SUMMER 2003 FEDERAL BAR ASSOCIATION of the Western District of NEWS NEWS NEWS NEWS VOL. 26 NO. 1 SUMMER 2003

ARGUING THE IOLTA CASE FEDERAL BAR ASSOCIATION NEWS

PRESIDENT’S MESSAGE FBA ESTABLISHES WILLIAM L. DWYER JURY PROJECT AWARD asked Duncan Manville, our FBA News editor, what he was looking for in a president's column. He let slip words like I"president's prerogative"—dangerous territory to cede to a one- time history major. Still, deciding what to write was actually pretty easy once I thought about it. Better yet, it's something you'll want to know about.

In early 2002 we lost the Honorable William its resistance to tyranny, between have made individual donations as well. I L. Dwyer, a universally respected trial the government and the powerless am asking each of you to join me in lawyer and judge who was also a friend individual. In all kinds of cases it making a personal donation to the Dwyer and mentor to many of us. I don't need has given its members a unique first- Jury Project Award, and to encourage your to belabor Judge Dwyer's contributions hand experience in the workings of firm to do so as well. Printed below is a to the public, bench, and bar—the honors government. It has endured form to mail in with your donation. We and acknowledgments that he received because it has worked. understand from the University of during his long career speak for Washington that your gifts will be tax themselves. The Dwyer Jury Project Award will help deductible pursuant to applicable law. to promote discussion about the jury In Association Board meetings and at system, and it will also advance another In my view, the William L. Dwyer Jury public events following Judge Dwyer's of Judge Dwyer's causes-the education Project Award will promote two valuable death, many of us talked about finding a of young lawyers. causes and will honor Judge Dwyer's way to honor his memory in a manner memory in a way that I hope he would that would be consistent with how he had Of course, in order for this program to be have found meaningful. This is a worthy lived his life. The Board decided that the a success, we need to raise money. effort, and I encourage you to contribute Federal Bar Association of the Western Fundraising is under way. A number of to it today. District of Washington, together with the firms, large and small, have donated to , would establish the program, and many of our colleagues Kevin D. Swan the William L. Dwyer Jury Project Award. This endowment will provide an annual scholarship to a student of the University William L. Dwyer Jury Project Award of Washington School of Law, based on Please make your check payable to UW Dwyer Jury Project Award. the outcome of a writing competition on the American jury system. Most of our Name: ______Amount Enclosed: $______members know that the public institution Firm (if this is a contribution by a firm): ______of the jury was a cause that Judge Dwyer championed throughout his professional Address: ______life. As he wrote in his 2002 book on the City/State/Zip: ______subject, In the Hands of the People: The Trial Jury's Origins, Triumphs, Troubles, Return with your check to: and Future in American Democracy: Dexter Bailey, Assistant Dean At several turning points in Anglo- University of Washington School of Law American history the jury has 1100 N.E. Campus Parkway interposed its common sense, and Seattle, Washington 98105

2 SUMMER 2003 FEDERAL BAR ASSOCIATION of the Western District of Washington NEWS NEWS NEWS NEWS In this issue:

President’s Message ...... 2 Profile of Judge Ronald B. Leighton...... 4 Electronic Filing: Top Five Reasons to Participate ...... 6 Association Celebrates Silver Anniversary at 2002 Annual Dinner ...... 7 Fifty Questions in Thirty Minutes: An Inside Look at Oral Argument in Brown v. Legal Foundation of Washington ...... 11 Notice of Annual Meeting ...... 14 Registration Form ...... 15

On the cover: (l-r) Charles Sipos, Kathleen O’Sullivan, David Burman, Nicholas Gellert

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: Duncan Manville Riddell Williams P.S. 1001 Fourth Avenue Plaza, Suite 4500 Seattle, WA 98154-1065 (206) 624-3600

3 FEDERAL BAR ASSOCIATION NEWS

PROFILE OF JUDGE RONALD B. LEIGHTON

By Duncan Manville

n 1937, the year before the Federal Rules of Civil Procedure took effect, one in five federal civil cases went to trial. By I1990, that number had dropped to 4.3%. Our state courts have witnessed a similar progression away from the public adjudication of disputes. But in 1976, when Ronald B. Leighton— the Western District's newest U.S. District Court Judge—accepted an associate position with Tacoma-based Gordon, Thomas, Honeywell, Malanca, Peterson, & Daheim PLLC, a young Tacoma attorney looking for cases to try could still find them without too much difficulty.

