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ISSAQUAH LAW GROUP

Issaquah Law Group: Experienced Counsel; Client Focus

PHILOSOPHY: Formed in 2014, Issaquah Law Group is a law firm with one focus: providing businesses and insurers with high quality legal representation with the responsiveness of a smaller firm. ILG was founded on the principle that strong client relationships are the key to successful legal representation and strong relationships are built upon clear and consistent communication. 

LITIGATION: We work closely with our clients to fully and accurately understand their goals, work collaboratively to formulate specific legal strategies, and execute the agreed plan of action utilizing methods most likely to result in the efficient and effective resolution of the matter. ILG attorneys have a broad base of litigation experience to draw on in all Federal and State courts from on-the-ground investigations to Supreme Court appeals in the areas of personal injury and wrongful death, product liability, commercial general liability, labor & employment, construction litigation, and catastrophic losses due to fire and explosion.

BUSINESS LAW: Rarely is the path from point A to point B a straight line, so our role in a business law practice is to find alternatives, devise workable strategies, and keep your business ideas, goals and objectives moving toward realization. ILG’s business attorneys help clients achieve their goals with respect to business formation, intellectual property, labor and employment, CAN-SPAM, copyright and trademark

COMMUNITY: In addition, the Lawyers at Issaquah Law Group remain active in the legal and civic community. A core commitment of our Issaquah Attorneys is community service. Our attorneys' civic involvement includes the King County Civil Rights Commission; the City of Issaquah Planning Policy Commission; the Northwest Screenwriters Guild, service as a pro tem judge. We live and work in the Pacific Northwest, and we aim to make it a better place.

In addition, through The Amateur Law Professor Blog and LinkedIn postings, we share pertinent opinions and decisions of the Washington State Supreme Court, as well as the pertinent opinions and decisions of the Washington State Courts of Appeal so that our clients can be as update to date on cutting legal issues as we are.

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Why you should comment on the FCC's proposed Net Neutrality rules.

I receive more calls to action than the typical American. As an attorney, I'm called to look over rule changes both locally and statewide. I'm often called to help out friends politically. I serve on Commissions where I routinely review mounds of paperwork and attempt to act in an organization’s best interests. Some of these calls, I answer. Many, I ignore.I urge each and every one of you not to do this with the FCC’s proposed changes to its “Net Neutrality” rules.

The FCC is at a crossroads. The current iteration of its net neutrality rules were rejected by the Supreme Court. The fix for this is easy, a reclassification of ISPs to conform to the neutrality rules currently governing other telecommunications. This would actually create a little less confusion in the industry, as those of us who have navigated the current rules, regulations, and statutes know it is a myriad of square pegs shoved into round holes – concepts designed before the internet applied to the internet.

Currently, the FCC wants to create a fast lane for providers of certain services. Now, if you’re like me, you’re blink and think: “Don’t they already do that?” Yes. Yes they do. For XFinity, Centurylink, and other providers typically charge the end user for various download and upload speeds. The change the FCC is making is not on the end user, but to other service providers, such as Netflix or DropBox.

While this may not seem like something to which an attorney should be worried about, many of us use cloud-based data storage. Many of us also use remote computing software such as LogMeIn or virtual private networking (VPN). Under the new rules, an internet service provider could charge a computing service provider such as Netflix, Amazon, DropBox, LogMeIn, or even packet data routed using certain VPN protocols a fee for “fast lane access.” However, what this really translates to is a likely stalling of current speeds or even a decrease of speeds unless the added fee is paid.

I’ve paid for my internet traffic to reach me. Netflix has paid for internet access for its data to reach me. I should not have to pay an additional fee passed on by Netflix or another computing service provider for certain traffic to reach me. This will stifle innovation in application services going into the future. Television personality John Oliver has explained the new regulations, and the impetus behind them on his show. He details the current shaping of the FCC to favor internet service providers like Comcast, by the current chair – a former lobbyist for ISPs. If you watch or read one thing on this issue, make it this:

http://www.youtube.com/watch?v=fpbOEoRrHyU

There are several other resources you can use to educate yourself on the issues:

Wikipedia

The Nation

Slate.com

So what do you do? I’ve attached a comment that I have written and submitted to the FCC. While John Oliver so eloquently called on the Internet Trolls to step up and treat the proposed rule changes with as much vitriol as they usually reserve for cat videos (about the same vitriol that Skeletor reserved for He-Man), I believe the attorneys can use their superpower – the written word. If you oppose the new rules, as written, draft a comment. The comment period is open until September 10th. To comment, click the link below and upload your own letter on the topic.

Comment to the FCC

You can read my comment after the jump. Feel free to use it as an example. Feel free to make it your own. Feel free to disregard it entirely. But please comment.

FCC 060314 re Net Neutrality and Fast Lane Opposition

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Consumer Confusion Over Three Beers Sold?

So I pull up my morning Facebook feed, and I stumble across an NPR story regarding a small pub's response to Starbucks over the use of the word Frappicino (as compared to Frappucino). The response is great, and is actually a highly nuanced analysis of Trademark law done by a lay person without any experience in the subject. 

