SPRING 2002 FEDERAL BAR ASSOCIATION of the Western District of Washington NEWS NEWS NEWS NEWS VOL. 25 NO. 1 SPRING 2002

THE HONORABLE WILLIAM L. DWYER 1929-2002 FEDERAL BAR ASSOCIATION NEWS

PRESIDENT’S MESSAGE

am very honored to represent our members as President of the Federal Bar Association of the Western District of Washing- Iton. We are now in our 24th year of existence Intellectual Property Committee that will and have over 950 members. We are an provide important services to our mem- organization composed of “doers” who bers practicing in that area of the law. The have rendered a variety of services and creation of this committee reflects the re- support to the courts, our members, and cent increase in civil filings in the West- the community at large. We have the fol- ern District relating to intellectual prop- lowing active committees: Admiralty, erty issues. ing the very successful mediation-based Alternative Dispute Resolution, Annual ADR programs in this District. Program/CLE, Appellate Practice, Bank- We have commenced a drive to expand ruptcy, Court Services Liaison, Criminal our non-King County membership. Our Our Pro Bono Panel continues to furnish Law, Ethics and Practice, Federal Ap- Membership Committee is contacting lo- representation to litigants in the Western pointments, Local Rules, Membership, cal bar organizations in other counties in District who otherwise could not afford a Pro Bono Panel, and Website/Communi- the Western District and, with the help of lawyer. The dedication of time by attor- cations. These committees do the work some of our judges, making them aware neys on the panel to this worthy effort is of our organization and are extraordinar- of the advantages of membership in our one of the best examples of how our mem- ily active in supporting the courts and pro- organization. bers give back to the community. viding services to our members. Ensuring that the new federal courthouse Other committees provide valuable ser- This year we have embarked on an ambi- will meet the needs of our members will vices. Individuals who chair and work on tious agenda of projects. The following require increased communication with, these committees perform the real work are some highlights of our substantial and the support of the District Court and of the Federal Bar Association of the work in progress. the clerk’s office. Our Court Services Western District of Washington. I appre- Liaison Committee is heading this effort. ciate all of their efforts. This is a better A task force is completing a two-year District in which to practice law because study regarding implementation of the The annual dinner and CLE continues to of the efforts of those who freely give of new Federal Rules in this District. This be one of our most important events. This their time to these committees. study will provide important information year it will be held on Wednesday, De- to the District Court, attorneys, and liti- cember 4, 2002, at the Four Seasons. The We will continue to award the Federal Bar gants concerning, in particular, the impact dinner will be a great celebration of the Service Award. The selection criterion is of new discovery rules. bench-bar partnership that is embodied in exceptional service by an individual to the this organization as we head into our 25th bar or the public. Last year we presented We have created another task force to year. The annual CLE to be conducted the award posthumously to Thomas C. study the availability of justice in the during the afternoon of December 4th is Wales, whom we all miss. Please submit Western District of Washington to eco- in capable hands and, as usual, will the name of any nominee and a brief state- nomically disadvantaged litigants. The complement the reception and dinner. ment of reasons to Allison Wallin, FBA results of this study will give us substan- Trustee, at Lane Powell Spears Lubersky. tial insight into whether the need for le- The important work of our Alternative gal representation in this District is being Dispute Resolution Committee, which is Finally, as you know, we have lost an in- satisfied, and whether the services of our charged by court rule with supervising our spirational lawyer, judge and friend with Pro Bono Panel need to be expanded. CR 39.1 program, continues. That com- the passing of Bill Dwyer. Judge Dwyer mittee oversees the training and certifica- was one of the founders of this organiza- Last year we created a Criminal Law tion of neutrals, and supports the District tion and was a great mentor and example Committee. This year we are creating an Court and the clerk’s office in implement- to many of us. He represented the best of

Continued on page 4

2 SPRING 2002 FEDERAL BAR ASSOCIATION of the Western District of Washington NEWS NEWS NEWS NEWS In this issue:

President’s Message ...... 2 In Memoriam: Judge William L. Dwyer ...... 4 Highlights of 2001 Annual Dinner Include Tribute to Tom Wales, Keynote Address by Judge Mary Schroeder...... 5 Profile of U.S. Attorney John McKay...... 10 Lawyer Representatives Facilitate Bench-Bar Communications ...... 12 Law Libraries in the Western District of Washington ...... 13 Local Civil Rule Changes ...... 15 Announcements ...... 18 Grammar Gremlins ...... 18 Registration Form...... 19

On the cover: Judge William L. Dwyer.

The Federal Bar Association News is a semi-an- nual publication of the Federal Bar Association of the Western District of Washington. Comments and proposed articles should be addressed to: Anthony L. Rafel Riddell Williams P.S. 1001 Fourth Avenue Plaza, Suite 4500 Seattle, WA 98154-1065 (206) 624-3600

3 FEDERAL BAR ASSOCIATION NEWS

IN MEMORIAM: JUDGE WILLIAM L. DWYER

The Seattle and national legal community has lost one of its greatest and brightest lights with the passing of Judge William L. Dwyer. He was an outstanding jurist whose career on the bench mirrored his many years of practice as one of Washington’s best trial lawyers. He approached the practice of law with extraordinary intelligence, in- tegrity and compassion for those who are involved in our legal system. He understood that justice needs to be com- pletely impartial and depends upon application of the rule of law. As a judge he was brilliant, fair and unfailingly courteous to counsel and the litigants who appeared be- fore him. He was a passionate advocate for the jury sys- tem. He believed that juries reach fair results even in the most complex cases, and that juries are an essential demo- cratic institution in our society. Throughout it all, he never lost sight of the fact that law is fundamentally about people. His involvement both as a lawyer and judge in many landmark cases, and his unerring ability to do the right thing in difficult and unpopular circumstances, were part of his greatness as a lawyer, judge and human being. He embodied the concept of professionalism, civility and integrity in the practice of law, and none of us who are involved in the legal system could aspire to be more as a lawyer or judge than William L. Dwyer.

The Federal Bar Association of the Western District of Washington mourns the passing of Judge Dwyer and ex- tends its profound condolences to his wife, Vasiliki, his children and their families. While we have lost one of the best, Judge Dwyer’s many accomplishments and our memories of him as a friend will be an inspiration for the future.