In some areas of law, that is. Judge next several years, building a "rather the annual Asparagus Festival, Stockton Leighton wanted to try cases. He had eclectic" practice encompassing air- is the focal point for agribusiness in the debated in high school and enjoyed trial crash, business, environmental, civil- San Joaquin Valley. When Judge practice courts as a law student. As an rights, Indian-treaty, and attorney- Leighton was twelve, his family moved ambitious new associate, however, he malpractice litigation on behalf of from Stockton to Salinas, California, some was leaning toward antitrust law plaintiffs, defendants, corporations, fifteen miles east of Monterey and 100 because "the perception was that the municipalities, and individuals. He miles south of San Francisco. Known best and the brightest went into ultimately tried over 60 cases to verdict as the "Salad Bowl of the World," the antitrust." He was "rescued," he says, or other decision during his 26-year Salinas Valley grows more produce than by Bud Daheim, who told him, "Look, career as a litigator. any other area in the U.S.—including 80 you're going to like trying cases. Why percent of the nation's lettuce, 50 percent don't you try cases for a while? And In 1992, Judge Leighton was nominated of its cauliflower and mushrooms, 25 then you can decide if you want to go by the first President Bush to serve on percent of its celery, 60 percent of its into antitrust and that's fine, but if you the U.S. District Court for the Western broccoli, and 90 percent of its artichokes. go into antitrust right away, you're just District of Washington, but he never (Today Judge Leighton's taste in food going to be a bag carrier. And you don't received a hearing on his nomination. The runs more toward anything that can be want to be a bag carrier." nomination was withdrawn by President cooked on a barbecue.) Clinton. Ten years later, in January 2002, Judge Leighton did not want to be a bag- the second President Bush nominated Judge Leighton's home in Salinas was an carrier. So he began looking for trial Judge Leighton to fill a vacancy created 80-acre ranch rented by his parents. work, and within three months was when U.S. District Court Judge Robert Judge Leighton worked the ranch with trying a securities fraud case-the first J. Bryan took senior status. The U.S. his father (a schoolteacher and the real trial he had ever observed. Senate confirmed Judge Leighton's principal of one of the tougher schools in "Fortunately," he says, "television was nomination on November 14, 2002, and the Salinas City School District), his close enough as a facsimile that I knew Judge Leighton received his commission mother (who worked for the School how to comport myself, what to do, and on November 26. District at North Salinas High School), when to do it." (Note: Calista Flockhart and siblings Randy, Janice, and Janie. was only twelve in 1976.) "It was a Judge Leighton was born in 1951 in "We had everything," Judge Leighton wonderful experience." Judge Leighton Stockton, California, about 80 miles east says. "Everybody except for me was tried a case every few months for the of the San Francisco bay area. Home of into 4-H and Future Farmers of America

4 SUMMER 2003 and so Janice had sheep, Janie had pigs, By that time, Judge Leighton says, he 1976. Since 1989, he has been an Officer Randy had steers, and I kind of took care had decided he was a Northwesterner, and Director of the R. Merle Palmer of the horses." Judge Leighton's parents in large part because he wanted to live Minority Scholarship Foundation, a non- and siblings still live in Salinas, all within in a community where he could have an profit organization that provides funding five miles of each other. His parents impact. Tacoma was such a and mentoring so that minority youth of are retired. His brother Randy rode community—a place where life did not Pierce County can attend college. He rodeo for a number of years, and is now have to be attacked but could be lived. lives in Lakewood with his wife Sally a horse trainer. ("He's very talented," And Gordon, Thomas was a firm that (also an accomplished lawyer), and their says Judge Leighton.) Sister Janice is prided itself on a commitment to two sons, Ben and Joe. an agricultural science teacher at Alvarez community involvement: "Better High School in Salinas. And sister Janie municipal government, downtown Judge Leighton's heroes are Willie Mays is married and a part-time school-bus development, economic revitalization, the and Abraham Lincoln—the latter, Judge driver. arts, you name it, somebody from Gordon Leighton notes, at once an exceptional Thomas was probably right in the middle storyteller and a self-deprecating man While Judge Leighton's siblings focused of it. That was something that we were who never took himself too seriously. ("I their attention on farming activities, Judge expected to participate in, and we did." am not an accomplished lawyer," Leighton studied, ran for and was elected Judge Leighton is obviously proud of his President Lincoln once wrote.) Judge to various leadership positions in school, former firm, for which he was frequently Leighton has endeavored to emulate and played baseball and basketball. a spokesperson. (In 1995, two of Judge those qualities throughout his career. Before he graduated from high school in Leighton's former partners—Jim Waldo Bradley Jones, one of Judge Leighton's 1969, two professional baseball teams— and Jay Inslee—were running for former partners at Gordon, Thomas, the San Francisco Giants and the Detroit governor. Judge Leighton quipped to a reports that several months ago one of Tigers—invited him to their California reporter for the Seattle Post-Intelligencer Judge Leighton's law clerks overheard tryouts. Unfortunately, Judge Leighton that "We've got at least 20 lawyers who an attorney on the losing end of one of "ran the hundred in about an hour," and could run the state but we could only Judge Leighton's rulings complaining that was told after the tryouts not to call either spare two." ) Although Judge Leighton the decision was the dumbest that she team, that they would call him. says his family misses him, he has never had ever heard. Judge Leighton's looked back or regretted his decision to response: "She must not know me very Seeing the writing plainly inscribed on relocate from California to Tacoma. well. I'm capable of much dumber the wall, Judge Leighton enrolled at decisions than that." Judge Leighton, Mr. Whitworth College in Spokane, As a Gordon, Thomas partner, Judge Jones notes, also spent well over half his Washington. He was only the second Leighton was a Fellow of the American speech at his investiture ceremony in member of his family to attend college— College of Trial Lawyers and the February 2003 praising Judge Bryan and his father had earned a degree under the International Society of Barristers, and his contributions to the community. G.I. Bill. It was Judge Leighton's first was listed in the "Best Lawyers in foray outside California. "I went there America." In a poll of Washington Judge Leighton also admires President to play baseball," he says, "and fell in love attorneys conducted in 2001 by Lincoln because while he was practical, with the school." He majored in political Washington Law & Politics, he was he possessed "certain core values that science, and minored in history and voted one of the "Ten Best Lawyers in were not for sale." The same appears English. After graduating from Washington." He is a past President of to be true of Judge Leighton. On the Whitworth in 1973, he enrolled at the the Washington Defense Trial Lawyers practical side, Judge Leighton believes University of California, Hastings College and the Washington Chapter of the that judges must be "user-friendly." He of Law. Law school, he says, was American Board of Trial Advocates; and is fairly animated on the bench—partly "okay," but he was in a hurry to get out a past Chairman of the Pierce County because "like most lawyers, I'd rather and start practicing. He received his J.D. Civil Service Commission and the talk than listen"; but also because in 1976, and clerked for Justice Frank Washington State Bar Association engaging in a give and take with the K. Richardson of the California Supreme Judicial Recommendation Committee. lawyers who appear before him helps Court. He has been a Member of the Board of him to understand the parties' respective Trustees of Whitworth College since positions. And as I learned when I called

