtroom Program in 2013 (upon when he suffered a thoracic level spinal its 15th nomination), leading the cord injury in a motorcycle vs. SUV ratings in courtroom programming collision. Spike has never let the injury in the United States from its third (1998–99) through fifth (2000–01) stop him from enjoying a full and seasons, and being the highest-rated, physical life. daytime television program in syndication for the 2009–10 season.6 

Antoine Josh Omar is a junior at Highline High School and a Running The best part of our practice is that we are in the company of courage every day. Start student at Highline Community We would appreciate the opportunity to help you help your client. College. He was a summer intern at Ogden Murphy Wallace, PLLC, and he plans to become a lawyer.

1 Editor’s Note: “Judge Judy” is former Manhattan Family Court Judge Judy Sheindlin. The show is celebrating 21 years on the air this month: https://en.wikipedia.org/wiki/Judge_Judy 2 http://www.judgejudy.com/submit_your_case 3 http://kfor.com/2015/08/21/letter-from- judge-judy-explains-how-people-appear-on- show/ 4 https://en.wikipedia.org/wiki/Judge_Judy 5 http://kfor.com/2015/08/21/letter-from- judge-judy-explains-how-people-appear-on- show/ 6 http://www.thefutoncritic.com/ratings/ 2010/09/20/judge-judy-kicks-off-15th-season- www.johnsonflora.com 206.386.5566 2505 2nd Ave, Suite 500 Seattle, WA 98121 as-the-number-1-daytime-show-in-syndication- 570011/20100920cbs03/

BAR BULLETIN September 2017 23 Escape from Reality: Hawaiian Vacation, Part 1

roll” (spicy crab, cilantro, cucumber, who want more spice. We also sampled rom Kauai, we jetted over to avocado); grilled eggplant; deep-fried the “Lau Lau” and “Kalua Pig Combo the Big Island to Kona Kitchen tuna roll; and a shrimp cake. The Takah Plate” lunch with Lomi salmon, choos- F(8501 Fifth Ave. NE; 206-517-5662; roll was excellent. ing the slightly less authentic, fried-rice http://konakitchen.com/), for a calo- There was a wide variety of tiki- option over traditional white rice. rie-packed dinner in north Seattle. To style cocktails on the menu sporting As you may already know, a Ha- start, we ordered the spring roll appe- ingredients such as lemongrass, pine- waiian plate lunch comes with rice, tizer. Spring rolls at Kona Kitchen are apple, passion fruit and coconut. We macaroni salad and one or two en- extremely crunchy on the outside and t is time to escape from reality and skipped these options, instead electing trées (https://en.wikipedia.org/wiki/ soft on the inside; just how we like go on vacation to Hawaii, or at least to drink beer and sake. The Island Hop- Plate_lunch). We were cautioned by them. They came to our table straight Ito Hawaiian-themed food establish- pin’ IPA turned out to be from Orcas our server that the Lomi salmon was from the kitchen. We recommend wait- ments. There are many to choose from Island, not the Hawaiian Islands. Spam authentic and an acquired taste. It was ing for them to cool off a bit before you locally without the airfare or the jet lag. was absent from the menu. and we liked it. We especially enjoyed take a bite. There are so many we already know Overall, the food, service and de- the very flavorful pork and the mac- For our entrées, we tried the Hawaiian- this article will have a sequel. cor were all pleasant, and this is a aroni salad, which was light, without style barbecue chicken and the chicken Nearby, we revisited Sansei Sea- great place to gather with the mates excessive mayonnaise. Katsu, both of which come with sides of food Restaurant and Sushi Bar (815 after work for a quick bite. The loca- After our meal, we dropped by rice and macaroni salad. The sauce was Pine Street; 206-401-4414; http://sansei tion, right across from the Paramount the adjacent Cakes of Paradise (6322 evenly and lightly spread onto the chick- seattle.com/. Sansei is a Hawaiian chain Theatre, also makes it convenient for Sixth Ave. S.; http://www.cakesof en, which was cooked to a moist, slight- with restaurants in Kapaulua, Kihei, a pre-show meal. paradisebakery.com/), a separate-but- ly chewy texture. The chicken Katsu Waikiki, Waikaloa and Seattle — its or really authentic Hawaiian related establishment, connected by an featured a delicious, crunchy panko on first foray to the mainland. Sansei styles food and atmosphere, journey internal door, where we picked up a the outside and moist chicken on the in- itself as a “new wave” sushi restaurant Fsouth to Kauai Family Restau- rainbow cake to go. It has three layers side. The macaroni salad had a heavier- and is open for happy hour and dinner. rant (6324 Sixth Ave. S., just south of of cake — strawberry, lime and orange than-usual amount of sauce, but was We visited for happy hour on a Spokane Street); 206-762-3469; https:// — and is frosted with guava, lime and delicious all the same. Thursday and sat in the patio area www.facebook.com/kauaifamily passion fruit. Kona Kitchen is housed in a sim- by Pine Street. The happy hour has restaurant/?rf=194764880551229%20 The bakery has recently expanded, ple concrete building, but the inside is changed since we last visited and is no %E2%80%8E) for a friendly and fun doubling its retail space and adding a comfortable, well-lit and pleasant. We longer simply half-off all food items as breakfast (served all day), lunch or full hot-beverage line. Look for them enjoyed listening to Hawaiian music with the happy hour in Hawaii. San- dinner. to be offering a separate breakfast or while staring at the cake menu, wonder- sei Seattle has a separate happy hour We tried the “Breakfast Musubi,” lunch menu in the near future. There ing whether we had room for dessert. menu. We ordered a variety of rolls and which was Spam and egg [“It doesn’t was a lot left on the menu for us to try The meals were large, so this time we hot dishes, including the “Takah Sushi have that much Spam on it.”], over rice at both establishments and we plan to special roll” (shrimp, tuna, crab, avoca- and wrapped in nori; it can also be or- make this a regular haunt when we are DINING OUT do, cucumber, masago); Sansei “Special dered with Portuguese sausage for those on the south side of town. continued on page 25