President’s Message Continued from page 2

what we can be as lawyers. The Federal fund will be a great way to honor Judge an organization known for its inclusivity, Bar Association of the Western District Dwyer and will help a worthy student at- service, and history of bench-bar coopera- of Washington believes that it is very im- tend law school. I have a feeling that this tion. I am grateful to be part of it, and portant that we honor him, and we intend is something he would have liked us to do. look forward to your input and help dur- to do so by creating a scholarship in his ing the coming year. memory at the University of Washing- I will end where I began. I am honored to ton. Your support of that scholarship represent you as your President. This is James A. Smith, Jr.

4 SPRING 2002

HIGHLIGHTS OF 2001 ANNUAL DINNER INCLUDE TRIBUTE TO TOM WALES, KEYNOTE ADDRESS BY JUDGE MARY SCHROEDER

By Duncan Manville n keeping with recent custom, the Federal Bar Association held its 18th Annual Dinner in the Spanish Ballroom of the Four Seasons Olympic Hotel. The dinner was preceded by an I remarks with a tribute to the late Tom excellent CLE and a no-host reception. The CLE’s three sessions Wales, formerly Executive Assistant U.S. focused on the recent amendments to the Local Civil Rules for the Attorney for the Western District of Western District of Washington, essentials of federal criminal law Washington and press spokesperson for for the civil practitioner, and techniques for proving or defending the U.S. Attorney’s Office, president of Washington Ceasefire, and an active FBA claims once liability has been established. board member and committee chair. Mr. Wales was shot in his home on October Incoming FBA President Jim Smith wel- noted, “should remind all of us that being 12, 2001. Ms. Gammer presented him comed the attendees to the dinner. He involved in the practice of law and the posthumously with the FBA’s Federal Bar discussed the varied work of the FBA and administration of justice really are part of Service Award. Mr. Wales’ brother, Rick, its committees, and commended the the same calling, which is to provide ser- accepted the award on Tom’s behalf, and FBA’s members for their extensive com- vice to those people who need justice.” spoke movingly about Tom and his many munity involvement. He highlighted the commitments to public and community bench-Bar partnership that the FBA Michelle Gammer, Immediate Past-Presi- service. strives to promote. That partnership, he dent of the FBA, followed Mr. Smith’s

5 FEDERAL BAR ASSOCIATION NEWS

The Hon. John C. Coughenour, Chief Judge of the U.S. District Court for the Western District of Washington, then took the podium. After requesting a moment of silence in memory of Tom Wales, Judge Coughenour introduced the evening’s keynote speaker, the Honorable Mary Schroeder, Chief Judge of the United States Court of Appeals for the Ninth Circuit—in Judge Coughenour’s view, “the best chief judge in the United States.”

Judge Schroeder spoke about her recent travels and the various events that she had attended during her first year as Chief Judge. These included the Eastern Dis- trict of California’s annual conference, held in November 2001 in Monterey (which, Judge Schroeder noted, “is in the Northern District of California, but no one traditionally one of the strongest in the tion until 1987. Judge Schroeder called seemed to mind”). There she met Clint country”; an “outstanding” Bar; and the the Japanese internment “one of the great Eastwood, who had been the luncheon “remarkable” cases that have come from injustices of our country’s history.” Mr. speaker. “No matter how compatible we the Western District, including Burch v. Hirabayashi’s case, she said, “illustrates might be in some ways,” Judge Schroeder Barker (the underground student news- that the courts are central to the preserva- remarked, “we certainly did not share a paper case), and Antonio v. Wards Cove tion of our freedoms, and that when courts similar judicial philosophy.” (the seminal Title VII case that is still in fail our freedoms suffer.” the Ninth Circuit). “And of course,” Judge Schroeder added, “there have been It was encouraging, Judge Schroeder ob- the spotted owls.” served, that in the wake of the September Judge Schroeder spoke at length about Gordon Hirabayashi, a University of Continued on page 12 Washington student who, in May 1942, had defied the U.S. government’s order directing the removal of Japanese-Ameri- cans to internment camps. Mr. Hirabayashi was tried and convicted in the U.S. District Court for the Western Judge Schroeder confirmed that despite District of Washing- her hectic travel schedule and “Diamond- ton, and in 1943 his back loyalties,” she considered Seattle “a conviction was up- very special place” because of her close held by the U.S. Su- friendships with colleagues from the preme Court. The Western District of Washington; a “dis- Ninth Circuit did not tinguished District Court bench [that is] overturn the convic-