Under the law, simply using a similar mark isn't enough. There has to be the possibility of consumer confusion. Here, we're dealing with a pub that has one beer that represented a total profit of three dollars versus, inside of a pub that obviously has no affiliation with the coffee giant. On the other side we have the delicious and fatty iced beverage sold worldwide. Now, that said, Starbucks is branching out into the world of spirits, and it is conceivable they would have a Frappucino beer at some point. But the letter by the owner is great:

"We never thought that our beer drinking customers would have thought that the alcoholic beverage coming out of the tap would have actually been coffee from one of the many, many, many stores located a few blocks away. I guess that with there being a Starbucks on every corner of every block in every city that some people may think they could get a Starbucks at a local bar. So that was our mistake."

 

The owner continues to note they will discontinue production of their McDonald's-Coca Cola-Marlboro Honey Lager. They enclosed a check for $6.00 (the profits from the beer), and end it on a high(ly sarcastic) note:

"Furthermore, in an effort to remain in good standing with Starbucks and Mr Bucks in general, please find enclosed a check for the full amount of profit gained from the sale of those 3 beers. Please apply the enclosed $6.00 towards the legal fees Ms. Owen Kramer received for her efforts in nabbing Exit 6 in our dastardly F Word naming practices. We realize Mr Bucks probably paid her more than Exit 6 made last year. We just want to help a business like Starbucks. Us small business owners need to stick together.

A link to the full NPR story is here.

Sometimes the law does hit on sense so common a lay person can come to it of his own accord. Great response, Exit 6, and I look forward to not trying the McDonald's-Coca Cola-Marlboro Honey Lager. However, I will try a bit of that Imperial Pumpkin Porter.

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WA Supreme Court strikes down supermajority for tax increases, leaves referendum in place

In an opinion including gobsmacking on all sides with debates on justiciability and the history and purpose of the Constitution, the Washington Supreme Court struck down the controversial 2/3 supermajority requirement for tax increases (and tax loophole closures). Rather than recreate my analysis, I've decided to just repose my tweets, which do a good job of walking you through the document.

Image

Link to the opinion below.

League of Education Voters v. State

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Comedic Tidbit - Judge Finds Contempt for Xanax-Popping Tart (Pro-Tips for Pro Se Litigants)

This is actually quite hilarious. Judge Rodriguez-Chomat is dealing with a low-level offender, who is acting like Lindsey Lohan during her bail hearing/arraignment. The judge, of Hispanic descent, calls her back when she laughs, blows him off, and says "Adios". He bumps her bail. She then flips him off and tells him "Fuck you", to which she gets a 30 day sentence.

http://www.dailymail.co.uk/news/article-2273778/Penelope-Soto-arrested-possession-Xanax-Moment-Miami-teen-thief-flips-judge.html?ICO=most_read_module#axzz2K8GD0wdH

Now, what did we learn from this? ALWAYS, and I mean ALWAYS, be respectful to the Court. Too often I see both attorneys and lay people who do not treat the Court like a solemn institution. It kills me. If you are in court for a proceeding, dress your best, and dress conservatively. If all you own is a pair of khakis, wear them. If you don't have a white shirt and tie, find one. If you are female, wear a conservative skirt and blouse. Always address the court respectfully as "Your honor". Say "good morning" or "good afternoon". Explain to the court why you are there. NEVER interrupt the judge. 

These are just a few things that help the Court take you seriously. And yes, this goes for attorneys too, who I have seen violate this wayyyyyy too often. 

I know, I know, I said I'd be posting something substantive. This may be as close as we get :)

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If You're Not Tired, You're Doing It Wrong

So I posted a few weeks back about work life balance. But there's another side to that same coin. I don't mean to say that attorneys should be lazy. Quite the opposite. I think you should suck every bit of marrow out of life and use your abilities for the betterment of society. I think you should grab every fun opportunity and experience life to its fullest. The problem with that, it leaves you tired.

Par example (that means 'for example'), today was one of those whirlwind days that is not nearly over. Wake up at 5:30 and go let the dogs out. Check on the chicken that has been sick and is sleeping inside: specifically, check the poop situation. Wake up the girlfriend and report on the situation. Help out my cousin via a facebook post regarding a legal matter. Load up the chicken into my car, and away we go.

Commute the 30 minutes to work and work for a half hour on a letter going out to one of my expert witnesses. Drive the chicken to the vet, spend a half hour explaining the symptoms, shelter, food, and chicken roommates. Back to the office. Work on a few more letters, make a few calls, and out the door again. On the way to the MLK county celebration, make a couple calls to girlfriend regarding the chicken and Nate Roberts regarding a case (figured I'd give him a shout out in case he reads this). Arrive at county celebration 15 minutes early, wolf down sandwich. Pictures with Dow Constantine, Larry Gossett, the other King County Civil Rights Commissioners, and our MLK Essay Contest winners -- then into the hall. Hour long event and then to my car, stopping on the way back to scout The Rack for new shoes, as my trust black Mezlans that have already been resoled once are now decrepit and nasty on the inside. Back to my car with no luck and back to the office.

Read a response brief, draft a reply brief, decide on an arbitrator, send a few emails. Oh crap! Chicken!

Drive to vet to pick up chicken. Drive to grange to pick up new feed recommended by vet. Update girlfriend on status of said chicken during the drive home.

Stop at store, home, cook sirloin burgers. Make a wasabi aoili for said burgers. Pick up the kitchen and start the dishwasher. This post.