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24 September 2017 BAR BULLETIN DINING OUT conut chutney and goat’s milk yogurt, popcorn that has been strained after again, and probably to try some of the continued from page 24 and featured little shards of puffed rice soaking for a day and refrozen resulting pupu appetizers like the Spam musu- cake. The poke features ogo seaweed, in a delicious frozen, salty, sweet treat. bi and pork sliders. We also tried the took a pass. Next time, we look for- sesame, macadamia nut, shoyu and It is the perfect finish to one of the best touring Hawaiian-themed mixed drinks, ward to trying their rainbow cake with chilies. The ahi was fresh and mari- fried chicken dinners in the city. sampling the “Lava Flow,” mai tai, “Hur- strawberry, orange and lime layers and nated with the perfect combination of t the end of our Hawaiian “food- ricane” and hibiscus mai tai. The mai whipped topping. soy and sesame. yssey,” we returned to Coast- tai and “Lava Flow” do not stick to t is highly recommended to make a The fried chicken is simply deli- Aal Kitchen (429 15th Ave. E.; their original recipes, but a couple of reservation at Ma’ono Fried Chick- cious and easily some of the best fried 206-322-1145; http://coastalkitchen the “Hurricanes” will help you forget Ien and Whiskey in West Seattle chicken we have ever had. It is well sea- seattle.com/ ), for its 104th rotating all about that. (4437 California Ave. SW; www.maono soned and perfectly cooked; the meat menu, which is “Visiting Hawaii” until Hawaiian food has become a pop- seattle.com). And not just for your ta- is tender and juicy as it is soaked in November. ular local theme and our escape from ble, but also your food; you will need buttermilk for 24 hours; and for added We tried the “Huli Pork,” a soy reality will continue with another col- to reserve either your half order (per- crispiness, it is fried twice. The chick- ginger-marinated bone-in pork loin with umn’s worth of Hawaiian fare soon.  fect for two) or full-bird order at least en comes with your choice of either grilled pineapple kimchi; the “Misoyaki 24 hours in advance. We reserved our chili or honey mustard sauces, sticky Butterfish,” a black cod with a sweet Schwabe, Williamson & Wyatt is a bird when making our online reserva- rice garnished with nori seaweed and marinade of miso and sake over an un- multiservice, Northwest regional law firm with offices in Seattle, Vancouver, tion. Lucky we did, because around 8 some of the most delicious kimchi that usually flavorful bed of purple potatoes, Portland and Bend. For comments on p.m. this Hawaiian-inspired restaurant we have ever had. pineapple and onions; and our out-of- this article or to share your favorite sold out of chicken. To finish our dinner, and after con- town guest just could not resist getting places to eat or drink with the Schwabe, We started with “Ahi Limu Poke” sultation with our server, we decided the fresh local salmon (always good). Williamson & Wyatt attorneys, contact and sesame-flecked carrots. The car- on the famous popcorn ice cream for We liked everything, but will defi- Christopher Howard at 206-407-1524 rots were prepared with coriander, co- dessert. The ice cream is poured over nitely return to have the pork loin or at [email protected].