6 SPRING 2002

7 FEDERAL BAR ASSOCIATION NEWS

8 SPRING 2002

9 FEDERAL BAR ASSOCIATION NEWS

PROFILE OF U.S. ATTORNEY JOHN MCKAY

By Duncan Manville

n Tom Clancy’s 1989 book Clear and Present Danger, FBI Director Emil Jacobs is murdered by assassins working for a IColombian drug cartel. Shortly after its publication in hard cover, Clancy sent a copy of the book to the real FBI Director, William Sessions, with a letter apologizing for Jacobs’ untimely Small wonder that the McKay household demise. This gesture earned Clancy an invitation to lunch with produced three lawyers: John; older Sessions, the FBI’s twelve Assistant Directors, and Sessions’ per- brother Mike McKay, U.S. Attorney for the Western District under the first Bush sonal staff and Special Assistants. Seated next to Clancy was John administration and currently managing McKay, now U.S. Attorney for the Western District of Washing- partner of McKay Chadwell PLLC; and ton, but in 1989 a White House Fellow and Special Assistant to younger brother Bill McKay, formerly an Assistant City Attorney for the City of Sessions. Clancy spent two hours quizzing McKay about the White Seattle and now a partner at McKay House Fellows program. Clancy’s next book, The Sum of All Fears, Huffington PLLC. featured a White House Fellow who was, McKay says, “a real snake.” In college, John McKay worked on John Spellman’s 1976 gubernatorial campaign The irony is that it is impossible not to In any event, McKay’s abilities lay more and Doug Jewett’s 1977 run for Seattle like John McKay, a people person who in the areas of analysis, argument, and Corporation Counsel (now City Attorney). enjoys telling stories like the one about public speaking, skills he developed at an Joel Pritchard then asked McKay to man- how Tom Clancy talked to him for two early age: age his 1978 congressional reelection hours and then, obviously based in part campaign, which was successful on their conversation, created a character Our dinner table is this big round (Pritchard could have won “falling out of who was a jerk. Or about how in 1986 he table, and it was Socratic method, bed, so I really didn’t have to do any- was hired as an Assistant U.S. Attorney although I never knew it. My earli- thing,” says McKay). After graduating by Gene Anderson—then U.S. Attorney est memory was reading about the from college in 1978 with a BA in politi- for the Western District—and passed all Arab-Israeli conflict so I would have cal science, McKay accompanied of the background checks, only to be shut something to say at the dinner table, Pritchard to Washington, D.C. to serve as out by an unexpected hiring freeze. and I was probably a first grader or a legislative aide. McKay spent a year in second grader. Because I really D.C. working on the Washington State Of course, there is much more to McKay wanted to participate and my oldest Wilderness Act, which created the Will- than the ability to spin a good self-depre- brother and sister were having the iam O. Douglas Wilderness east of Mount cating yarn. He is one of twelve children, real conversation with my parents. Rainier. McKay then enrolled at a Seattle native who grew up on Capitol We were all quizzed and it went like Creighton University Law School, from Hill in a large house that is worth a bit this: My dad would say, alright, you which he received a JD in 1982. more today than the $32,000 that his par- Billy, you, what’d you do in school ents paid for it in 1960. He attended St. today? And then they’d ask some McKay returned to Seattle and joined Joseph’s Grade School and Seattle Prep critical question and you’d have to Lane, Powell, Moss & Miller, where he High School. He thought he might even- analyze it, but it could be about any- began to develop a civil litigation prac- tually follow in the footsteps of his father, thing, except TV. Even the littlest tice serving Nordstrom and other corpo- a physician, until he got to the University kid was gently asked something and rate clients. He also very quickly became of Washington and “realized you had to they’d talk about it. When I went to involved in a variety of pro bono activi- actually cut people up,” whereupon they law school I realized, I’ve seen this ties. (“Blame it all,” he says, “on [former tended, unfortunately, to bleed. before, this Socratic method thing. Lane Powell partner] Matt Kenney, who

10 SPRING 2002

I think on my third day came into my of- named the WSBA’s Pro Bono Lawyer of to the people and that economic poli- fice and said, we do pro bono work here. the Year in 1995. He received the cies are meant to create opportunity I said, oh, we do?”) For organizations like WSBA’s Award of Merit—its highest for everyone. And we have to guard Evergreen Legal Services (now Colum- award—in 2001. against abuse, which means you bia Legal Services), McKay handled cases have to support individual rights. . . ranging from landlord-tenant disputes to From 1995 to 1996, McKay chaired the . For a conservative to say that poor criminal matters. He also helped to found Washington State Equal Justice Coalition, people aren’t going to be represented the Northwest Minority Job Fair in 1986, a non-partisan organization formed in in the court is the opposite of why and from 1988 to 1989 served as Presi- 1994 to educate elected officials and the conservatives came to this country dent of the Washington State Bar public about the importance of equal ac- and why their forebears came to this Association’s Young Lawyers Division. cess to civil justice. McKay was brought country. They came here because on board because Washington’s congres- elites and people in power were In 1989 McKay took a one-year leave of sional delegation had flipped from prima- keeping that power for themselves absence from Lane Powell to become one rily Democrat to heavily Republican in the and using it against those people who of fourteen White House Fellows. He was mid-term election, and McKay was both didn’t have power. And the only assigned to the FBI, where he was tasked a tenacious advocate for legal aid and an way we in this country redress those with advising Director Sessions on a range articulate speaker whose view has always grievances is in the courts. If you of policy matters, and met, among others, been that the concept of equal access to have a very limited view of the gov- Charles Mandigo, now Special Agent in justice is entirely consistent with the fun- ernment it’s to provide for the com- Charge of the FBI’s Seattle office. At damental tenets of conservatism. Or as mon defense, promote commerce least twice a week, McKay had lunch with McKay succinctly explains, “I spoke flu- between and among the states and the other Fellows and with speakers in- ent Republican.” McKay’s favorite con- [the Constitution] does say, I believe, cluding President Bush, Vice-President versations about legal aid have been with establish justice. You can’t read Quayle, D.C. Circuit Court Judge Robert “the classic Barry Goldwater conservative anything in anything to do with the Bork, CIA Director William Webster, and Republican”: founding of our country and read news icon Walter Cronkite. The Fellows someplace that that meant establish lunched with Colin Powell, then Chair- I certainly understand philosophi- justice for the rich or the people of a man of the Joint Chiefs of Staff, the week cally where they’re coming from— certain religion. That’s baloney. after the United States invaded Panama; that the best government is closest and with Defense Secretary Dick Cheney the week before the start of the ground war in Kuwait. “Most Fellows,” McKay says, “never want to come back because it is never going to be as good in the gov- ernment as the year that you were a White House Fellow.”

In fact, McKay was to return to D.C. for a third tour, but first he headed home to Seattle, where he spent several years at Lane Powell before accepting an offer from Cairncross & Hempelmann to chair the firm’s litigation practice group and serve as one of its three managing part- ners. At Cairncross, McKay continued to develop his civil trial practice and repre- sent underprivileged clients pro bono. He served on the American Bar Association’s Board of Governors and House of Del- egates, and the WSBA’s task forces on Opportunities for Minorities in the Legal Profession and on Governance. He was