Continued on page 13 5 FEDERAL BAR ASSOCIATION NEWS

ELECTRONIC FILING: TOP FIVE system. CM/ECF notifies you by e- mail that a document has been filed, and REASONS TO PARTICIPATE provides you with a hyperlink to the document. Notification is transmitted By Shirley Lindberg instantly with the posting of the document or order! With the notification lectronic filing has arrived! On June 23, 2003, the U.S. comes one free look at the document. District Court for the Western District of Washington went Be sure to save the document if you live with its new electronic filing program. There are many think you will want to see it again. If E you do not, you can still retrieve the reasons why litigants and law firms should register to use the new document later via WebPacer for a program. Among those reasons are five that appear to be clear nominal fee. front-runners: • Instant notification of filed documents In addition to instant e-mail notification of the entry of orders, registered users • Savings of internal staff time and resources of the CM/ECF system also receive • Flexibility of filing similar notification of the filing of other • Ability to search documents documents. • Ability to monitor other cases of interest Which takes us to reason number two. . . . A LITTLE BACKGROUND INSTANT NOTIFICATION OF FILED SAVINGS OF INTERNAL STAFF DOCUMENTS The Case Management/Electronic Case TIME AND RESOURCES Files (CM/ECF) system that replaced Almost every day, callers contact the Registration for CM/ECF comes with the Court's aging case management Clerk's Office to ask, "Has the Court the benefit of service of documents system is modeled on a system that is entered my order yet?" or "Has a pursuant to Rule 5 of the Federal Rules being implemented nationwide in the document been filed with the court? It's of Civil Procedure. Documents filed federal judiciary. CM/ECF is now supposed to be filed today." electronically with the Court are operational in 47 bankruptcy courts and instantly sent to all other counsel of 17 district courts. The Bankruptcy To expedite the process of advising record who are registered with the Court for the Western District of litigants about the entry of orders, in May Court, thereby eliminating the need for Washington has been using CM/ECF 1999 the Court developed and you or your staff to copy the documents since June 2001. implemented a fax noticing system for orders and other documents generated and distribute them by mail or Electronic filing allows all registered by the Court. More than 5000 attorneys messenger. Service is thus users to file their documents with the consented to receive fax notice from the accomplished efficiently through the Court via the internet. The electronic Court instead of having orders sent to Court's CM/ECF system. document is the official record of the them via U.S. Mail. Thus, many of you You will also be able to save staff time Court. Paper documents that are filed took advantage of the opportunity to and resources by filing the documents with the Court are scanned and uploaded receive orders from the Court on the date via the internet rather than having to into the system by court personnel. The of entry. The fax system was developed make that last-minute "mad dash" to the paper documents are discarded upon as an adjunct to the aging case courthouse. completion of the upload process. The management system. The demise of the official Court record is thus "paperless." old system meant the simultaneous Which takes us to the next reason why demise of fax noticing. you want to file electronically. . . . Enough background-now on to those five reasons why you should join your Don't panic! CM/ECF allows you to FLEXIBILITY OF FILING colleagues in filing your documents obtain copies of orders and other electronically with the Court. documents even faster than the fax CM/ECF currently allows litigants to file documents with the Court anywhere, Continued on page 14 6 SUMMER 2003