Next: restring guitar for friends band to use tomorrow, as they're coming down and playing The Comet (Sex with Strangers, you should check them out). Clear off double keyboard stand, load up both into the car. Write a motion. Bed.

Tomorrow? Finalize motion, draft a few letters, KCBA MLK Luncheon, more letters and a motion, work until the show starts at 9. Then watch some great music.

Will I be exhausted? You bet. Would I have it any other way? Heck no!

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The Transition: Moving from Plaintiff to Defense

One of the things I often get asked is why I made the transition from Plaintiff's work to Defense work. 

This usually results in me screaming "You're not the boss of me!," slapping the person with a white glove, and running to hide behind a chair. I have issues.

But seriously, the answer is really complex, personal, and not a story I am likely to tell unless I know you fairly well in person.

The next question, however, is one I have no problem talking about. "What is it like working on the dark side?"

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(Like that, except with Windows)

In law school, they always pose the ethical question about defending someone you know committed murder. My response was always the same, I may not like it, but every person is entitled to a defense under the constitution. Its the only way to keep a check on the police powers of the state. Insert random generic sounding 1L answer.

That argument doesn't hold up as well when you're talking the civil side of things. So, here's the short answer, I really like what I'm doing.

People I am co-counsel with, and plaintiff's counsel who didn't know me prior to the transition, are often surprised to learn that I was Plaintiff's counsel before this. 

There were a lot of things I liked about working on the Plaintiff's side. I learned people's stories. I was able to hold people accountable for negligence. I sometimes was able to try interesting theories. I learned a lot about a lot of different things. I loved getting in knock down drag outs over discovery. I loved drafting responses to summary judgments (and the odd Plaintiff's motion for summary judgment). I loved taking depositions. 

Some of the things I didn't like? The sometimes overwhelmed feeling. The marketing yourself for cases/clients. The having to bone up on a complex area in a short amount of time. 

So how is that different in the transition to defense work? Well, its really not. The stories I tell are from a different perspective. The work is largely the same. I tend to have the same work load, which sometimes feels like its hard to get out from under, but is very rewarding. 

Really, litigation is litigation is litigation.

One thing I have noticed in the transition is, as a Plaintiff's attorney, I saw all my cases as having merit. I tended to see the value as higher than the defense attorney, but I always strove to put the best case forward, being open and honest about the warts on my case, but moving to exclude things that were irrelevant. I thought I did a good job of screening my cases to be sure I was taking something meritorious. If I did not believe my client, I was not the attorney for them. I had to let more than one client go for unrealistic expectations.

On the defense side, not all cases are created equal. I thoroughly enjoy going up against attorneys that are well-prepared, have screened their cases, are responsive, and generally behave as I had - tough but fair. However, I see some Plaintiff attorneys who are absolutely blind to blatant faking, attorneys forging or altering evidence, and everything in between (not all the time, thank goodness, or I would go insane). Those cases make me work hard to get to the truth, which generally lies somewhere in between where Plaintiff and Defense have staked their ground.

There are some things to get used to. Reporting being the largest. My clients now want far more information than my Plaintiff clients required or wanted. But that leaves me the ability to give them an honest evaluation of when I think the cases are good, when I think they're bad, and why. 

So take that for what its worth. From what I've heard, I am a bit of an outlier. Many people move from Defense work to Plaintiff's work. Not so much the other way around. 

So what do I feel each side has the ability to offer the other? From the Plaintiff's side, you gain an ability to actually see the effects of the injury on the person. This is something often left out or underdeveloped in defense depositions. The importance of knowing the stories that will be told by the lay witnesses cannot be understated, as you will have the same ability to pick those stories apart if they do not match the facts. Too often a defense attorney will just ignore the lay witnesses, offering "no questions" at trial.

From the Defense side, learn how to prepare and manage your case load. It is too easy on the Plaintiff side to get mired down in the day to day of your work, and lose picture of the case's overall goals, or tasks that need to be accomplished. One of the large aims of reporting is to ensure all those tasks get accomplished well before trial. Now, I'm not saying you need to draft a full report on each of your cases, but you should definitely have a to do list on each case, and prioritize and revise that list often (the best Plaintiff's attorneys I know have meetings on all the cases often enough that they always have a bead on what the next step is). 

The sooner we all realize our jobs are essentially the same, getting to that middle truth, the sooner we eliminate the consternation and conflagrations that often permeate our cases.

 

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2013: The Year of Updating a Bit More

So one of my resolutions is to make a concerted effort to blog a little more. For those of you that don't know, your Dean has gone through a through life changes. Don't worry, I'm not going through the big life change:

Image(Went through "the change" before it was cool)

Sooooo, things that happened in 2013:

  1. Changed Jobs - Moved from a Plaintiff's personal injury practice to a defense personal injury practice. Pros: steady paycheck, great work environment, espresso. Cons: No longer get a great view of the shore.
  2. Bought a house/moved to the burbs: These two kind of go hand in hand. The house that I bought was about the only one that could have gotten me out of the parts of Seattle I really enjoyed. The part of the burbs I moved to is, again, pretty much the only part I would have considered, with close walking to everything nice, including great food and drink.
  3. Raised chicken: Well, this one my girlfriend gets most of the credit for. I simply purchased two of them, she purchased three off of the internet. One of them didn't make it (R.I.P. M.C. Hammer's Career, we hardly knew you). Two of the chickens started laying eggs at the end of the year. The other two are still like that uncle who always hits your dad up for money.
  4. Got a new tattoo, courtesy of Danny Kalan, one of the most talented young tattoo artists I know.
  5. Appointed to the King County Civil Rights Commission, and later appointed Vice-Chair of the same.