Continued on page 16 11 FEDERAL BAR ASSOCIATION NEWS

trict Meeting at which the judges and law- LAWYER REPRESENTATIVES yers of the District can discuss topics of FACILITATE BENCH- interest and concern in the federal courts. This year’s meeting, held on March 15, BAR COMMUNICATIONS 2002, focused on how the events of Sep- tember 11 have affected federal practice. By Merrilee A. MacLean The topic was explored by a panel com- prising experts in the areas of civil rights, ast fall, the United States District Court for the Western ethics, jury selection, and the economy; District of Washington selected three new Lawyer Repre- as well as Congressman Adam Smith of sentatives to the Ninth Circuit Judicial Conference: Todd the Ninth Congressional District. The L panel discussion was followed by D. True, Sheryl J. Willert, and John W. Wolfe. They joined M. breakout groups in which judges, practi- Colleen Kinerk, Merrilee A. MacLean, Susan M. Roe, Montell E. tioners, and panelists examined the issues in more detail. The judges and lawyers Hester, Michael Reiss, and G. Val Tollefson, who had previously then convened informally in a hosted re- been appointed. Ms. MacLean serves as chair of the Western ception. District’s nine Lawyer Representatives, each of whom serves for Lawyer Representatives are afforded a tre- a three-year term. mendous opportunity to interact with their colleagues and with the district and ap- The Judicial Council established the Law- have an opportunity to share concerns and peals court judges of the Ninth Circuit to yer Representative system in 1978 to fos- ideas with the Chief Judges of each of the improve the processes of the federal ter increased, better, and more honest com- Districts. Recent topics discussed with the courts. It is time well spent. munications between bench and bar. Chief District Judges have included im- Through the Ninth Circuit Lawyer Rep- proving communication with the courts resentative Coordinating Committee through the increased use of technology, (LRCC)—comprising the chairs of the court community outreach, the 1999 ADR 2001 Annual Dinner Lawyer Representatives from each judi- study, expediting judicial decisions, the Continued from page 6 cial district within the Ninth Circuit—the Civil Justice Reform Act, the new Fed- Lawyer Representatives participate in eral Rules of Civil Procedure, the need for 11 attacks, this country for the most part planning the program of the Ninth Circuit consistency in local rules, and FRCP 26. did not witness the potent racist backlash Judicial Conference, submit resolutions At the Chief District Judges’ meeting held that had followed Pearl Harbor and led to for consideration at the Conference, pro- in Tucson, Arizona in January 2002, the the Japanese internment. vide input on judicial vacancy issues at LRCC made a presentation on juries, dis- both the circuit and district court levels, cussing jury reforms that have been insti- While Judge Schroeder declined to com- evaluate rule proposals, and participate in tuted in Arizona, and the benefits of more ment on the wisdom or constitutionality discrete projects, as requested. In recent active participation by attorneys in the voir of the USA PATRIOT Act and other simi- years, task forces have been set up on Law- dire process. Merrilee MacLean was also lar legislation, she did predict that we yer Discipline and Judicial Feedback, the one of five bankruptcy attorneys within would see litigation concerning these anti- implementation of the Bias Study Report the Ninth Circuit selected to participate terrorist measures, including litigation ini- has been analyzed, and a Public Informa- in the Chief Bankruptcy Judges’ annual tiated in the Western District of Washing- tion Committee comprising judges and law- conference in Honolulu last November. ton. Judge Schroeder stressed the need yers has been established. A member of this At that meeting, the Lawyer Representa- for attorneys to “make even greater efforts group also serves as ex-officio member of tives led discussions on varying practices in these times of stress to assist the courts the Ninth Circuit Rules Committee. J. Ri- in chapter 13 proceedings throughout the in handling the difficult issues that we will chard Creatura, a former Lawyer Represen- Circuit, and on improving communica- face.” “In the last analysis,” she said, “the tative, currently serves in that capacity. tions between the bar and the judges of future of our freedoms depends on it.” the bankruptcy courts. Recently, LRCC members have been in- vited to participate in the annual meeting The Lawyer Representatives of the West- of the Chief District Judges, where they ern District also sponsor an Annual Dis-

12 SPRING 2002

LAW LIBRARIES IN THE WESTERN SEATTLE UNIVERSITY LAW LIBRARY DISTRICT OF WASHINGTON The law library at Seattle University is a By Sarah Griffith relative newcomer to Seattle. Prior to Assistant Satellite Librarian, U.S. Courts Library, Seattle 1999, the Law School was located in Tacoma. The library is a short walk up First Hill from downtown. As at most ood legal research involves using all of the tools at one’s academic institutions, the library’s prin- disposal. This includes databases like Lexis, Westlaw, cipal patrons are the law school’s faculty, and Loislaw; Internet resources; and traditional legal trea- staff, and students. Circulation privileges G are limited to faculty, staff, tises. It also includes the expertise of people. If your firm or currently-enrolled students, and individu- organization employs a law librarian, make sure you utilize his or als or law firms who purchase library her skills. Become an avid library user! Consulting a librarian memberships. For $5, members of the general public can purchase a day pass will save you time and ensure that your research methodology is allowing access to the library to use ma- sound. If you do not have the good fortune to have an in-house terials on-site. During reading and ex- librarian, take advantage of the staff and collections of your local amination periods, use of the law library is limited to law students, alumni, faculty, law libraries. Western Washington has many good law libraries and researchers with specific collection and librarians who can skillfully speed your access to the law. needs.

This article describes these local libraries and their resources. Seattle University Law Library houses an GALLAGHER LAW LIBRARY, history; and international materials for extensive collection of primary materials, treatises, and legal periodicals. As a fed- UNIVERSITY OF WASHINGTON the Pacific Rim countries. Often re- eral depository library, the library also SCHOOL OF LAW search material can be located at Gallagher that is not available in any contains a large number of legislative ma- The largest and best-known local law li- other local collection. terials and other government documents. brary is the University of Washington’s This is a good place to look for some of Gallagher Law Library. The library’s Gallagher’s website is a good place to those harder-to-find titles. mission is “to support the curricular and begin your research. It features an ex- research needs of the University of Wash- tensive collection of guides providing The library has an excellent Web site from ington School of Law. The law library’s assistance with basic, advanced, and which users can access Theo, the library’s collections and services are available to subject-specific legal research in many online catalog, to find out if the library the University of Washington community areas of U.S., foreign, and international owns particular materials before visiting at large. As a publicly supported institu- law. The library’s staff has created and the law school. Research guides on the tion, the law library makes its resources maintains a vast collection of links to Web site help you navigate the library’s available to the general public, including online legal resources, arranged by ju- resources in subjects ranging from Wash- the legal, business, and academic com- risdiction and type of law. The library ington appellate practice to civil proce- munities of Washington State and to all also makes the Internet and KeyCite dure, commercial law, community prop- libraries through cooperative agree- available to its public patrons from erty, education law, international law, and ments.” To borrow books, patrons must onsite computer terminals. The refer- land use law. These online guides include live in Washington State and have valid ence staff at Gallagher is excellent. links to the Internet and references to re- photo identification. Many local librarians contact these pros search materials that the library owns. when they do not know where to turn As a major research institution, Gallagher with a research request. WASHINGTON STATE LAW maintains a large collection which in- LIBRARY cludes treatises; briefs from the U.S. Su- The library also operates Copy and The Washington State Law Library in preme Court, Ninth Circuit, Washington Send, a fee-based service providing cop- Olympia serves employees of all three State Supreme Court, and state courts of ies of library-owned materials by fax or branches of the state government, and appeals; practice materials; legislative mail.