ASSOCIATION CELEBRATES SILVER volunteer counsel to pro se litigants. She has served as a member of magistrate ANNIVERSARY AT 2002 ANNUAL DINNER judge merit selection panels, a lawyer representative to the Ninth Circuit By Duncan Manville Judicial Conference, a member of the

he Federal Bar Association of the Western District of Washington held its 19th Annual Dinner on December 4, T2002 in the Spanish Ballroom of the Four Seasons Olympic Hotel. The dinner commemorated the Association's founding 25 years ago by Judge Walter McGovern, Al Malanca, Bill Ferguson, and others. The 2002 Annual Dinner was preceded noted, is more important than the jury. by the annual winter CLE, which And no judge placed greater value on featured a session on electronic the jury than the late Judge William L. discovery and a discussion of civil Dwyer, who wrote in his 1979 book In Michele Gammer liberties and national security issues the Hands of the People: Juries and among a panel that included Chief U.S. Liberty in the United States that "[b]y Association's ADR Task Force, a District Judge John C. Coughenour, defeating unjust prosecutions, by Trustee of the Association's Board of U.S. Attorney John McKay, Federal protecting the weak against overzealous Trustees, and President of the officialdom, by fending off oppressive Association—all, Ms. Jones noted, in an uses of the law, jurors have strengthened "upright, ethical, and publicly quiet" not just liberty but the rule of law itself- manner that has elevated the bar's good and they still do." Mr. Swan announced name. the establishment of the William L. Dwyer Jury Project Award, a monetary Next on the program was the prize that will be presented each year presentation of a plaque to the to a student at the University of Honorable John L. Weinberg in Washington School of Law who wins a appreciation of his many years of writing competition on the American service as a Magistrate Judge of the jury system. U.S. District Court for the Western District of Washington. Retired U.S. Mr. Swan then introduced Karen Jones, Magistrate Judge Gene Wilson, Ellen who presented the Association's Service Kevin Swan Award to Michele Gammer. Ms. Jones noted that Ms. Gammer's contributions Public Defender Thomas W. Hillier, II, to the Association over the years have and National ACLU President Nadine been numerous and important, proving Strossen. the old adage that "if you want to get something done, give it to someone At the dinner, FBA President Kevin who's busy." Not long after she moved Swan spoke about the ways in which to Seattle in the early 1980s and joined the events of the previous year had Schweppe Krug & Tausend, Ms. served to reinforce the importance of Gammer, with the cooperation of the our justice system in protecting the rights judges and magistrate judges of the U.S. of the relatively powerless in times of District Court for the Western District Magistrate Judge Gene Wilson (Ret.) national stress. In this regard no of Washington, established the Federal American legal institution, Mr. Swan Civil Rights Pro Bono Panel to provide Text continued on page 10 7 FEDERAL BAR ASSOCIATION NEWS

Clockwise from top left: Michael Fleming, Bruce Kriegman, Judge Paul Snyder, Susan Jahnke, Charles Ekberg; Kevin Swan, Magistrate Judge John Weinberg, Sarah Weinberg; William Bender, Judge Thomas Zilly, Rita Bender; James Smith, Jr., Todd True, Judge Marsha Pechman; Patrick McVey, Irwin Schwartz; Judge M. Margaret McKeown, Judge ; Judge Betty Fletcher; Marie Farrelly, Angelo Calfo, Judge Harry McCarthy; Richard Siefert, Mark Hough, David Garrison; Shawn Otorowski, Judge Walter McGovern, James Smith, Jr.

8 SUMMER 2003

Clockwise from top left: Karen Jones, Carolyn Cairns; Fredric Tausend, Richard White; Tracy Morris, Magistrate Judge Ricardo Martinez; John McKay, Cyrus Vance, Jr.; Judge Barbara Jacobs Rothstein, Judge Robert Bryan, Michael Withey, Cathy Bryan; Al Malanca, Glenna Malanca; Sarah Weaver, Judge Thomas Glover, Gretchen Glover; Magistrate Judge Gene Wilson (Ret.), Judge Philip Swigert (Ret.), Alice Swigert; Judge Franklin Burgess, Paula Olson; Paula Boggs, Chief Justice Gerry Alexander, James Williams, Magistrate Judge Monica Benton

