Category Archives: Law Practice

MAY 1ST – THE FIRST DAY OF OUR RETIREMENT

I was sworn in as an attorney in 1959. After 55 years of representing people, and not corporations, I have retired from the practice of law. My wife Lita, who  has been my law partner as well, has retired with me. Today is the first day of our cruise-litapnlchange in our life work. We have never played golf and don’t plan to start, but we have many unfinished  and planned projects to occupy us. It’s been a great privilege representing ordinary people against corporations, insurance companies and the powerful.

When I began  as a young lawyer there were Justice and Municipal courts in addition to the Superior and Supreme Court. However, you  didn’t’ have to be a lawyer to be a judge in a justice or municipal court  and most weren’t. You tried traffic and small damage claim cases to people who had other jobs having nothing to with the law. You quickly learned to talk in plain English and make your points short as  well as understandable. I was a part time deputy prosecuting attorney when I started and prosecuted traffic cases  for the county. However, the judge was paid a percentage of any fine assessed and, as you might imagine, the conviction rate with fine was very high. That system was declared unconstitutional and a requirement that qualified lawyers only serve as  judges later adopted.

The other significant difference was that when I started there was very  little right of what is called “discovery” in any court, that is, the right to get all the facts before trial by written question or pre trial testimony by deposition. Depositions were very limited and it was common you would appear for trial without knowing  who the witnesses the other side was calling or what they planned to say. You learned to listen very carefully to testimony and be quick on your feet to know how to handle it.

This was pre television domination and people came to watch trials for entertainment. Everyone was far more willing than today to take time with the trial proceedings. Lawyers who couldn’t quote scripture, Shakespeare, poetry or great literature in argument were regarded as not very good lawyers. All objections were speeches to the jury with great drama. There were no time limitations for jury selection or anything else. In the summmer there were no jury trials which is when trial would take time to go on vacation.

Auto policies were $5,000 per person and $10,000 per accident. A $100,000 jury verdict would be considered amazing. Most jury verdicts were in the $750 – $1500 range and trials often were three days only in length. As you might imagine, I tried a huge number of jury cases under those circumstances as did most lawyers of that time. In addition, I, along with most other lawyers in Skagit County, too every other  kind of case as well. Boundary line disputes, divorce, custody disputes, condemnation cases and anything else that walked in the door. No one specialized in small counties.

It has been a great adventure and Lita  and I are looking forward to another role in our lives. .

MUSINGS ABOUT BEING A TRIAL LAWYER

Poulsbo is a quaint town of about 9500 people and a drive of about one hour and a half from Seattle. It’s a Scandinavian seaport fishing town located right on the salt water.

In 1983 I received the “Small Town Lawyer Made Good” award from the Poulsbo Bar Association. The award was the brainchild of  Paulsbo lawyer Jeff Tolman. As I recall, the Poulsbo Bar Association had approximately 13 members at the time. However, Jeff had created this award and then was successful in talking some nationally known people to travel to Poulsbo to receive the award and participate in the daylong seminar as well. The guests who agreed to show up included several members of the United States Supreme Court, Gerry Spence and local lesser-known lawyers like me. Lawyers came from all over the state to attend the seminar and listen to the person Jeff had induced to come to Poulsbo.

I bring this up because it represents to me a picture of what a lawyer should represent.  Here was this creative  lawyer  in a small  town  who  managed to  establish  a seminar  involving  some  prominent  people  who were willing to travel  in some cases a great distance  to participate  in  a gathering of  other lawyers . Everyone had a good time and it was educational as well. He had done some important good work for the community and the bar. So, I got to thinking about lawyers and what they should be like. Here are some rambling thoughts.

Some years ago there was an article in the Alaska Bar newsletter written by an Alaska lawyer about why he became a lawyer.  He said that his father was a lawyer and that he would, on occasion, go to court to watch his father. One time he was there during a trial against another lawyer who was disliked by his father and the feeling was mutual.  The other lawyer had cross-examined a witness and as he came back to counsel he leaned over and said to his father in a stage whisper:  “How did you like that, you little pissant.”  His father reached up, grabbed his opponent by the necktie, pulled him to the table and the two of them begin rolling around on the floor while the judge was banging his gavel.  He said: “That’s when I knew I wanted to become a lawyer.”

One description of the role of a lawyer is to: “comfort the afflicted, and afflict the comfortable.”  Some people see the role of the lawyer like the story about W. C. Fields, the famous comedian of the 1930s who was a well-known atheist.  One day someone saw him reading the Bible and asked him why he was reading the Bible.  He said: “looking for loopholes, looking for loopholes!”