So what is missing off of that list? Oh...writing here. Guess what one of my resolutions is for 2013?

So here's to a future of hopefully more blog posts, witty legal news, and the occasional court case that strikes my fancy.

 

 

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Chainsaw Self Defense?

So a post just came down on the Seattle Times' website laying out the chainsaw murderer's explanation for why he went all chainsaw murdery: self defense.

No, really, it was for my own protection!

Anyhow, the "victim" claims his landlord came at him with a roofing stake. Lest you think its something innocuous, please be aware that its really something the reaper would carry on his days off:

(Reaper Roofer Tools)

So what do you do when someone attacks you with one of those things? Hit him with a baseball bat.

That actually sounds kind of reasonable. However, it was the chopping off the guys head with a chainsaw after he hit him with a baseball bat that may have been a little over the top. You have to put down the bat, go find the chainsaw, start it up, chop through the head. There's a few too many steps in there to claim it was a reasonable reaction to the initial attack.

Well played though, gutsy self defense move!

 

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Seattle University School of Law's Social Justice Mission at Odds with Catholic Church

I know there are a few of you looking at the time this was posted and thinking: doesn't The Prof have a job? Doesn't it involve billable hours? Why is he posting this now instead of an unreasonable hour. Two reasons: I love sleep and this requires fairly immediate attention. This post is specifically addressed to graduates of Seattle University School of Law. In looking through my Facebook feeds last night, I came across an interesting post from a current law student at SU, which was reposting a letter sent to the Public Interest Law Foundation. I will preface this by saying I was never active in PILF during law school, but appreciated its subsidization of public interest law internships, and was very active in Seattle Journal for Social Justice, which embraced the same lofty goals, albeit from the ivory tower that is a law school publication. Anyhow, the letter follows the break:

‎-ANNOUNCEMENT-

Dear Fellow Students,

The Public Interest Law Foundation (PILF) would like to inform the student body about a concerning new trend at Seattle University that affects all students and the law school's commitment to social justice. Over the last year, and since the appointment of the new Archbishop of Seattle, there have been numerous examples of the Catholic Church (via the administration of the University) stifling the social justice activities of student organizations. The church has decided that certain "issues" are not to be promoted or advocated for on campus. Important social justice issues like gay marriage, pro-choice advocacy, end of life care, and others are being slowly removed from the school's definition of "social justice".

PILF was made aware of the problem when a public interest summer grant recipient was denied a grant because of choosing to work at Planned Parenthood. Sadly, this is only one example of the school's refusal to support real social justice issues. We were subsequently made aware that there was at least one instance in which the school pulled an invitation to speak from a person who had worked on one of the social justice issues noted above.

One of the major problems with this new "policy" of denying certain individuals, organizations, and issues representation on campus is that it is not written down anywhere. We, as students, are not given notice of these new rules that apparently bind our activities at our school. The response from the administration has been reactionary instead of proactive. Student organizations have been told they cannot do something only after events have already been planned and speakers invited. How can we, as students, plan meaningful events on campus that promote the school's social justice commitment if we don't know what we are REALLY allowed to do?

Because the new policy is not explicitly posted anywhere, PILF decided to reach out to all students to inform them of the issue. As the school continues to stifle these issues on campus, we students should think about how we can confront the issue head-on to make sure OUR definition of social justice is continually represented at OUR school. Please feel free to email us with any ideas or feedback about this problem.

Thank you,

Samuel Leonard &

Chanele Brothers

PILF Presidents

Now, if you're anything like me, you have a real hard time with a Jesuit institution that takes such a stand against gay rights or equal rights to all. I'm not even Catholic, but this doesn't pass the smell test. What has happened as of late is Seattle's Archbishop, Peter Sartain, asked priests to help collect signatures for No on R74, the bill that would repeal gay marriage as put into law by the governor. Okay, repeal is a strong word considering the law is in the referendum stage, and thus wasn't enacted, but its still a stripping of what most consider a step forward in human rights (and basic dignities) in Washington.

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(Governor signs gay marriage into law.)

Some of the Brethren have spoken out on the issue, most notably Father John Whitney of St. Joseph's Parish in Seattle. You can find those stories here and here. A number of parishes downright refused to comply with the Archbishop's request.

I think its time to ask ourselves whether the law school, as an institution of higher learning, has the ability to separate itself from the formal affiliation with Seattle University and its Jesuit tradition. This would avoid the conflict that can and does occur when an inherently religious institution is put at odds with its inherently logic-driven counterpart.

Seattle University helped the law school grow. It purchased the school from University of Puget Sound, built a wonderful building to house the school. It brought SU into the city, where it could attract not only bright students, but also focus its resources into helping the community around it.

While it is true there are not a whole lot of independent institutions (17 that matter by my count), there are several that are ranked, including Brooklyn (#65) and Vermont Law School (#119, #1 in Environmental Law).