9 FEDERAL BAR ASSOCIATION NEWS

Lenhart Kramer (one of Judge judiciary as a check on efforts by units But if legal rules can be exploited by the Weinberg's former law clerks), and the of social power to enhance themselves socially powerful, Judge Wolcher noted, Honorable Barbara Jacobs Rothstein at the expense of the socially powerless. they can also be used to hold the socially offered thoughts and reminiscences Taking issue with John Adams' powerful accountable, largely because about Judge Weinberg, and their best characterization of a democratic republic they must be interpreted by judges. In wishes on his imminent retirement. as "a government of laws and not of the United States, unlike in countries men," Prof. Wolcher noted that "there is operating under Soviet-era judicial no 'metaphysical certainty' in law." systems, judges are independent. A U.S. President Adams' epigram, Prof. judge does not automatically do the bidding of the socially powerful, but rather looks into the past for documents and practices that might, depending on the facts of the case before her, be interpreted to the disadvantage of the elite. From the standpoint of justice, Prof. Wolcher observed, the rule of law is thus "the chance to use social power to thwart social power." But if the rule Ellen Lenhart Kramer of law in that sense is an achievement, it is "an achievement that must be The evening's keynote speaker was continually won" in disputes before Professor Louis Wolcher of the independent judges who understand their role as "creative and responsible actors Prof. Louis Wolcher in an unfolding and uncertain historical Wolcher said, describes a government drama." Such a "humanized" version of built on a system not of legal rules the rule of law, Prof. Wolcher concluded, capable of mechanical application, but is "well worth fighting for." of fairly uniform social responses that are "wired into us by our legal and social training." The danger inherent in the system, according to Prof. Wolcher, is that this "unthinking process of social interpretation and enforcement" can become a tool of special interests, prejudice, and injustice.

Magistrate Judge John Weinberg

University of Washington School of Law. Professor Wolcher delivered a speech entitled "What is the Rule of Law?—Perspectives from Central Judge Barbara Jacobs Rothstein, Chief Judge Europe and the American Academy." John Coughenour The text of Prof. Wolcher's speech has been published at 78 Wash. L. Rev. 515 (2003).

Prof. Wolcher's speech was a reflection James Stoetzer, Judge Ronald Leighton on the importance of an independent

10 SUMMER 2003

FIFTY QUESTIONS IN THIRTY MINUTES: pause, and observe that oral argument can lose a close case. AN INSIDE LOOK AT ORAL ARGUMENT We knew our case would be close. Four IN BROWN V. LEGAL FOUNDATION OF years earlier, a very similar case from Texas, Phillips v. Washington Legal WASHINGTON Foundation, 524 U.S. 156 (1998), had By David J. Burman been decided five to four against our client’s interests. And as the other side argued in every subsequent brief, ednesday, March 26. Today the U.S. Supreme Court language in the Chief Justice’s opinion decided the IOLTA case—Brown v. Legal Foundation in Phillips seemed to address some of of Washington, 123 S.Ct. 1406 (2003). Because my the issues that had not been before the W Phillips Court but that were critical to mind won’t focus on all the other things I should be working on, I our case. I try to avoid counting noses might as well get going on the article that I promised Duncan Manville while writing a brief and preparing for about preparing for and presenting the oral argument in Brown. argument, but we knew we had to mount Besides, now that we’ve won, no one can say that my argument arguments powerful enough to pull either cost us the case. . . . Justice O’Connor or Justice Kennedy away from the direction of the opinion My firm, Perkins Coie, represented the a few summary victories. But arguing is that they had joined in Phillips. Legal Foundation of Washington in different. It was a great experience, in Brown. The Foundation administers the which I benefited from the hard and We started on our brief as soon as the funds obtained through Washington’s talented work of many people—including Supreme Court granted certiorari. We interest on lawyers’ trust accounts the client, my firm, co-counsel’s firm, the had briefed the issues pretty thoroughly (IOLTA) program, under which certain Washington State Office of the Attorney in the District Court and the Ninth Circuit client funds held in trust by attorneys General, and counsel for various amici. and even a bit in the cert. opposition, and and limited practice officers must be It was humbling to receive the assistance I had argued the case three times already placed in NOW accounts bearing of such great lawyers as Carter Phillips, (including the en banc hearing in the interest that is used for charitable Walter Dellinger, Marnie Hart, Bob Long, Ninth Circuit). Still, we thought we purposes. A similar program is in place Alan Morrison, John Pickering, Steve should start basically from scratch. The in every state and the District of Rummage, Paul Smith, and Seth Waxman. three main authors from Perkins Coie Columbia. The plaintiffs in Brown We might not have done everything right (myself, Nick Gellert, and Katie challenged Washington’s IOLTA in preparing for oral argument, but it was O’Sullivan) went to work on outlining program as violative of the U.S. not from lack of trying or lack of support. and then drafting overlapping sections of Constitution—most significantly the the brief. We also benefited substantially Fifth Amendment’s Just Compensation Of course, the most important thing we from background research by summer Clause. In Washington Legal did was write an excellent brief, which associates at Perkins Coie and interested Foundation v. Legal Foundation of we had to trust would overcome any lawyers outside our firm. Washington, 271 F.3d 835 (2001) (en deficiencies in my performance and banc), the Ninth Circuit Court of Appeals answer all the questions that the Justices In my view, the Supreme Court cares upheld the program’s constitutionality. might not have time to ask or might think very little about court of appeals of after oral argument. Indeed, my precedents; it is more interested in one The oral argument in Brown was my experience while clerking, confirmed by of its own decisions, even if musty or first U.S. Supreme Court argument. almost all of the Supreme Court tangential, than a lower court decision Over the years, I have helped a handful practitioners with whom we consulted, is that is on all fours. So we compiled a of excellent lawyers prepare for oral that oral argument seldom wins a case stack of all Supreme Court takings cases. argument in the Supreme Court, and I that is in trouble after the Justices review (There are a lot more than you would have been fortunate to have written the briefs. But then my unfailingly guess!) I then spent a week away from many petitions and briefs and even had supportive colleagues would look at me, the office reading them all, searching for