13 FEDERAL BAR ASSOCIATION NEWS provides some services to local govern- members of the Bar and other county resi- tion, make good use of the Pierce County ments. It is also open to the public. dents. The Library cooperates with the Law Library. It has a strong general law community to enhance knowledge of the collection that includes the West regional Comprising over 55,000 titles and law and to facilitate access to the justice reporter system, federal and state codes, 330,000 volumes, the library’s legal col- system.” There are two branches of the legislative history materials, and a vari- lection is one of the largest in the North- King County Law Library: the main li- ety of treatises. The library’s online re- west. It includes a comprehensive set of brary in downtown Seattle and a satellite sources include Premise, Lexis, CD Law, primary federal materials, legal periodi- library at the Kent Regional Justice Cen- and KeyCite. cals, and treatises. The library is one of ter. Attorneys and the public can use the the few local law libraries with primary library’s materials on-site without charge. SNOHOMISH COUNTY LAW materials from all 50 states, including To borrow materials you must become a LIBRARY published official reports and statutes. library subscriber for a yearly fee of $55. If you find yourself north of Seattle, try To enroll as a subscriber or for more in- The library keeps a full set of printed the resources at the Snohomish County formation, contact King County’s Patron Law Library. The library’s primary pur- briefs for the Washington Reports, first Services Librarian at (206) 256-0940. and second series, and the Washington pose is “to provide access to legal infor- mation and legal research assistance to Appellate Reports. It also houses a col- The King County Law Library’s down- County residents, the legal community lection of Washington territorial laws and town Seattle collection includes all state and local government departments.” The reports, and copies of early Washington and federal reported decisions, all federal Snohomish County Law Library is open state codes and statutes. laws, the laws of the 50 states and U.S. to the public. territories, and an excellent set of treatises. The library’s Web site provides links to The focus of the Kent Regional Justice informational brochures on Washington The library has about 1,300 separate titles Center collection is Washington state laws and over 20,000 volumes. Its collection state legal research. The brochure on and federal primary materials. The library “Washington Legislative History and comprises all primary legal materials at also houses a good collection of legal pub- the state and federal levels, and second- Legislative Intent” explains how to lo- lications for the non-practitioner. cate the different documents that make ary legal resources including a number of regularly-updated loose-leaf titles. The up the legislative history of a law. To The library’s Web site describes many of library owns a variety of CLE materials find many of these materials, you can call the library’s services and also allows us- from the Washington State Bar Associa- the State Archives, another Olympia re- ers to submit reference questions online. source, at (360) 586-1492. The State tion and the University of Washington Archives maintains committee files on The library provides training programs for Law School Foundation, as well as forms, individual bills introduced in the State subscribers—both one-on-one sessions legal encyclopedias, case digests, law re- Legislature, as well as tapes of floor de- and classes on Internet legal research. ports, reference materials, and finding bates. For current bills and bills from “KCLL Delivers” is a copy and send ser- aids. Two on-site public computers al- sessions immediately past, contact the vice; the library will make copies of stat- low access to some legal materials on appropriate legislative committee di- utes, regulations, cases, and law review CD-ROM, including West’s Washington rectly. articles from its collection available for Cases, the Revised Code of Washington, pick-up at the library or delivery by mail the Washington Administrative Code, Users may submit reference requests on or fax. Attorney General Opinions, and the the Web site and the library staff will re- Washington Court Rules. ply by email. The library provides “copy The library recently received a grant from and send” services for a fee. Copying the Bill & Melinda Gates Foundation and UNITED STATES COURTS services are free for employees of the will be constructing a new computer train- LIBRARY state of Washington. ing center at the Seattle facility. Classes The United States Courts Library is lo- to be offered will include research train- cated on the tenth floor of the William KING COUNTY LAW LIBRARY ing and CLE seminars. Kenzo Nakamura U.S. Courthouse in The mission of the King County Law downtown Seattle. The library’s mission Library is to “serve[ ] the legal and law PIERCE COUNTY LAW LIBRARY is to meet the research needs of the judges related information needs of the county, If your practice is closer to the United and court staff located in the Western Dis- including the judges, county officials, States Courthouse at Tacoma Union Sta- trict of Washington. The library serves