At the very least, I think its time to have a discussion with the University about where we are placing our social justice values, and why it is important to embrace justice for all, and not just justice for some. The whims of the Archdiocese will often conflict with forward progress, as churches are designed to do, and they will often conflict internally with the Jesuit tradition. When these conflicts infringe upon the Social Justice foundation upon which the law school was founded, its time to talk.

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You've Got to Have Balance

As Boston rapper Akrobatic said in the title track to his debut album: “I got mad problems with the world though, even my profession.” (If you haven’t checked out this album, you really should).Image

So what is my problem? It’s the lack of work-life balance in the profession. It seems that there are a ton of attorneys who have not figured out how to balance the needs of making partner with those of having any other identity than “attorney”. This is a sure fire way to begin to hate not only your profession, but your life as a whole.

I’m by no means saying that I’m a guru when it comes to balance. I just came off of four days straight of depositions, and took work home all last week in order to stay ahead of the game. That said, I do try generally to maintain things in my life that bring a little non-law to my world. I have a few recommendations:

Get a hobby!

Seriously! Not joking here. Mine? Cooking, raising chickens, blogging, music, gardening. Well, the gardening is not really a hobby as it is a constant struggle to fight back the evil forces of morning glory trying to strangle my roses and privet hedge. Do I have enough time to do each of these things as effectively as I’d like? Heck no! But it does keep my brain off of law and gives me something interesting to talk about at parties. While you may think the law is a fun and interesting topic, unless you’re talking with other lawyers, you’ll soon see eyes gloss over and you’ll stop getting invited to all the fun parties.

Take time for yourself!

This is another huge problem for me. Between work, hobbies, honey-do lists, and outside obligations, it seems I’m often running from the moment I get up to the time I go to bed. However, I try to make a little time each night to just do something for me. Sometimes it’s as simple as taking a nap. Other times its taking a couple hours out of my day to go get and play with the new iPhone rather than wait for the order to come in. Those little things you do for yourself have a big payoff on your sanity. I have many friends that make it their ritual to go for a run every day to clear their head. Others do yoga or a weekly happy hour with friends. The main point is to do what works for you.

Take time for others!

This may seem like a no-brainer, but make your significant other a priority in your life. Make your family a priority in life. Make giving back a priority in your life. Years ago, during law school, I went through a heart-wrenching break up. The root cause was my spending all of my time working on a journal, both editing as well as working on my own article, which I hoped to get published. This lead to fatigue, and ultimately fights. I hadn’t been taking the time to make sure I was nurturing the relationship. Like anything that doesn't get nourishment, it died. It was probably the hardest life lesson I’ve learned. When I talked with my dada about the situation, he told me “It’s just a job.” He was right. Ours may be a stressful time-suck of a profession, but at the end of the day, it’s just a means to pay the bills and help people along the way. Now, no matter how busy I get, I make the time to go to family gatherings. I take the time to go on “dates”, making sure I commit by buying the tickets well ahead of time and putting a big block on my calendar to make sure nothing gets scheduled over it. You don’t want to wake up one day and find that it’s just you, your desk, and a bluebook, everyone else having vacated your life due to lack of mutual interest. 

Vacay!

Finally, take a danged vacation. Every year I go someplace different. Last year, it was Mexico. This year, Italy. If you’re saying: “Yeah right! With what time?,” go to your calendar right now…I’ll wait. Open it up. Click to the first month where you have a week or two that isn’t yet gobbled up by depositions or trial (be sure to check either side of that block, as you really can’t have a trial the day after this block). Look good? Okay, block it off NOW. Now go purchase your tickets to [insert place with really good drinks with nice umbrella’s]. So help me, if you take your laptop with you I will hunt you down!

Your practice will survive without you (and will do a lot better in the long run).

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Structuralized Racism or High Blood Pressure

An interesting article this morning. Turns out that a widely used blood pressure medication has the unintended side affect of muting racist thoughts. From yahoo news:

"Implicit racial bias can occur even in people with a sincere belief in equality," said Sylvia Terbeck, lead author of the study, which was published in the journal Psychopharmacology. "Given the key role that such implicit attitudes appear to play in discrimination against other ethnic groups, and the widespread use of Propranolol for medical purposes, our findings are also of considerable ethical interest."

NewImage

So what does this mean? Well it definitely adds some fodder to the nature versus nurture racial debate. Capillary defects in the brain? Can't wait to see what kind of neurological and sociological studies this spawns. Given the Supreme Court's take that if you don't talk about racism, it doesn't exist, I would love for this to develop further into an argument than can be used against the colorblind individualism model.

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DUI pled to Flying While Drunk: Prosecutorial Discretion Run Amuck?

So it snowed last night. A fair amount. I think we're up to about 3 inches. The freeway won't be a problem, but the side road is iffy. Rather than risk certain death (I'm ever-phobic of driving on snowy roads…people are idiots). I decided to peruse fark.com.

That's when I came across a story that was a little disturbing. It starts out like most drunk driving stories, with a man almost putting himself in a ditch and generally driving like the opposite of Ms. Daisy. Soooo…replace Morgan Freeman with Charlie Sheen.

So he gets popped, blows double the limit, but there are inconsistencies in the blow. Best consistent reading is .13. The prosecutor sees the weakness, even though there's three sets of FSTs, all very damning. So what does he do, gives a plea to Operating an Aircraft under the Influence. This doesn't count as a driving offense, so none of the usual DUI penalties are put in place. The guy never even had a pilot's license.