11 FEDERAL BAR ASSOCIATION NEWS ideas and good quotes, tracking the Law Center’s Supreme Court Institute. argument. While most knowledgeable positions of our key Justices, and outlining The Institute administers the Moot Court observers consider it a mistake to divide what I thought would be our primary Program as a free public service and petitioners’ argument time, there is less arguments. By the week before oral teaching aid. About forty to fifty percent concern about doing so on the argument, all the annotated cases had of all cases heard by the Supreme Court respondents’ side. It’s also tough to been organized into notebooks. each year are mooted at the Institute whine about having a former acting before a panel of “Justices” that includes Solicitor General bat clean up for your The Court sees more and more amicus law faculty and experienced Supreme team. In the end, I took fifteen minutes briefs, and they cite to them in their Court advocates. Moots are provided of argument time, and Walter took the opinions with increasing frequency. at no charge to the first party to contact last fifteen minutes. Whether or not that makes amici the Institute after the oral argument date necessary, we were blessed to have is announced. Except under limited One preparation technique that was very strong, committed, and well-represented circumstances, the Institute only moots helpful was to keep a record of every amici supporting our position. To one side of a case. question asked at the meeting with the minimize the number of amicus briefs Solicitor General’s Office and at each containing substantively overlapping Once we had Georgetown nailed down of the three formal moot courts. arguments, we encouraged organizations for Thursday, December 5, we scheduled Together with the questions that had to join in combined briefs where possible. two other formal moots—an early one been posed during the oral argument in While we could not write any portions in our moot courtroom in Seattle on Phillips and the Ninth Circuit en banc of the briefs, we tried to make sure that November 21 and another one in hearing in our case, we felt we had heard our amici were coordinating among Washington D.C., on Tuesday, and considered most of the tough themselves in the briefs’ preparation. December 3, in the moot courtroom of questions that could have been asked. I co-counsel Carter Phillips of Sidley had promised the client that I would We also knew that it would be important Austin Brown & Wood. We also prepare more intensively than anyone to have the United States on our side scheduled a number of informal moot else would. Much of my time from the (which they had been in Phillips), or at courts at Perkins Coie. It was very moment we received the other side’s least to keep them from supporting the helpful to me to have had so many moots, reply brief was spent preparing for oral other side (with which the current with enough time in between them to argument, and almost every waking hour administration is generally aligned). We mull over and thoroughly research the after Thanksgiving was spent in had what amounted to a moot court with hard questions. I also spent a day before preparation. We debated and re-debated two lawyers from the Office of the the first moot in D.C. visiting the what argument to lead with, what key Solicitor General and another dozen Supreme Court and working on oral points had to be made, and how best to lawyers from interested federal argument ideas with Carter Phillips and answer the difficult questions. departments and agencies. The U.S. his colleagues. appeared to be on the fence until the very I had the luxury of receiving free advice last minute, and then decided to stay out. Before the moot courts, however, we had from the best Supreme Court advocates But the other amici were spectacular. to decide how many people should argue. around. They did not always agree, but Their briefs were first-rate, and they Had the U.S. filed an amicus brief on here are some of the things that I found were much more able than we were to our side, we would have wanted the most valuable: address what Justice O’Connor has Solicitor General’s Office to take ten called “the impact of legal rules on human minutes of argument time, virtually • The Justices average fifty questions lives.” The importance of what legal precluding any further division. Because in thirty minutes. They have no services lawyers do every day made the U.S. elected not to file an amicus time for fancy rhetoric or for winning critical, and explaining that brief, the respondents had the full 30 pedantic reading from a script and importance made winning possible. minutes. By that time the Washington will cut you off as soon as they see Attorney General’s Office, representing you heading in either direction. The As soon as we heard the date for oral eight Justices of the Washington experts told me to pick the single argument—Monday, December 9—we Supreme Court, had retained Walter most important point that I wanted reserved a spot in the Moot Court Dellinger of O’Melveny & Myers, and to make, reduce it to its essence, Program of the Georgetown University wanted a distinct brief and role at oral make it bulletproof, and get it out in