Continued on page 17

14 SPRING 2002

to the judicial day before the noting date. LOCAL CIVIL RULE CHANGES Motions for summary judgment, dis- By Julie K. Fowler missal, class certification, or preliminary injunctions, and briefs in opposition to such motions, may not exceed 24 pages, n January 1, 2002, several amendments to the Local Civil with reply briefs limited to twelve. Rules of the United States District Court for the West ern District of Washington became effective. These While motions to file overlength motions O or briefs are expressly “disfavored” un- amendments may not have been included in your 2002 Washing- der CR 7(f), such a motion may be sub- ton Court Rules—Federal because of the book’s printing date, mitted if it is filed at least three judicial but they can be found at www.wawd.uscourts.gov. This article days before the underlying motion or brief is due, is noted for the day on which it is focuses on the revisions to CR 7 motions practice that the amend- filed, is no more than two pages in length, ments effected, and on other changes that will likely impact your and requests a specific number of addi- tional pages of briefing. No brief in op- civil practice. position may be filed unless one is re- quested by the court. When the moving OTIONS RACTICE ders, motions to withdraw, motions to tax CR 7—M P party is granted leave to file an overlength and retax costs, and motions for default CR 7 has been rewritten almost in its en- brief, the brief in opposition is automati- judgment by the court pursuant to CR tirety. The new rule abolishes the prac- cally allowed an equal number of additional 55(b)(2) where the opposing party has tice of filing separate motions and memo- pages, except that a reply brief may not ex- appeared in the action may be noted for randa; instead, “[t]he argument in support ceed one-half the opposition’s length. of the motion . . . shall be submitted as hearing no earlier than seven court days part of the motion itself.” The motion and prior to filing and service. Service may Motions for reconsideration are “disfa- a proposed order must be served on each be effected by fax or e-mail only by prior vored” under CR 7(h) and will be denied party, and the motion must be filed and agreement of the parties. Opposition absent a showing of manifest error or of the proposed order lodged with the clerk. briefs must be filed and served at least new facts or legal authority that could not See CR 7(b)(1). Requests to strike materi- three court days before the noting date, with reasonable diligence have been als must now generally be included in the with reply briefs due on or prior to the brought to the court’s attention earlier. A underlying briefing rather than in a sepa- judicial day before the noting date. Mo- motion for reconsideration must be filed rate motion. See CR 7(g). CR 6 has been tions and opposition briefs subject to CR “within ten judicial days following the rewritten to abolish motions to shorten time. 7(d)(2) are limited to twelve pages, and order to which it relates”; must be noted reply briefs to six. for the day of filing; and must “point out Under CR 7(d)(1), the time for motions with specificity the matters which the Under CR 7(d)(3), all other discovery to be heard is now the day of filing for movant believes were overlooked or mis- motions and nondispositive motions may stipulations and agreed motions, motions apprehended by the court, any new mat- be noted for consideration no earlier than to file overlength motions or briefs, mo- ters being brought to the court’s attention the third Friday after filing and service. tions for reconsideration, joint submis- for the first time, and the particular modi- Opposition papers are due no later than sions under new rule CR 37(a)(2)(B), fications being sought in the court’s prior the Monday before the noting date, with motions for default, requests for the clerk ruling.” Although a brief may not be filed reply briefs due by at least the judicial day to enter default judgment, and motions for in opposition to a motion for reconsidera- before the noting date. Motions and op- the court to enter default judgment where tion unless requested by the court, “[n]o position briefs subject to CR 7(d)(3) are the opposing party has not appeared. motion for reconsideration will be granted limited to twelve pages, and reply briefs These motions are limited to six pages. without such a request.” See CR 7(e)(1). to six. Dispositive motions may be noted for consideration no earlier than the fourth Under CR 7(i), telephonic motions may Under CR 7(d)(2), motions for relief from Friday after filing and service. As with be heard without the filing of motion pa- a deadline or limit imposed by an order other motions subject to CR 7(d)(3), op- pers upon the request of any party and or rule, motions to amend pleadings, mo- position papers are due no later than the with the court’s approval. All counsel tions to quash, motions for protective or- Monday before the noting date, and reply must participate in the call during which briefs must be filed and served on or prior

15 FEDERAL BAR ASSOCIATION NEWS the request for such a motion is made un- note its motion for the day on which it is extended to 180 days after the filing of less it can be shown that reasonable but filed. The moving party must prepare a the complaint. unsuccessful efforts were made to include “CR 37 Joint Submission” setting forth all counsel. the context of the dispute and the relief The procedure for filing a motion for costs requested, summarizing each disputed dis- under CR 54(d) has been simplified. CR 51—INTEGRATED covery request and the opposing party’s SUBMISSIONS OF JURY objections thereto, and stating the CR 101(c) provides that a motion that was pending in state court at the time of an INSTRUCTIONS movant’s position and the legal authority supporting it. The opposing party must action’s removal will not be heard by the Submission requirements for jury instruc- file and serve its opposition within five U.S. District Court for the Western Dis- tions have changed dramatically. Previ- judicial days after receiving the motion. trict unless it is noted in accordance with ously, CR 51(a) simply required each Any further reply by the moving party is CR 7(d). party to “file and serve proposed jury in- limited to one half page. The CR 37 sub- structions.” Now this subparagraph re- missions are limited to twelve pages of quires all parties to exchange, twenty-one text per party. The moving party must days before jury instructions are due, pro- certify that it has complied with the re- posed jury instructions, verdict forms, and, U.S. Attorney John McKay quirements of the rule. if necessary, special interrogatories. The Continued from page 11 plaintiff must submit proposed standard CR 10—FORMATTING OF civil instructions, and each party must McKay’s work for the EJC—particularly submit proposed instructions on any is- PLEADINGS congressional testimony that he gave in sue on which it will bear the burden of CR 10(e)’s detailed formatting require- 1995—brought him to the attention of the proof at trial. The parties must confer with ments for pleadings have been revised. Board of Directors of Legal Services Cor- the objective of filing one set of instruc- Among numerous other changes, original poration, a private, federally-funded, non- tions, verdict forms, and interrogatories. documents filed with the clerk may not profit corporation established by Congress Under CR 51(b), if the parties cannot be gathered in binders or include tabs— in 1974 to ensure equal access to justice agree on one such set, they must file a binder clips and light-colored dividers by providing grants to independent local document entitled “Joint Instructions” re- should be used instead. Originals should legal aid programs. The LSC Board ap- flecting agreed-upon instructions, verdict be signed in black ink. Judges’ copies of pointed McKay President of the corpora- forms, and interrogatories; and a docu- pleadings—which should not be delivered tion in 1997. His primary charge was to ment entitled “Joint Statement of Disputed directly to chambers unless the parties fend off conservative efforts to eliminate Instructions” reflecting, in a format estab- have been so instructed—may be submit- LSC’s funding. In this he was entirely lished by the rule, disputed instructions, ted in binders, and the use of tabs to sepa- successful, as LSC’s annual appropriation verdict forms, and interrogatories. rate exhibits submitted with such copies increased from $283 million in 1997 to is “encouraged.” Judges’ copies of ex- $330 million in 2001. Under revised CR 51(c), instructions must hibits should be highlighted to reflect tes- be taken from the most recent Manual of timony referenced in the pleadings. Other McKay resigned as President of LSC in Model Jury Instructions for the Ninth Cir- requirements are set forth in CR 10(e) and May 2001 so that he could be considered cuit or, where state law applies, from the CR 10(g) (governing stipulated orders). for the position he currently holds. As a Washington Pattern Jury Instructions. moderate Republican, he had become an Deviations must be explained. A table of CR 5(G)—SEALING attractive candidate upon the defection of contents must be included listing, for each DOCUMENTS Vermont Senator Jim Jeffords from the Republican party, which event had put the instruction, its number, title, source, page Under CR 5(g)(3), all documents to be Democrats in control of the Senate. Presi- number, and proposing party. It is recom- filed under seal must be submitted in a dent Bush nominated McKay to serve as mended that the parties provide the judge separate envelope clearly marked “FILED U.S. Attorney for the Western District on with an uncited copy on disk. See CR 51(d). UNDER SEAL.” Additional require- September 19, 2001. The Senate con- ments pertaining to the sealing of court ISCOVERY ISPUTES firmed his nomination a month later, and CR 37—D D records are reflected in revised CR 5(g). Parties now have the option of seeking to McKay began his tenure at the end of October. He has already faced his share compel discovery by motion pursuant to OTHER CHANGES OF NOTE CR 7(d)(3), or by means of an expedited of challenges, not the least of which was Under CR 23(f)(3), the time for filing a the October 12, 2001 murder of Assistant motion procedure found in revised CR motion for class certification has been 37(a)(2)(B). Under this rule a party may