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BAR BULLETIN September 2017 25 had an interesting conversation with firm’s Labor and Employment Practice another artist recently when we Group. Hardwick advises employers Iwere both working at an arts event. and executives on matters such as un- She is curating a project that includes fair labor practice charges and collec- artists’ bucket lists and wanted me to tive bargaining. Hardwick previously BAR TALK by Karen Sutherland add mine to it. She was disappointed served as in-house labor and employ- that I don’t have one. ment counsel for Providence Health I was curious about how others & Services. Club. Gabel is a shareholder at Lane on the local, na- view bucket lists, so I turned to Psy- Powell PC. tional and inter- chology Today for some expert insight. Associate Additions The following individuals were se- national level. It seems that bucket lists can either Jennifer Ashton has joined Seed lected as officers for the KCBA Labor & Jeffery (“Jeff”) Brotman recently serve as goals to help motivate peo- IP’s Trademark and IP Enforcement, Employment Law Section for 2017–18: died in his sleep at the age of 74. He ple to accomplish things or imply a Defense and Litigation groups. Ashton’s chair — Jennifer Robbins; chair-elect/ served as an assistant attorney gener- “check off the boxes” approach to life.1 practice includes the acquisition, main- conference chair — Aviva Kamm; trea- al and then was a founding member One of the psychologists described a tenance and policing of trademark, surer — Tom Holt; secretary — Gena of Lasher, Brotman and Sweet, after more traditional perspective on theo- copyright and domain naming rights. Bomotti; and trustees — Rich Ahearn, which he co-founded Costco with Jim ries of happiness as a counter to life Ashton was previously with Brace- Katie Chamberlain, Jillian Cutler, Ed Sinegal. He was Costco’s executive lists: “the only path to happiness is well LLP. Taylor and Joyce Thomas. chairman. the path of developing moral charac- Anita Ramasastry, professor of James “Jim” Nelson recently died ter, working on making it easier to do Of Counsel and Other law at the University of Washington at the age of 91. After practicing with the right thing with no resentment, Attorney Additions School of Law, has been elected presi- the Office of the Attorney General, but with joy.”2 K. Misa Bretschneider has joined dent of the Uniform Law Commission he joined the legal staff of the Western So much for philosophy. Now back Hillis Clark Martin & Peterson P.S.’s (ULC). Prof. Ramasastry is the first Office of the Milwaukee Railroad. to the reality of the task at hand. Real Estate and Land Use Group. Washington uniform law commissioner T. Dennis George recently died at Bretschneider’s practice focuses on to serve as president of the ULC, and the age of 78. He was a co-founder of Partner Pronouncements real estate transactions, including she is the first Asian American to serve George Hull Porter & Kohli, where Chandra Eidt has become a part- analyzing, drafting and negotiating as ULC president. he focused on business litigation prior ner in Seed IP’s Biotechnology, Phar- purchase-and-sale agreements, leas- P. Stephen (“Steve”) DiJulio has to his retirement. maceuticals & Chemistry and IP En- es and construction-related contracts. been elected firm-wide managing mem- James (“Jim”) Hardman recently forcement, Defense and Litigation Bretschneider was previously an as- ber of Foster Pepper PLLC. He replac- died at the age of 67. He practiced law groups. She was previously with Mill- sociate with Fikso Kretschmer Smith es Jeffrey Frank, who served as the in Pioneer Square for many years with er Nash Graham & Dunn LLP. Dixon Ormseth P.S. managing member since 2013. DiJulio’s a focus on elder law and guardianship. Inge Larish has become a partner Peggy Rasmussen has joined practice includes litigation involving Toward the end of his career, he became in the Seattle office of BakerHostetler. Stokes Lawrence as of counsel. Her state and local governments. Frank will a certified professional guardian.  She is part of the firm’s Intellectual practice includes complex commercial continue to build on his commercial, Property Practice and Patent Litigation litigation involving contracts, antitrust, construction and real estate practice. Karen Sutherland is the chair of the Team. Larish works with multinational energy, utility regulation, computers, Jeffrey Beaver has been elected to Employment and Labor Law Practice technology companies in the mobile environmental litigation, real estate, the American Law Institute. Beaver Group at Ogden Murphy Wallace, device, software, wireless, semicon- insurance coverage, and intellectu- is a partner with Miller Nash Graham PLLC, and chair of the King County Bar ductor, and computer engineering and al property. She was previously with & Dunn. Association Bar Bulletin Committee. Her architecture industries. She was previ- Harrigan Leyh Farmer & Thomsen. practice focuses on employment law, workplace investigations, employee ously with Pillsbury Winthrop Shaw Stefan Szpajda has become of Obituaries training, and various areas of the law Pittman in San Diego. counsel with Foster Pepper, PLLC’s Ken Schubert, Jr. recently died at that she finds interesting. She can be Maureen Mitchell has joined Fox Intellectual Property Litigation Practice. the age of 79. He was a founding mem- reached by mail at 901 Fifth Avenue, Rothschild LLP as a partner in its Se- He focuses on patent and trade secrets ber of the firm now known as Garvey Suite 3500, Seattle, WA 98164, by attle office. Her practice involves envi- litigation. He was previously an associ- Schubert Barer where he chaired phone at 206-447-7000 or by email at ronmental and Indian law, including ate with Fenwick & West. the firm’s Trust and Estate Planning [email protected]. regulatory compliance and litigation. Group. He retired from the practice of Mitchell previously was a shareholder Honors, Appointments law in 2012. 1 Christopher Peterson, “Bucket Lists and Positive at Summit Law Group PLLC. and Awards Charles “Chuck” Davis recently Psychology,” Psychology Today, February 8, 2011; Jennifer Baker, “Kicking the Bucket List,” Psychol- Krista Hardwick has joined Lane Andrew Gabel has become a new died unexpectedly at the age of 73. ogy Today, September 12, 2014. Powell PC as a shareholder in the member of the board at Seattle City- His practice focused on maritime law 2 Baker, “Kicking the Bucket List.”