12 SUMMER 2003

the first thirty seconds. (They were want to slow down the questions my politics." He has always had a firm absolutely right. After the first few from a hostile Justice, stay focused belief in the equitable administration of seconds of argument, I had no time on the Justice who asked the last, justice, and in the necessity of to look down at my carefully hopefully softball, question. Eye professionalism among all officers of the constructed materials.) contact is not your friend. (This court: sounds good but I could not make it • When you are arguing second, the work. My head swiveled back and I think being a trial lawyer is about Court might give you a bit of extra forth wildly as Justices interrupted as difficult a job as you can have: time if you announce that you are my answers to ask more high stress, tremendous workload. addressing a question posed by a questions.) Although conflict is inevitable, the Justice to the other counsel (never administration of justice is in some “my opponent”). • Make sure all your answers are as sense a team sport. Your role as a compact as possible. Do not stake judge is sort of the captain and the • If you know that he is against you, out any more ground than you need. coach of the team. The players, do not engage with Justice Scalia. Overstatement will only invite even though they are adversaries, You are not as smart as he is, and dissection. are officers of the court, and have he does not care what your a higher calling than their own self- answers are, especially if they are • Do not let your nervousness show. interest or that of their client. good. He is making his points and The Justices are only a few feet Together they have an obligation to trying to show your weaknesses, from the podium and cannot miss follow the rules, deal with each and you do not want to use up your signs of fear. Be as familiar and other in a civil and professional time sparring with him. (I tried to comfortable as possible with the manner, and then process justice in follow this advice. Boy, did I try. courtroom. an efficient, expedient way. So I But Justice Scalia and Justice think if, as judge, you are Kennedy, whom we had hoped to As I learned today, our position survived sympathetic and empathetic to the convince, were relentless.) my oral argument. In a five-to-four role of lawyers, you're probably opinion authored by Justice Stevens, the going to accomplish more, with their • But do not ignore Justice Scalia in Supreme Court affirmed the Ninth help. a way that alienates his polite Circuit, holding that Washington’s IOLTA colleagues like Justice O’Connor. program does not violate the Fifth Judge Leighton's new position, he says, Amendment’s Just Compensation is "a wonderful job." "It's an opportunity • Do not try to refer to the Justices Clause. Justice O’Connor joined in the to serve the community, and to make by name. It will only be noticed if majority opinion. I made one obvious important decisions in an environment you get them wrong. (I think I mistake during oral argument, but Justice where you've got time to reflect and referred only to Justice O’Connor Ginsburg bailed me out. Otherwise the contemplate. You've got interaction with by name, and then only by starting argument is just a blur in my mind. I outstanding lawyers, and you're working off my argument by referring back sure would love to do it again. in an environment that is populated with to a question that she had asked of great people, and in a facility that has a the other lawyer.) majesty to it. That is inspiring. What's not to like?" • Stop the moment your time is up; Judge Leighton Continued from Page 5 do not even finish your sentence There is nothing not to like about Judge unless the Chief Justice says to do his chambers a few weeks ago with some Leighton's appointment to the U.S. so. (Chief Justice Rehnquist was questions relating to this article, Judge District Court for the Western District recovering from surgery and was Leighton also occasionally (and quite of Washington. Judge Leighton's wealth not on the bench for my argument; casually) answers his own phone during of experience, his legal skills, and his Justice Stevens was comparatively the day. outstanding personal qualities should generous with time.) serve him well during what will In terms of core values, Judge Leighton undoubtedly be a long and successful • Scanning the audience might be is a Republican whose "passion has career on the federal bench. good advocacy normally, but if you always been for my profession, not for

13 FEDERAL BAR ASSOCIATION NEWS

Macs, Linux-based computers, and a have used WebPacer or a commercial Electronic Filing few others. When a document has been vendor to keep an eye on cases in the Continued from Page 6 converted to .pdf from a word- past; that is no longer necessary. The anytime. All you need is a PC with an processing format, the resulting .pdf file notification feature not only alerts CM/ internet connection and you can file from is text-searchable. Although paper ECF users to the filing of documents, but your office, home, or even an out-of- documents filed with the Court are also comes with "one free look." With town deposition. Filings are accepted 7 scanned into .pdf format, that process CM/ECF, cases of interest can be added days a week, 24 hours a day, giving simply involves taking a "picture" of the to or deleted from a user account at any registered users of the CM/ECF system page, and thus the document is not text- time. What a bargain! much greater flexibility than they searchable. previously enjoyed. There are many more reasons to file your Which takes us to reason number documents electronically with the court With increased on-line access to five. . . . than can be outlined in this article. To documents comes another feature of hear more about CM/ECF, come to any CM/ECF. . . . ABILITY TO MONITOR OTHER of the seminars scheduled at the CASES OF INTEREST courthouses in Seattle or Tacoma, or ABILITY TO SEARCH DOCUMENTS Registered users of CM/ECF can keep request a speaker from the Court for a Another reason why you should register an eye on other cases in which they may meeting at your firm. You may contact for CM/ECF is the ease of searching be interested. Such cases of interest are Shirley Lindberg, Project Manager for documents. The CM/ECF system designated in the user's CM/ECF CM/ECF, in the Seattle Clerk's Office requires that litigants upload documents account. Every time a document or order at 206-553-4170, or visit the court's in .pdf (portable document format). This is filed in any case designated in the website at www.wawd.uscourts.gov for format allows the document to be read account, the CM/ECF user receives an more information on electronic filing at by a wide variety of computers-PCs, e-mail notification of the filing. You may the U.S. District Court.