Friends on both sides of the v, I'd be happy to hear your take on it. What do you think of pleading down a DUI to a non-traffic offense?

One side note, the process in Wisconsin, where this went down, will still count the Flying while Intoxicated charge on his offender score.

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SPD Must Release Names of Disciplined Officers

There was an interesting article on the Seattle Times website today regarding the Superior Court reversing an arbitrator decision regarding releasing the names of officers disciplined for misconduct. Essentially, the names of disciplined officers were requested under the public records act. The City used to provide this information with the names redacted for privacy reasons (a legitimate reason, if done properly) and effective law enforcement promotion.

Well, a few years back, the Washington Supreme Court decided a very similar issue and held that the names of teachers with substantiated claims against them for inappropriate behavior was in fact a public record. I'll quote some of the opinion by Justice Fairhurst (not that I had any hand in drafting this at all…but I totes did):

Sexual abuse of children by school teachers is a terrible atrocity. Allegations of such abuse should be thoroughly investigated by school districts and, if the allegations are substantiated, the media may request records containing the identity of the perpetrating teacher. However, when such allegations are determined to be unsubstantiated, the identity of the teacher is exempt from disclosure to a public records request because such disclosure would violate the teacher's right to privacy. Thus, we hold the identities of public school teachers who are subjects of unsubstantiated[1] allegations of sexual misconduct are exempt from disclosure under Washington's public disclosure act (PDA), former chapter 42.17 RCW, amended and recodified as chapter 42.56 RCW (LAWS OF 2005, ch. 274).

Now, lets substitute police for teacher and "sexual abuse of children" with "misconduct" and see if it largely makes sense:

Misconduct by police is a terrible atrocity. Allegations of such misconduct should be thoroughly investigated by police departments and, if the allegations are substantiated, the media may request records containing the identity of the perpetrating officer. However, when such allegations are determined to be unsubstantiated, the identity of the officer is exempt from disclosure to a public records request because such disclosure would violate the officer's right to privacy. Thus, we hold the identities of police officers who are subjects of unsubstantiated allegations of misconduct are exempt from disclosure under Washington's public disclosure act (PDA), former chapter 42.17 RCW, amended and recodified as chapter 42.56 RCW (LAWS OF 2005, ch. 274).

I wonder if the Guild will appeal, or if they'll realize that given the Washington Supreme Court's current makeup, this order will likely stand and they will have paid a lot of money to their attorneys, and to the other side, for this appeal?

Interestingly, there are a lot of comments that if citizen's have nothing to hide, then they have nothing to fear from the police. Unfortunately, this is not true. The very heart of the problem is there are instances where people had nothing to hide, yet plenty to fear. I have many friends who are fine, upstanding examples of what law enforcement needs to be. Its the officers who don't live up to that standard that need to be monitored by the populous. Under the law, if the allegation is not substantiated, their identifying information should not be disclosed.

http://www.youtube.com/watch?v=On4XMG0U3xk&feature=related

In other words, the Public Records Act allows the public access to track just this sort of thing, so that the public can remain vigilante over its government. Preventing tyranny and all that.

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WA Legal Roundup - Division I: Get out the Nitroglycerine, Bankers! Condo Owners Associations' superpriority lien status is coming for you!

So, there are the occasional court opinions that I read with admiration for the subtlety of reasoning, the fine but important distinctions drawn by the court, and/or the simultaneous adherence to the concept of judicial restraint while advancing the cause of justice.  GMAC v. Summerhill Village Homeowners Ass'n is not one of those opinions.  Summerhill Village is more like a brick, thrown through a window, and smacking me upside the head. Around the watercoolers of bank lawyers' offices, the scuttlebutt about RCW 64.34.364 had been that perhaps there is an ambiguity in the state.  Certainly, the legislature could not have intended substantial (hundreds of thousands of dollars) security interests in condos could simply be wiped out at judicial foreclosure by a junior lien arising out of unpaid condominium dues (couple of thousand dollars)!  Even if it did, certainly the senior lienholder that got jumped in priority would have the right to redeem, that is, to pay off the condo association after sale went through to protect its position, right?  Well, Division 1 has spoken, loudly, and sorry senior lienholders, you are up the proverbial creek if you fail to respond to the judicial foreclosure.  The court says that the phrase "subsequent in time" means just that.  Time doesn't equal "right," even if the structure of the statute is decidedly first in time, first in right.

Here's how it works.  Bank A loans a large amount of cash to a borrower for the purpose of buying a condo.  Part of the deal with a condo is that the borrower/owner then pays dues to an association, and these dues go to maintenance of the common areas.  Well, the problem was that when borrowers/owners got into financial trouble, the first thing they stopped paying was these dues.  Sure, the association could lien their property, but so what?  The association is not going to take an owner into foreclosure when there is a giant lien ahead of it on the priority list.  The statute allows them to jump up in priority and to take the property to foreclosure.  The hope is that the senior lienholder would see the lawsuit and pay off the condo association to protect their interest.