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26 September 2017 BAR BULLETIN this man, it makes me sad and I wonder what he is doing today. Q. If you were not a legal assistant, what profession would you choose? Why? A. Architect, because I love to draw, Kelly Halvorson design and build. In addition to having earned degrees as a legal secretary and paralegal, I have a design drafting technologies degree. Pro Bono Volunteer of the Month Q. What originally drew you to the Housing Justice Project? A. School had a list of companies By Harry Higgins HJP/Kent is happy to have tally disabled high schoolers while fin- that provided volunteer hours for para- he KCBA Housing Justice Project Halvorson as one of its long-term ishing another degree. I enjoy being legal students. But I wanted to work in at the Norm Maleng Regional volunteers. helpful to those who cannot or have a position that had the opportunity to TJustice Center in Kent is proud We asked her a few questions about a hard time helping themselves. I feel go into the courtroom to hear hearings. to nominate Kelly Halvorson as the Pro her volunteer experience and personal everyone should volunteer to learn how This position lets you help with the be- Bono Services Volunteer of the Month. interests. to be compassionate toward others. ginning process before going in for a Halvorson has been a steady, volun- Q. How long have you been a KCBA Q. What is your most memorable hearing. I like to hear what the judge teer legal assistant for several years, Pro Bono Services volunteer? volunteer experience? has to say and how the law is applied. filling two to three shifts a week. She A. The first time I volunteered was A. Gosh, there are several, but I Q. What is the biggest challenge interacts well with our HJP clients, in January of 2012 to June 2012, and think I would have to go with the bed with helping the clients at HJP? and is always empathetic and sincere then I came back in September 2016. bug experience. So, a client came into A. For some, keeping them calm in her desire to help them with their Q. Who/what inspires you to the Seattle clinic when I was working and focused and not going off on other eviction matters. volunteer? there with Jacob W. You could actu- tangents. I understand that they real- Halvorson can be counted on to A. I started volunteering when I ally see the bed bugs on their coat. ly want to get their story out and feel efficiently complete her tasks and is was at Highline Community College in Jacob and I sat across the table from everything is important. A lot of the often called upon to train new legal 2012, first at Seattle Community Law the client praying that they would stay clients just want someone to listen to assistants. She operates with mini- Center and Stewart, Bealls, MacNichols, on the client. When we finished with them. Trying to give them only 15 min- mal supervision and is always think- and Harmel for 75 hours. Then I went the client and closed up the office, Ja- utes to tell you the situation sometimes ing creatively when trying to come to HJP/Seattle and while I was there cob being smart went to his car and is not enough. up with solutions for our clients. She I found out there was a clinic in Kent changed and bagged his clothes. I, on Q. What words of advice do you gets along well with the volunteer where I live. the other hand, got on the bus and have for fellow volunteers? attorneys and is willing to share her It’s in my DNA to help others. I went home with bed bugs. It took me A. When being trained on intakes, knowledge of the eviction process worked for seven years for the Kent four months to get them out of the two use the steps you are given, it is not with new volunteers. School District with the developmen- rooms that they parked themselves in something you can make your own way. at my house. Follow the process. Q. Please share a brief client story. Q. What do you do for fun? A. An elderly Englishman comes in A. Pretty much any outdoor activ- who is being evicted for non-payment ity, happy hour — even though I don’t of rent. He is retired, lives on a fixed in- drink, but I like to eat and talk. come and was living with his son split- Q. Favorite law-related movie? ting the rent. His son moved out with A. “12 Monkeys.” his girlfriend and left his dad holding Q. Must-have office supply? the bag. He was kind and appreciative A. Computers that don’t crash. of whatever we could do, but still he Q. Title of the last book you read? PROFESSIONAL had no place to go to and no one to A. I’m working on reading Evict- help him. I just found this so sad that ed right now. I’m usually too busy to MEDIATION your own family would leave you in do any reading and when I go to bed SKILLS TRAINING this situation. Whenever I think about I want to sleep. 

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BAR BULLETIN September 2017 27 Law Library The Intersection of Fake News and the Law By Barbara Swatt Engstrom