MARK YOUR CALENDAR NOW! FEDERAL PRACTICE CLE ANNUAL RECEPTION AND DINNER Sponsored by The Federal Bar Association of the Western District of Washington WEDNESDAY – DECEMBER 10, 2003 The Fairmont Olympic Hotel, 411 University St., Seattle

CLE PROGRAM: 1:00 p.m. to 5:00 p.m. ELECTRONIC CASE FILING: Have you been served? ELECTRONIC DISCOVERY: Do you know the right questions? Do you have the right answers? INNOCENCE, GUILT, AND EVIDENCE: A Panel Discussion on the Innocence Project featuring: BARRY C. SCHECK Practical and informative panel discussions featuring attorneys and Judges of the Western District $125 per person ($100 public interest/government counsel) 4.0 CLE credits expected. For information contact: Leslie Gesterling – 206-625-1801; [email protected] FOLLOWING THE CLE PROGRAM THE FEDERAL BAR ASSOCIATION WILL HOST ITS ANNUAL HOLIDAY RECEPTION AND DINNER The Fairmont Olympic Hotel, 411 University St., Seattle Reception 5:30 p.m.; Dinner 7:00 p.m. $75 per person.

Guest Speaker: THE HONORABLE MARIA CANTWELL, U.S. Senator

14 SUMMER 2003

The Federal Bar Association of the Western District of Washington

Reply to: Federal Bar Association of the Kevin D. Swan, President Western District of Washington Todd D. True, Vice-President P.O. Box 21006 Steve Y. Koh, Treasurer Seattle, Washington 98111-3006 Beth Andrus, Secretary Telephone: (206) 624-9777 James A. Smith, Jr., Past President Website: www.fba-wdwash.org 2003 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 2003 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): ! Criminal Law Chairs: Dan Dubitzky (206-467-6709) ! Admiralty Linda Severin (206-464-3939) Chair: James R. Woeppel (206-624-2650) ! Ethics and Practice ! Alternative Dispute Resolution Chairs: William J. Bender (206-623-6501) Chair: Spencer Hall (206-292-5900) Allison S. Wallin ! Appellate Practice ! Federal Appointments Chairs: Sheryl Gordon McCloud (205-224-8777) Chair: John Cougalton (206-623-8300) Michael B. King (206-223-7046) ! Intellectual Property Chair: Warren J. Rheaume (206-447-0900) ! Bankruptcy Chairs: Flint W. Murfitt (206-706-5599) ! Local Rules J. Todd Tracy (206-447-7000) Chair: Stuart Dunwoody (206-628-7649) ! Membership ! Bar Association Liaison Chair: Corrie Yackulic (206-622-8000) Chair: James Kirkham (Kirk) Johns (206-624-6885) ! Nominations ! Continuing Legal Education Chair: Brian Kipnis (206-553-7970) Chairs: Andrew H. Salter (206-622-8484) Lori Feldman (206-839-0730) ! Pro Bono Chairs: Valerie Hughes (206-583-8840) ! Court Services Liaison ! Website/Communications Chair: Lish Whitson (206-695-4380) Chairs: Allison S. Wallin Duncan Manville (206-624-3600)

Important Note: Under the Association’s bylaws, membership is open to everyone who is: (a) licensed to practice law by the Supreme Court of Washington 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. 15 FEDERAL BAR ASSOCIATION NEWS

FEDERAL BAR ASSOCIATION of the Western District of Washington OFFICERS President Kevin D. Swan (206) 623-7580 Vice President Todd D. True (206) 343-7340 Treasurer Federal Bar Association of the Western District of Washington PRSRT STD Steve Y. Koh (206) 583-8888 U.S. POSTAGE Secretary P.O. Box 21006 Seattle, Washington 98111-3006 PAID Beth Andrus (206) 623-6501 SEATTLE, WA Immediate Past-President PERMIT NO. 3466 James A. Smith, Jr. (206) 292-1770 TRUSTEES J. Richard Creatura Dan Dubitzky Karen F. Jones Allen R. Bentley Paula Tuckfield Olson COMMITTEE CHAIRS Admiralty James R. Woeppel ADR Committee Spencer Hall Appellate Practice Sheryl Gordon McCloud Michael B. King Bankruptcy Flint W. Murfitt J. Todd Tracy Bar Association Liason James Kirkham (Kirk) Johns Continuing Legal Education Andrew H. Salter Lori Feldman Court Services Liaison Lish Whitson Criminal Law Dan Dubitzky Linda Severin Ethics and Practice William J. Bender Allison S. Wallin Federal Appointments John Cougalton Intellectual Property Warren J. Rheaume Local Rules Stuart Dunwoody Membership Lorrie Yackulic Nominations Brian Kipuis Pro Bono Panel Valerie Hughes Website/Communications Allison S. Wallin Duncan Manville