And hey man, I get it.  Occupy the senior lienholders, those greedy banksters!  After all, if they were served with a lawsuit, and they sat on their rights, then screw 'em.  Yeah man, screw 'em.  Only, it's not that simple.   The troublesome little detail is that the associations have this sneaky way of serving MERS if it was listed as the "beneficiary" on the senior deed of trust, knowing full well that MERS wouldn't forward on the summons and complaint the the real party in interest.  So the senior is blissfully unaware, until the sheriff's sale, when its large stake in the property vanishes!  The association just bought the property for pennies on the dollar!  Only you can't buy it back because even though your rights were inferior to the association, you acquired them before the condo dues lien attached.  Yay, windfall!

Of course, this opinion isn't really concerned with any of this.  The brick through the window is meant for the legislature, so that they will fix this obvious loophole in the statute.  Right now, a mortgage banker is choking down some heart pills and calling his lobbyist...

 

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Welcome Back to Ryan Carson

A hearty welcome to former, and current, Amateur Law Professor Ryan Carson. Here's a little bit about Ryan, for those of you who don't know (from my memory):

Ryan Carson is an associate at Robinson Tait, where he specializes in mortgage and homeowners issues. In law school, Ryan was active in environmental issues, was on the Law Review of Seattle University School of Law, and performed an externship for the Honorable Tom Chambers. After law school, he clerked for a year with the Honorable Susan Owens as well. This guy knows the Washington Supreme Court corridors well!

Outside of work, Ryan, like your esteemed professor, loves to ride bikes. He also enjoys spending time with his wife and daughter.

He also enjoys the types of opinions that make me cringe and is a nerd of the highest caliber [insert Austin Powers joke here].

Welcome back, Ryan! Its great to have more than one person here again.

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WA Legal Roundup - WA Supreme Court: Dismissed convictions don't count; Post conviction DNA test goes forward due to non-admitted statement

So there's really not much going on at the Court. We have Snohomish County Pub. Transp. Benefit Area Corp. v. FirstGroup Am., Inc., which is really just about an indemnity clause (*yawn*).

We have State v. Johnson, which makes me chuckle because of the euphamism for male genitalia (my sense of humor never progressed much beyond a sixth grade level). Anyhow, that case simply stated the obvious. Chris Hansen can get people to pose as little girls, and when you try to have sex with them thinking they're little girls, you can be found guilty of a crime. Substitute a police sergeant for Chris Hansen, and substitute undercover detectives for the actors on To Catch a Predator, and you see where this is going.

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There were, however, two interesting cases, both criminal.

State v. Thompson involved post-conviction DNA testing. Under the standard, you really have to show that you stand a more probable than not chance of a different result. Here, the guy is alleged to have beat and raped a girl, and there is a statement that said he had consensual sex with her. So DNA wouldn't make a difference, right? Well, unfortunately, the prosecutor let slide the statement under a stipulation saying it would only be used if he testified. Had there been a hearing on the admissibility of the statement, could have used it in analyzing the post-conviction DNA request. So he gets his test, but my guess here is that it probably won't make a lick of difference.

In re: Personal Restraint of Carrier

This is an interesting analysis of post-conviction dismissal under the sentencing reform act. I won't bore you with the details, but if you have a 3 strikes case with a post-conviction dismissal under the SRA, you should definitely get to know this case. Maybe take it out for dinner. A couple nice glasses of wine. Definitely be sure to call this case the next day, but don't wait the full three days, you don't want to look like you're playing games.

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WA Legal Roundup - WA State Supreme Court: Cigs on Trust Land Outside Res? State Juris. to raid untaxed cigs.

State v. Comenout

Really, that's all that's to it really. Comenout was operating a smoke shop on trust land outside the res. The cigs didn't have tribal or state tax stamps. 37,000 cartons in the store. Under an agreement, smoke shops in Indian Country to be licensed by the tribe.

This case presents two primary issues. The first is: does the State of Washington have criminal jurisdiction over tribal members selling unstamped cigarettes from an unlicensed store located on trust allotment property lying outside the borders of an Indian reservation?

Now, I'm calling out the clerk here. Never present a roadmap to your decision without providing all parts of the roadmap. A better read would be as follows:

This case presents two primary issues. First, does the State of Washington have criminal jurisdiction over tribal members selling unstamped cigarettes from an unlicensed store located on trust allotment properly lying outside the borders of an Indian Reservation? Second, are the Comenouts whether the Comenouts are exempt from the state cigarette tax as "Indian retailers"? We answer the first in the affirmative, and the second in the negative.

Then move on to your breakdown of each. My legal writing nerdacity is really showing here. I wrote this without checking who wrote the majority. Justice Alexander. Don't know his clerks, and I apologize if this offends you. You can ask Laura, I'm actually a really nice guy. But she will verify, ima nerd.

Moving on to the opinion, Washington State established criminal jurisdiction of Indian Country outside of reservations. State v. Cooper, 130 Wn.2d 770, 928 P.2d 406 (1996), controls, and the facts are pretty similar. So yes, the State does have jurisdiction here.

As to the tax, the contract with their tribe supersedes the general provisions of the statute (as per another statute saying so). RCW 82.24.020(5), if you care to look. Their contract says an Indian Retailer has to be licensed by the tribe, which this one was not. Thus, you're not an Indian Retailer. 9-0, with Judge Cox sitting in Pro Tem for J. Johnson.