his Forbes news. According to the UI study, the ing definition of fake news, but concede criminal litigation of fake news cases. headline social bots can: that this definition requires case-by-case There have been suggestions that Tfrom May [P]ost content and interact with each analysis, particularly for instances of sat- government regulation and/or self- of last year caught other and with legitimate users via ire and parody: “We define ‘fake news’ regulation by social media is the answer, my eye, “Two- social connections just like real as the online publication of intentionally but the blogosphere has already jumped Thirds of Adults people. People tend to trust social or knowingly false statements of fact.”6 on the meme that this cure for fake news Get News from contacts and can be manipulated With this definitional problem in is worse than the disease.10 Do we really Social Media.” into believing and spreading content mind, Klein and Wueller discuss some of want to live in a world where Congress The article cited produced this way. To make mat- the common civil legal claims associated or Mark Zuckerberg decides what con- a 2016 Pew Re- ters worse, echo chambers make it with fake news. Defamation appears to stitutes real or fake news? search study finding that 62 percent easy to tailor misinformation and be the cause of action of choice for fake While there may be no magic legal of adult Americans get news from so- target those who are most likely to news litigation, and in this context the or regulatory solution to the problem cial media. I found that statistic hard believe it. Moreover, the amplifica- “intentionally or knowingly” language of of fake news, there is always self-help. to believe. tion of fake news through social their definition becomes essential when We can train ourselves to go the extra As a librarian and an attorney, my bots overloads our fact-checking determining the status of the plaintiff: step to fact-check things before sending first instinct was to go to the source capacity due to our finite attention, Harmful, false publications of fact them along, and to resist the urge to document. A closer look at the Pew as well as our tendencies to … trust concerning a public figure are only perpetuate what we are fed in our echo Research study1 revealed that yes, 62 information in a social setting.3 actionable if the publisher acted chambers. Most critically, we need to percent of the people surveyed (a pan- Whether there is a legal solution with “actual malice,” that is, with train the next generation to be critical el of 4,654 representative participants) to the proliferation of fake news is a either knowledge that the statement thinkers and healthy skeptics of what acknowledged that they get some news complicated question. The first chal- is false or reckless disregard for its is presented to them as “news.”  from social media. But that number was lenge is defining fake news. Fake news falsity. Conversely, private figures comprised of people who responded has been around as long as people do not need to prove actual mal- 1 Pew Research Center, “New Uses Across So- to the frequency with which they use have communicated with one anoth- ice but rather are required only to cial Media Platform 2016,” available at http://www. journalism.org/2016/05/26/news-use-across- social media as: “Often” (18%); “Some- er. It occurs in myriad forms, includ- prove that defamatory statements social-media-platforms-2016/. times” (26%); and “Hardly Ever” (18%). ing misleading claims for commercial were published with negligence.7 2 Chengcheng Shao, Giovanni Luca Ciampaglie, Onur Varol, Alessandro Flammini & Filippo Manszer, While it seems a bit misleading to in- purposes, propaganda campaigns and Klein and Wueller discuss other “The Spread of Fake News by Social Bots,” avail- clude the “Hardly Ever” contingent in conspiracy theories. potential civil legal claims such as in- able at https://arxiv.org/abs/1707.07592 (submitted the number of people who get news As journalist Paul Chadwick of The tentional infliction of emotional dis- on July 24, 2017). from social media, it is not entirely in- Guardian notes, defining fake news is tress, intellectual property violations 3 Id. at 2 4 Paul Chadwick, “Defining Fake News Will correct and the 62-percent figure does essential to combating it. In particular, (including federal trademark infringe- Help Us Expose It,” The Guardian (May 12, make for effective clickbait he takes issue with conflating flawed ment and state right of publicity laws), 2017), available at https://www.theguardian.com/ media/commentisfree/2017/may/12/defining-fake- The real question for me is why are journalism with fake news. “To equate false light invasion of privacy, fraud, news-will-help-us-expose-it. people using social media to get news? flawed journalism with fake news,” tortious interference, and unfair or de- 5 Id. The answer may be that the tail is wag- he says, “corrodes a longstanding no- ceptive trade practices.8 6 David O. Klein & Joshua R. Wueller, “Fake News: A Legal Perspective,” 20 J. Internet L. 1, 6 ging the dog. Researchers at the Univer- tion on which democracies rely: that Criminal laws may be applicable as (April 2017), available at https://papers.ssrn.com/ sity of Indiana, Bloomington, have re- there can be such a thing as a shared well. Washington’s criminal libel stat- sol3/papers.cfm?abstract_id=2958790. leased the first systematic study of how approximation of truth resting on ver- ute, RCW § 9.58.010, was repealed in 7 Id. at 7. software-controlled, social media pro- ifiable facts and corrected or clarified 2009 after being found unconstitution- 8 Id. at 8–9. files (social bots) are quickly spreading incrementally.”4 al in Parmelee v. O’Neel, 145 Wn. App. 9 Id. at 9. 10 See Jack Shafer, “The Cure for Fake News is large amounts of fake news via Twitter, His definition is: “Fake news means 223 (2008), but 15 states currently have Worse than the Disease,” Politico (November 22, and of how that information spreads.2 fictions deliberately fabricated and pre- criminal libel statutes in force, which 2016), available at http://www.politico.com/magazine/ story/2016/11/the-cure-for-fake-news-is-worse-than- With the results of the UI study, sented as non-fiction with the intent to along with cyberbullying laws could the-disease-214477, and Margaret Sullivan, “Fake News the most concerning aspect of the Pew mislead recipients into treating fiction provide avenues for criminal enforce- is Sickening. But Don’t Make the Cure Worse Than the 5 9 Disease,” The Washington Post (December 15, 2016), study’s finding that people increasingly as fact or into doubting verifiable fact.” ment. With that said, First Amendment available at https://www.washingtonpost.com/lifestyle/ rely on social media for their news, is In their article, “Fake News: A Legal free speech and other procedural or style/fake-news-is-sickening-but-dont-make-the-cure- worse-than-the-disease/2016/12/15/8c957994-c234- that these social media news consum- Perspective,” attorneys David O. Klein statutory protections bring much com- 11e6-9578-0054287507db_story.html?utm_term=. ers are being fed a steady diet of fake and Joshua Wueller put forth the follow- plexity and uncertainty to both civil and de42c55d0ddd.