Many years ago I participated in seminars about law office management with a number of lawyers from around the country.  One of them was Harris Morgan from Greensville Texas. Harris spoke about attorney fees. The story he would tell was that his father was a lawyer and that as a young man he would work at his office.  He would overhear his father talk to clients about the fee. He said his father would tell the client: “Mrs. Smith I’m so delighted that you have enough confidence in me to hire me as your lawyer.  I intend to do the very best I possibly can for you. However, there is one thing you should know about my limitations.  I can only concentrate on one thing at time.  Therefore, we need to talk about the fee so I won’t be distracted while I’m representing you.” Harris would use this story to emphasize that it was essential the lawyer brought the fee up first, had a clear understanding about the fee and costs and confirmed it in writing as well.

As to fees, the famous Texas criminal defense lawyer Percy Forman was fond of saying: “I never charged a client more than he had.”

One thing I do know about being a trial lawyer is that if you want to be loved, find another field of practice. It’s not your role to please other people, be loved by your opponent or the judge. It is your role to do the very best for your client you are capable of doing within the rules. As Harry Truman has said, “if you want a friend in Washington, buy a dog.” If you want to be loved as a trial lawyer, buy a dog.

I realize there’s little here that is helpful, but I thought I’d pass it on anyway. Next time I’ll use something practical.

YOU SHOULD BE AWARE OF THE IMPACT OF SOCIAL MEDIA

Last Friday I spoke to the Idaho Trial Lawyer’s Association at their annual convention. On the program was Assistant Chief deputy Attorney General Brian Kane who talked about social media and  how it impacts lawyers. I thought I had a good grasp of the implications, but after listening to Brian decided I needed to talk to my partners about the subject, especially as part of our new client intake process.

Brian said  that in 2012 some 800 million people are active Facebook users, up from 200 million in 2011. There are 100 million Twitter users in the United  States and 50 million of those log in at least once a day. There are more than 150 Google LinkedIn Users as well. The important  point he made about this was that these are not just kids. His chart on the average age of  these users were in the 32 years  of age to 38 years old which means we are talking  about many of our jurors and a whole  lot of our  clients.

The risks of using these social media devices by both lawyers and clients is significant. For  lawyers, Brian pointed out, when we use these devices  we can lose attorney client privilege by the client simply forwarding  the communication  to a non party. We can unintentionally create an attorney client relationship which could lead to legal malpractice suits especially regarding issues like the statute of  limitations. Ethical rules apply to our communications. We can violate the ethical obligation of confidential communication. Then there was the lawyer who obtained a case continuance “to attend her grandmother’s funeral” and posted photos about her vacation and partying during the stay, but was caught by a judge who saw it.

For both attorney and client the most important fact is that there is no assurance of privacy and one should assume everything is public. For clients, that means what they post should be assumed to  be available in discovery or by the insurance company or their lawyers  searching. There are numerous examples  of how this can be a disaster. The plaintiff who claimed his scaring  was so traumatic to him he couldn’t wear shorts anymore, but who posted numerous  shots of him in shorts. Or the motorcycle plaintiff who said he couldn’t ride bikes anymore who posted the photo of his brand new Harley with other shots of him riding.

Brian pointed out that we can’t just have our clients delete it because that runs the risk of ethical violations plus spoliation of evidence violations. In  case the plaintiff  did delete the material and the court barred her from introducing any evidence of mental anguish because the material may have included social participation or other relevant facts.

Of course, there were the other cases involving jurors who compromised verdicts by their use  of social media during trials including one woman who texted her hairdresser about  the ongoing deliberations of the jury in the jury room. There are even cases of judges whose social media use involved judicial ethics violations and sanctions.

At the same time these devices represent a great resource for us in investigating jurors, witnesses and others. Clearly we must investigate our own clients material and make sure they fully understand the significance of what they post. There is a potential for jurors or even judges seeing  what has been posted. Bear in mind that the majority of users do not protect their sites  from review with privacy passwords or other means.

When we talk about blogs and websites we have exactly the same problems as outlined above.  Assume that everyone reads your profiles and posting. That means judges, jurors, lawyers, clients and the entire public. Do not mindlessly unload words without this  awareness at the risk of  substantial harmful consequences.

I thank Brian for this informative talk. It may well be that all of  you were already aware of this, but for me what was an eye opener was the significance of what is posted or sent as available to virtually anyone. Be forewarned.