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WA Legal Roundup - Div. III: No Fifth Amendment Right for Corporation

Diaz v. Wash. State Migrant Council

So in this case, the Migrant Council had some board members who were suspected illegal immigrants. Not the best spot to be in when trying to secure funding. Diaz, the executive director, brought this up to the board, who promptly fired him. During the litigation over the retaliation, sought info on the immigration status of the board. He didn't seek this from the board members, but from the Migrant Council corporate entity. The Council refused to respond, citing a fifth amendment privilege against self incrimination.

Well, no such luck. While the board makes decisions, it is not the corporate entity. Corporate entities have no fifth amendment right against self-incrimination:

The Fifth Amendment is no impediment to the corporation asking a director for information needed for discovery and relying on him or her to respond. See, e.g., United States v. Solomon, 509 F.2d 863 (2d Cir. 1975) (officer and director's inculpatory statements provided in an internal investigation were not privileged under the Fifth Amendment; no state compulsion was involved); United States v. Shvarts, 90 F. Supp. 2d 219, 222 (E.D.N.Y. 2000) (questions put to defendant in carrying out a private corporation's own legitimate investigatory purposes do not activate the privilege against self-incrimination), abrogated on other grounds by United States v. Coppa, 267 F.3d 132 (2d Cir. 2001); D.L. Cromwell Invs., Inc. v. NASD Regulation, Inc., 279 F.3d 155, 162 (2d Cir.) (while internal investigation may entail exposure to criminal liability, that in itself is not enough to establish a governmental nexus implicating the Fifth Amendment), cert. denied, 537 U.S. 1028 (2002). The fact that a corporation's agent has invoked the Fifth Amendment in response to individual questioning does not excuse the corporation from its duty to respond to discovery.  See In re Folding Carton Antitrust Litig., 76 F.R.D. 417, 419-20 (N.D. Ill. 1977). Moreover, a corporation's failure to respond to discovery because its officers and directors in possession of relevant information have invoked their Fifth Amendment privilege may be considered willful and deliberate since it results from a deliberate choice on the part of the officers and/or directors. Id.; see also
Worthington Pump Corp. (U.S.A.) v. Hoffert Marine, Inc., 34 Fed. R. Serv. 2d 855, 1982 WL 308871 at *3 (D.N.J. 1982).

A director may be reluctant to provide the information to the corporation out of the same self-interest that prompts him or her to invoke the Fifth Amendment when deposed. But the Fifth Amendment protects only against state-compelled self-incrimination, it "does not protect against hard choices."  Solomon, 509 F.2d at 872.

Where an interrogatory is directed at a corporation, "the phrase 'such information as is available to the party' has been construed to mean all information available to the corporation's officers, directors, employees and attorneys."  Chapman & Cole v. Itel Container Int'l B.V., 116 F.R.D. 550, 558 (S.D. Tex. 1987); Gen. Dynamics Corp. v. Selb Mfg. Co., 481 F.2d 1204, 1210 (8th Cir. 1973), cert. denied, 414 U.S. 1162 (1974). Knowledge of officers and employees of a corporation relative to the subject matter of litigation is imputed to the corporation.  Gen. Dynamics, 481 F.2d at 1210 (citing Acme Precision Prods., Inc. v. Am. Alloys Corp., 422 F.2d 1395, 1398 (8th Cir. 1970)). A corporation's failure to obtain and provide all such information is incomplete and therefore must be treated as a failure to respond. Chapman & Cole, 116 F.R.D. at 558 (citing Dollar v. Long Mfg., N.C., Inc., 561 F.2d 613, 616 (5th Cir. 1977), cert. denied, 435 U.S. 996 (1978)).

The Migrant Council's core argument is that the trial court abused its discretion and violated the Migrant Council's due process rights "when it ordered the Council to do the impossible: to produce documents and information about the actual immigration status of its current or former volunteer Board members." Br. of Appellant at 15. The directors presumably have responsive information. But the Migrant Council inexplicably excludes its directors from "the Council" whose duty it is to respond. When asked at oral argument which human actors the Migrant Council has in mind as "the Council" that cannot respond, its lawyers identified themselves and the several corporate contacts who assisted them in drafting responses. Whether a corporation has reasonably responded to discovery is not measured solely by whether the lawyers and corporate administrators tasked with drafting responses have included all of the information they have collected. It is substantially measured by whether corporate directors, officers, employees, and other agents who possess responsive information have provided it to be included in the corporation's response.

The fact that a corporation's lawyers and their contacts have been unable to secure cooperation may be an explanation for a corporation's insufficient response, but it does not excuse it. This is so even where cooperation is lacking because corporate principals are concerned about criminal culpability. If corporate principals' refusal to cooperate out of concern for self-incrimination excused a corporation from providing relevant information in discovery, then there would be an inverse relation between corporate management's violation of law and an adverse party's ability to prove it: the more criminally culpable a corporation's management, the less its obligation to provide discovery. We may assume that in many cases where corporate principals refuse to cooperate in responding to discovery it is for substantial self-serving reasons. The fact remains that the corporation -- whose employees, officers, and directors could provide the needed information -- has not provided it.

(emphasis added).

The court goes on to talk about how the Council can't really balk about the sanction of an adverse inference, because it proposed the darned sanction as a lesser sanction in lieu of default. Further, just because you claim the Fifth (or your board has), that doesn't mean you're protected from adverse consequences in a civil proceeding.

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