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28 September 2017 BAR BULLETIN BUSINESS OF tion had $1.6 million in cash and cash Transition Time at KCBA equivalents, and the reserve fund was at $946,000. Williams noted that at this Prazuch and Maron presented the Co-chairs Anne Ellington and Nicole point of the fiscal year overall revenue nomination of James Clark to fulfill McGrath briefed the trustees on the task and expenses should be at roughly 83 the remaining two years of the east- force’s four priority areas: (1) evaluation percent of the approved budget and both side trustee positon left vacant by the of statutory changes; (2) detention ser- were performing ahead of expectations. death of Nathaniel Wylie in January. vices; (3) school-to-prison pipeline; and Further, the final quarterly installment After discussion, the Board appointed (4) model reforms and legal research. of the grant from the King County Bar Clark to fill the position. The task force leaders plan to meet with Foundation was recorded on the April In her year-end recognition re- the Board later this year to discuss rec- statement showing $256,000 in revenue. THE BOARD marks, Battuello thanked outgoing Pro ommendations for legislative changes. Williams and Prazuch directed the Bono Services Director Threesa Milligan Battuello briefed the trustees on a Board’s attention to the annual budget The following are highlights from for her service to the KCBA and rec- recent liaison meeting with minority bar in the materials, which was first pre- the KCBA Board of Trustees meeting ognized outgoing trustees Alan Funk, leaders; their discussions focused on ar- sented at the May meeting. After addi- held on June 21, convened by KCBA Nicole McGrath, Karen Orehoski, Mary eas where collaboration may be possible. tional discussion, the Board approved President Kathryn Battuello. Sakaguchi and Sara Wahl, and Treasur- In addition, she presented an overview of the FY2018 annual budget by voice vote. er Kinnon Williams for their service to the recent implicit bias training that was Williams also briefed the trustees xecutive Director Andrew Prazuch the Association and the legal commu- held for bar leaders and members of the on the Finance Committee’s proposed announced that Anne Daly had nity, and presented each with a gift of Judicial Candidate Evaluation Committee. investment policy for the Association un- Ebeen hired as the new Pro Bono appreciation. Maron thanked Battuello Williams reported that at the end der which up to 75 percent of the oper- Services director. He also briefed the for her leadership over the past year of 10 months of the fiscal year, as of ating reserve fund could be invested in Board on a new partnership with the and presented her with a gift from her April 30, KCBA had revenues of $3.4 longer-term financial instruments. After South King County Bar Association, fellow officers and trustees. million and expenses of $3 million, for discussion the Board approved the poli- which will see KCBA handling admin- Juvenile Justice Reform Task Force net income of $436,000. The Associa- cy as amended during the discussion.  istrative operations for SKCBA. Prazuch also recognized First Vice President Andrew Maron for his perfect attendance at board meetings during the past year. CONNELLY LAW OFFICES Offices in Tacoma & Seattle, WA | www.Connelly-Law.com LHHC Sets Annual Fundraisers for October 10 awyers Helping Hungry Children, a nonprofit dedicated to ending Proven Advocates Lchildhood hunger in Washington, will hold its 26th annual fundraiser luncheon on October 10 at the Grand Proven Results Hyatt in Seattle. The event will be emceed by Ian Lindsay and headlined by our keynote speaker, former Washington Supreme Court Justice Bobbe Bridge, and Wash- ington Solicitor General Noah Purcell. Individual tickets are $100 or $60 for students and attorneys with government or nonprofit organizations. Online registration is available at www.lhhcwa.org. This is the celebration of 26 years of Lawyers Helping Hungry Children’s mission of raising money and advocating on behalf of hungry children. The money raised by LHHC goes to beneficiary organizations that provide food to children of low-income families and to advocacy for childhood hunger issues. Beneficiary organizations include the City of Seattle Summer Food Program, Northwest Harvest, Emergency Feeding Program, and CARE. The Pierce County Chapter of Law- yers Helping Hungry Children will hold its ninth annual breakfast to benefit three food banks that have backpack programs for school-age children, also on October 10 from 7:30–8:30 a.m. The event is at Bichsel Hall, St. Leo Campus (on 13th Street, between Yakima and A World Class Law Firm G streets). Breakfast will be hosted by Superior Court Judge Stephanie Arend, and Tacoma Public Schools Superinten- Just Around the Corner dent Carla Santorno will be the guest speaker. For more information, contact Jane Melby at [email protected]. TRUTH | JUSTICE | ACCOUNTABILITY | EQUAL ACCESS Please join us at one or both of our events. 