16 SPRING 2002

U.S. Attorney Tom Wales, from which big issue in terms of prevention is the shar- The library in the Nakamura Courthouse McKay’s office is still reeling. “I didn’t ing of intelligence and having a structure is the second oldest library in the Ninth know Tom well,” McKay says, “but to through which appropriate law enforce- Circuit library system. It has an excellent walk in on October 30 and see the yellow ment information flows.” legal treatise collection with materials on tape around his office was awful. It’s a federal procedure, admiralty law, mari- terrific chill, to think that Tom might have Not all of McKay’s work as U.S. Attor- time law, bankruptcy law, and immigra- died in the line of duty.” ney will be at the policy level. He intends tion law. Librarians at the court maintain to handle some cases himself, and is cur- a vertical file containing information about Among McKay’s priorities are develop- rently prosecuting four defendants court history and local media coverage of ing appropriate responses to the threat of charged with smuggling marijuana from cases and the courts. The library also terrorism; hiring more women and minori- British Columbia into Washington. There owns publications featuring biographies ties; improving communication with fed- is nothing particularly significant about of local judges. eral, state, and local law enforcement the case, he says. “The e-mail just went agencies; and combating the trafficking out from the chief of the drug unit, and I of ecstasy and other designer drugs. answered it and said, ‘I’ll take that one.’” GALLAGHER LAW LIBRARY, McKay is primarily “interested in out- McKay will also be volunteering at the UNIVERSITY OF WASHINGTON comes.” He understands that the U.S. Northwest Justice Project, which has set SCHOOL OF LAW Attorney has a great deal of discretion in up a toll-free number, fax machines, and determining what cases to prosecute. He computer terminals that allow volunteers 1100 NE Campus Parkway is taking steps to implement a philosophy to provide free legal advice long-distance Seattle, WA 98105-6617 about the use of that discretion and the to persons around the state—most impor- (206) 543-4086 proactive commitment of federal re- tantly, in McKay’s view, in places that sources to accomplish certain objectives “never have had and never will have a le- SEATTLE UNIVERSITY LAW (such as the eradication of methamphet- gal aid office.” LIBRARY amine labs) that are in the public interest. 900 Broadway “The normal way prosecutors think,” McKay’s NJP volunteer work is the sort Seattle, WA 98122-4340 McKay says, “is output—we’re going to of activity in which he particularly enjoys (206) 398-4220 do a lot of terrorism prosecutions. Well I being involved. McKay’s successes cer- hope to God we don’t do a lot of terror- tainly reflect his legal and policymaking WASHINGTON STATE LAW ism prosecutions, but federal law enforce- abilities and his capacity to build consen- LIBRARY ment has a role in terrorism prevention.” sus across a diversity of viewpoints. But what truly animates McKay is his passion- Temple of Justice While McKay is the Department of ate belief that, in the words of Learned P.O. Box 40751 Justice’s chief law enforcement officer in Hand, “[i]f we are to keep our democracy, Olympia, WA 98504-0751 western Washington, he recognizes that there must be one commandment: thou (360) 357-2136 technically he is not the principal federal shalt not ration justice.” It is this belief ING OUNTY AW IBRARY law enforcement officer in this District, that makes McKay a superior choice for K C L L since other agencies with offices in Se- U.S. Attorney, and suggests that this Dis- Suite W621 County Courthouse attle (the Secret Service and U.S. Customs trict will be in good hands during his ten- 516 Third Avenue Service, for example) are not hierarchi- ure. Seattle, WA 98104-2312 cally inferior to the DOJ. But “most agen- (206) 296-0940 cies,” he says, “consider me the chief fed- eral law enforcement officer simply be- 1N Regional Justice Center cause if they are attempting to have a case Law Libraries 401 Fourth Avenue N. prosecuted they can’t do it without my Continued from page 14 Kent, WA 98032-2905 office.” This puts the U.S. Attorney in (206) 205-2900 the unique position of being able to coor- the Ninth Circuit Court of Appeals, the dinate the efforts of the various federal U.S. District Court for the Western Dis- PIERCE COUNTY LAW LIBRARY law enforcement agencies operating in the trict of Washington, and the Bankruptcy Room 1A-105 County City Building Western District. Such coordination, Court. It is open on weekdays to members 930 Tacoma Ave S. McKay feels, will be particularly impor- of the Bar and the general public. Tacoma, WA 98402-4470 tant in the terrorism context, where “the (253) 798-7494

17 FEDERAL BAR ASSOCIATION NEWS

SNOHOMISH COUNTY LAW UNITED STATES COURTS LIBRARY LIBRARY http://www.co.snohomish.wa.us/council/ 1018 William Kenzo Nakamura U.S. Law%20Library/LawLibrary.htm Courthouse 1010 Fifth Avenue Courthouse, 3000 Rockefeller, MS 703 Seattle, WA 98104 Everett, WA 98201-4046 (206) 553-4475 (425) 388-3010