BAR BULLETIN September 2017 29 From the Desk of the Presiding Judge Preparing the Next Generation A Collective Responsibility To Develop Diversity By Judge Laura Inveen initiative to suggest to the lawyers that ing costs of litigation and increasing jury are all things he could do in his they make a concerted effort to have use of alternative dispute resolution as sleep. Sure, it would be quicker for awyers in the courtroom should lawyers under age 40, and those who primary reasons. This is even a greater him to do it himself. But he recogniz- reflect the demographics of those wrote the briefs, argue the motions. reason for lawyers and judges to make es the importance to a young lawyer’s Lin the community. But that doesn’t She offered the senior lawyers the a concerted effort to ensure new law- skill development and job satisfaction happen automatically. A concerted ef- option to intervene or get extra time if yers have the opportunity to develop that he or she be given every possible fort to cultivate the litigation practice they felt the argument was going awry. courtroom skills. opportunity. of new lawyers will lead to a more di- From there on out, she observed a dra- Judge Scheindlin surmises that one What about those of you starting verse pool of litigators. matic difference in the demographics of the reasons there are so few women out, who haven’t been given immedi- In an August 8 New York Times over the course of the litigation. In ad- lawyers on private-sector cases is that ate opportunities for court experience op-ed, former New York District Court dition to more women, she observed the client controls who the lawyer is, and don’t see it on the horizon? You Judge Shira Scheindlin wrote of a phe- an increased number of attorneys of unlike for public-sector matters. Per- may have to be a bit proactive, but the nomenon she observed in motion prac- color. Years after, a young man ap- haps. But if that is accurate, the senior opportunities are there. tice. A motion would be argued by proached her at a conference to tell lawyers in the firm have the ability to Start with the KCBA website. The a senior partner in a large firm. The her how that had “changed his life.” It educate the client as to the importance Housing Justice Project uses volunteer judge would pose a tough question. allowed him to tell clients, as well as to the bench and jury that lawyers re- attorneys (no experience necessary) to The partner, most frequently a man, other partners in the firm, that he had flect their communities. Further, many represent low-income tenants facing would turn to the young lawyer seat- argued in District Court, which led to national and regional corporate coun- eviction in unlawful-detainer actions. ed next to him, often a woman. After additional responsibility in his career sel are actually intentionally seeking Volunteers are provided training. In conferring with the young lawyer, the development. out retained counsel panels who are addition to being a huge benefit to partner would give his answer. Judge We all have an obligation to ad- diverse. To the extent your client is not the Court, a participating lawyer gets Scheindlin would ask herself why the vance the professional development doing so, you may wish to subtly point experience in negotiation skills, and younger lawyer wasn’t arguing the of new lawyers, especially those tra- out they are behind the curve. appears at hearings in the Ex Parte case, since she obviously “knew the ditionally underrepresented in the Lawyers and clients should be as- Department and the trial court should case cold.” courtroom — women and attorneys sured judges and juries will be recep- the case go that far. This column hit home with me of color. Judge Scheindlin noted a re- tive. From a judicial standpoint, I would The Family Law Mentor Program and some of my colleagues. I can’t tell cent report by the New York State Bar much rather hear from the lawyer who is also an excellent opportunity to pro- you how many times I have observed Association’s Commercial and Federal wrote the brief. I guarantee that my vide valuable pro bono service while a similar situation and wondered why Litigation Section, which was based on colleagues and I will be welcoming to receiving important skills. Mentees the younger lawyer was not being giv- a study of women speaking in court. those lawyers who are arguing their (new or non-family law attorneys) are en the opportunity to argue and get The study, based upon observations first matters. paired with an experienced family law courtroom experience. Not to mention by judges, noted that women were We will reflect on our own court mentor who provides training and as- it might have made the argument more the lead lawyers for private parties experiences. I remember the angst I sistance throughout a contested fami- efficient. about 20 percent of the time across experienced leading up to my first ap- ly law case. And by the way, feel free It reminded me of a conversation I all levels of New York courts, while pearance as a Rule 9 intern, preparing to take the opportunity when you ap- had some years ago with U.S. District twice as likely to appear on behalf of to petition the court for an unopposed pear in court to introduce yourself to Court Judge Marsha Pechman. She public-sector clients. deferred prosecution in a DUI case. the judge or commissioner as a volun- described a similar situation dealing There is no question that the op- The relief I felt when my client failed teer lawyer. You won’t get preferential with a lengthy, multi-party commer- portunities for all lawyers to obtain to appear was palpable. treatment, but the judicial officer will cial litigation. Observing the room of courtroom experience have dwindled. To the extent it is the lawyer’s first likely give you a bit more latitude and mostly white, older men, she took the The causes are many, with the escalat- time in court, and the judge is made patience when presenting your matters aware of it, he or she will find it en- and navigating what can seem like a dearing. And, like Judge Pechman, I procedural morass at times. warrant there is unlikely to be a judge Is federal court your interest? The on the bench who wouldn’t give a new Western District of Washington has a attorney a bit more time to compose Pro Bono Panel program for Seattle Civ- himself or herself or, to the extent a il Rights Act cases, more fully described point may have been missed, to allow on the court’s website. Superior Court a more senior colleague to briefly con- Judge Judy Ramseyer, who spent time fer with the lawyer before the hearing’s in federal court as a clerk and litigator, conclusion. points out: KCBA’s Young Lawyers Division It is a great opportunity to litigate gives an award annually for Mentor of in federal court. Clients and issues the Year. Although he hasn’t said so, can be challenging, but an effort is I warrant that one of my husband’s made to find a mentor if a newer proudest moments was receiving that attorney is concerned about prac- award a few years back. Even in a large ticing in an area in which s/he has law firm, where he is a partner, the op- no experience and does not have portunities for court appearances are resources available through a law slim. A true courtroom junkie, there firm. The judges are very appre- isn’t anything he likes more (okay, ciative of attorneys who take these maybe some things) than appearing assignments. If the case is a civil in court. rights (42 USC 1983) action, attor- But the reason he received his ney fees are available to a prevail- award was in large part for making ing plaintiff (42 USC 1988). the sacrifices to his own desires and These are just a few ways to ensure to ensure that younger lawyers were that we have a more diverse group of given opportunities for litigation. Tak- litigators in our courtrooms. But it takes ing a deposition, defending a traffic a more concerted effort by all of us to ticket, arguing a motion or picking a make it happen. 

30 September 2017 BAR BULLETIN RESERVATIONS (206) 267-7051 or KCBAKCBA CCLASSIFIEDSLASSIFIEDS [email protected] EMPLOYMENT OFFICE SPACE OFFICE SPACE

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BAR BULLETIN September 2017 31 FAMILY LAW MATTERS clients will also translate to less stress clients about how to reduce costs and for areas where you can cooperate or continued from page 11 when they are home with their children. conflict in other aspects of the litiga- reach agreement. If you receive a formal discovery tion. Let the client know that a higher Sometimes clients believe that it will litigation that clients are unaware of until demand, you should be clear with your level of conflict can increase the overall be useless to make offers to the other side they find themselves in the midst of it. client about how important it is that cost of their matter, including paying to reduce conflict and/or cooperate on is- Often clients are stunned to learn they be timely and complete with their more in attorney fees and expert costs sues, but sometimes all it takes is for one that personal information such as their responses. This will not only assist you as well as taking more of their time and party to make the initial move and sud- bank statements, employment records or in your representation of the client, it emotional energy. denly there are some minor agreements, medical/mental health records must be will assist both parties in moving the Some simple ways to reduce costs in- which can lead to more substantive agree- produced and provided to the other party case toward resolution. Advise the client clude agreeing to joint appraisals for real ments. Talk to your clients about taking and opposing counsel as well as to the about other legal considerations related estate or hiring a joint financial expert if a the first step in starting a conversation to court, mediator, arbitrator or other third to discovery. For example, explain the business evaluation or tracing of separate work to reduce conflict and beginning person such as a parenting evaluator or various sanctions that are possible un- property is necessary. See about agreeing the process of building a better future for GAL. Make it clear to the clients that, for der CR 37 if they do not comply with that one party will provide documenta- their children as well as for themselves. the most part, this information is being valid discovery requests. tion for their joint accounts. If the parties Family law attorneys deal with provided as a normal part of the case If discovery involves complex mat- are cooperating with a joint expert, then conflict every day. Take time with your and is not intended to create conflict. ters and/or repetitive intransigence, you may be able to avoid the situation client to explore the effects of conflict Discuss discovery with your client in consider talking to your client about the of the parties becoming immediately on children. Helping them to develop advance and consider whether an infor- option of agreeing to appoint a special polarized as to his/her expert’s opinion. ways of reducing conflict and increas- mal exchange of documents and other master or seeking an appointment if Finding small areas where the par- ing civility with the other parent can information is an option. In some cases, agreement isn’t possible. The special ties can agree and cooperate can trans- have long lasting and positive effects informal discovery can be accomplished, master can often address questions and late into the parties being better able for them and their children. Lastly, don’t which can lessen stress for the clients and conflicts about discovery more quickly to cooperate in meeting the needs of forget to take time for yourself and step move the clients toward a higher level of than the court system. their children. Lead by example; treat away from your clients’ conflicts so that cooperation; hopefully, less stress for the Talk over various ideas with your the other attorney with respect and look you can maintain your perspective. 

Continuing Legal Education

Save the Dates for Fall CLE’s! “Evergreen Personal Injury Counsel 44th Annual Aviation Law Conference helped me recover my losses after my Hotel Bellwether, Bellingham September 22-24, 2017 recreational injury. Now I’m back Credits Pending on the water!” Appellate CLE: Seasoned Professionals and Judges Share Their Practice Tips and Lessons Learned King County Bar Association - Live or Webcast September 29, 2017 3.00 Law & Legal CLE Credits

2017 Family Law Hot Topics Washington State Convention Center October 4, 2017 5.25 Law & Legal and 1.00 Ethics CLE Credits

2017 Probate Administration Washington State Convention Center JUSTICE MATTERS October 26, 2017 6.25 Law & Legal and .50 Ethics CLE Credits BECAUSE YOU MATTER How to Become Your Own Cybersleuth

STEPHEN BULZOMI JOHN CHRISTENSEN JEREMY JOHNSTON King County Bar Association - Live or Webcast JAMES MCCORMICK GEMMA ZANOWSKI October 27, 2017 Credits Pending

100 SOUTH 9TH STREET, TACOMA, WA 98402 TACOMA 253-472-6000 | SEATTLE 206-838-6000 For additional information: www.kcba.org or [email protected] WWW.EPIC-LAW.COM or call the CLE Department at 206.267.7008 or 206.267.7067

32 September 2017 BAR BULLETIN