ANNOUNCEMENTS

FEDERAL BAR SERVICE AWARD Nominations are sought for the 2002 Federal Bar Service Award. It was first given in 1986. Previous recipients include Abraham A. Arditi, Charles S. Burdell, Jr., Thomas GRAMMAR W. Hillier II, and Thomas C. Wales (posthumously). The selection criterion is excep- tional service by an individual to the bar or the public. The service recognized may be GREMLINS long-term or a single, extraordinary contribution. HOWEVER – BUT Please submit the name of any nominee and a brief statement of reasons to Allison S. There is a tendency by some to use how- Wallin, FBA Trustee, Lane, Powell, Spears, Lubersky, 1420 Fifth Avenue, Suite 4100, ever incorrectly in a sentence by using it Seattle, WA 98101, 206-223-7094. The deadline is September 1, 2002. This year’s the same way they use but. recipient will be determined by vote of the Trustees. The award will be presented at the annual dinner in December 2002. Sentences such as the following are seen often: “She doesn’t use the revised manual often, however, I think she will eventually learn the new procedures.” VACANCY DUE TO RETIREMENT, AND NEW POSITION The United States District Court, Western District of Washington announces the retire- If but were used instead of however, the ment of the Honorable John L. Weinberg from his position as full-time United States comma after often is all that would be Magistrate Judge in Seattle, Washington. Applications are now being accepted for the necessary. But since however does not position being vacated in April 2003. function the same way as but, a period or semicolon is required after often. The United States District Court, Western District of Washington also announces the creation of a new full-time United States Magistrate Judge position in Tacoma, Wash- Used as it is in the example sentence, how- ington. Applications are now being accepted. The effective date of the position will be ever serves as a conjunctive adverb. The upon the passage of a federal budget for 2002-2003, expected to occur on approxi- function of such a word is to relate two mately October 1, 2002 or soon thereafter. main clauses, but because the two main clauses remain independent, a comma is Parties interested in the foregoing positions may pick up a copy of the complete vacancy an insufficient separation of the two. announcements and application forms in person, via the court’s web site at www.wawd.uscourts.gov, or by contacting: But is different in that it is a coordinating conjunction and is used to link two words Clerk, U.S. District Court Deputy in Charge or word groups of the same kind. Only a 215 U.S. Courthouse U.S. District Court comma is required before it. 1010 Fifth Avenue 1717 Pacific Avenue, Room 3100 Seattle, WA 98104 Tacoma, WA 98402 “She doesn’t use the manual often; (206) 553-5598 (352) 593-6313 however, I think she will eventually learn the new procedures.” Applications must be submitted by potential nominees only and received no later than Reprinted with permission from Grammar Gremlins June 30, 2002. by Don K. Ferguson. For orders call 1-800-986-4135.

18 SPRING 2002

The Federal Bar Association of the Western District of Washington

Reply to: Federal Bar Association of the James A. Smith, Jr., President Western District of Washington Kevin D. Swan, Vice-President P.O. Box 21006 Scott E. Collins, Treasurer Seattle, Washington 98111-3006 Steve Y. Koh, Secretary Telephone: (206) 624-9777 Michele A. Gammer, Past President Website: www.fba-wdwash.org 2002 REGISTRATION FORM

Name: ______WSBA #: ______Firm/Office Name: ______Address: ______E-Mail: ______Telephone: ______New Member? Check Here: ❏ Facsimile: ______New Address? Check Here: ❏

Dues: (make checks payable to the Federal Bar Association of the Western District of Washington) ❏ Payment for 2002 Annual Dues Made Previously ❏ $50 Annual Dues Payment Enclosed (regular members who have been admitted to any state bar association (or the bar association of the District of Columbia, Puerto Rico, or any United States territory) for at least 10 years) ❏ $40 Annual Dues Payment Enclosed (regular members who have been admitted to any state bar association (or the bar association of the District of Columbia, Puerto Rico, or any United States territory) for at least 2 years but less than 10 years) ❏ $40 Annual Dues Payment Enclosed (regular members who, regardless of their date of admission to a bar association, in their capacity as lawyers are (1) public officers or employees, or (2) employed by non-profit, public interest entities) ❏ $0 Annual Dues Payment Enclosed (regular members who have been admitted to any state bar association (or the bar association of the District of Columbia, Puerto Rico, or any United States territory) for less than two years)

Committee(s) On Which You Wish To Serve (check all applicable): ❏ Admiralty ❏ Criminal Law Chair: James R. Woeppel (206-624-2650) Chairs: Dan Dubitzky (206-467-6709) Linda C. Severin (206-662-9087) ❏ Alternative Dispute Resolution Chair: Thomas J. Brewer (206-623-5321) ❏ Ethics and Practice Chairs: William J. Bender (206-623-6501) ❏ Appellate Practice Bruce E.H. Johnson (206-628-7683) Chairs: Camden M. Hall (206-447-8951) Allison S. Wallin (206-223-7094) Michael B. King (206-223-7046) ❏ Intellectual Property ❏ Bankruptcy Chair: Warren Rheaume (206-447-0900) Chairs: Tom McBride (206-892-3218) Flint W. Murfitt (206-706-5599) ❏ Local Rules Chair: Carolyn Cairns (206-626-6000) ❏ Annual Program/CLE Chair: Todd D. True (206-343-7340) ❏ Membership Beth Andrus (206-623-6501) Chair: Donald M. Currie (206-553-1565) Andrew H. Salter (206-622-8484) ❏ Pro Bono Panel ❏ Court Services Liaison Chair: Val Hughes (206-583-8840) Chair: Lish Whitson (206-695-4380) ❏ Website/Communications Chairs: Anthony L. Rafel (206-624-3600) Allison S. Wallin (206-223-7094) Important Note: Under the Association’s bylaws, membership is open to everyone who is: (a) licensed to practice law by the Supreme Court of Washing- ton and (b) a member in good standing of the Bar of the United States District Court for the Western District of Washington. By submitting this form to the Association, you confirm that you meet these criteria. 19 FEDERAL BAR ASSOCIATION NEWS

FEDERAL BAR ASSOCIATION of the Western District of Washington

OFFICERS President James A. Smith, Jr. (206) 292-1770 Federal Bar Association of the Vice President PRSRT STD Kevin D. Swan (206) 623-7580 Western District of Washington P.O. Box 21006 U.S. POSTAGE Treasurer Seattle, Washington 98111-3006 PAID Scott E. Collins (206) 292-1144 SEATTLE, WA PERMIT NO. 3466 Secretary Steve Y. Koh (206) 583-8888 Immediate Past-President Michele A. Gammer (425) 703-8777

TRUSTEES John S. Congalton Laura J. Buckland Sheryl Gordon McCloud James M. Shaker Allison S. Wallin

COMMITTEE CHAIRS Admiralty James R. Woeppel ADR Committee Thomas J. Brewer Appellate Practice Camden M. Hall Michael B. King Bankruptcy Tom McBride Flint W. Murfitt Annual Program/CLE Todd D. True Court Services Liaison Lish Whitson Ethics and Practice William J. Bender Bruce E.H. Johnson Allison S. Wallin Federal Appointments Jenny Durkin Local Rules Carolyn Cairns Membership Donald M. Currie Pro Bono Panel Valerie L. Hughes Website/Communications Anthony L. Rafel Allison S. Wallin