I’m much too young to feel this damn old (with apology to garth brooks)

We just returned home after two weeks of travel in Europe so I am behind in posting to this blog. I haven’t had a chance to develop something for this week so let me share a short story of my start as a lawyer almost half a century ago.

It was forty six years ago at a movie theater in down town Spokane. A dozen or so of us gathered on a Saturday in the movie theater with our families and law school representatives. We were there to receive our law degrees from Gonzaga Law School. All of us had attended night school for four long years while holding down paying jobs during the day. I had worked for a lawyer doing briefing and other work. We were now we were receiving our diplomas (written on large parchment paper in Latin). All of us except the fellow sitting next to me. When he unrolled the paper he found it was a blank page with note inside advising that until he paid a fee owed to the school he would not get his certificate. It’s hard to believe that almost half a century has gone by since that day.

After looking for work in my home town of Anacortes and being told there were enough lawyers there already, I was offered a job as a part time deputy prosecutor for Skagit County by the Prosecuting attorney Walter ("Jack") Deierlein. I was to prosecute cases in Justice Court which were located in the towns around the county. These courts no longer exist. They were replaced by our present day District Courts. The unusual fact about these courts was that the judges were part time and were paid a percentage of any fine they assessed. Furthermore, the judges did not have to be lawyers and only two of them in the whole county were lawyers. The rest were garage mechanics and others who were allowed to serve as a judge. As you might imagine, the conviction rate was extremely high so fines could be assessed or the judge wouldn’t be paid.

Before I was hired no one from the prosecutor’s office appeared in these cases normally. As a result the custom had developed of allowing the arresting law enforcement officers to prosecute their own cases. Law enforcement officers would make a brief opening statement, testify, cross examine and sum up the case. Some became rather sophisticated. In one of my first prosecutions fisheries officer William Gufler poked me in the side and whispered: "object – hearsay."

Mrs. Cook was the only secretary in the prosecutor’s office. She was the secretary for the prosecuting attorney, the other deputy Harry Follman and myself. Since under the law we all were all part time prosecutors we all had a private practice. She had been a legal secretary for years and was fully informed about prosecution work as well as civil practice. In fact, no matter what I dictated she would type what she believed was the correct dictation and would totally ignore what I had dictated. I quickly learned to accept the fact she knew a lot more then I did about the practice of law.

The wonderful thing about trying cases before non lawyer judges was that you had to learn how to communicate simply, plainly and from their viewpoint. You learned to see the big picture and identify compelling issues because most of these judges had small regard for strict rules of evidence and were primarily interested in accomplishing their idea of justice

We had no public defender in Skagit County, but we did have John Brisky. In middle age, John had clerked his way to a law degree without ever going to law school. He had a generous spirit and represented many defendants in criminal cases both in Justice court as well as Superior court. He defended many of the Justice court cases and most of the defendants could not afford to pay much if any fee. When the judge would call out the names of defendants as their cases came up, I’d watch John finger his way through a stack of paper and if he found a name would respond that he was the attorney for the defendant. It was his form of a fee contract. The papers were printed form promissory notes signed by the defendants for the amount of his fee. The great majority were never paid.

After awhile I was allowed to prosecute cases in Superior court. Judge Charles Stafford and Art Ward were the two Superior court judges in Skagit County. Both played a significant role in my continuing education as trial lawyer. Judge Stafford was a student of the law. He was the first judge to ever serve on all three court levels of Superior court, Appellate court and Supreme court. Judge Ward was a very bright lawyer who had been a plaintiff’s trial lawyer for many years in Sedro Woolley. Both judges considered it part of their responsibility as a judge to educate lawyers who appeared before them. Judge Stafford required legal briefs on every conceivable issue in the case and was a stickler about rules of evidence. Judge Ward had little patience for poor trial tactics and unprepared lawyers. Neither were reluctant to point out during the trial their dissatisfaction with the work or the conduct of lawyers who appeared before them. In addition, as part of their educational process, if you asked, and sometimes even if you didn’t ask, they would advise lawyers about proper trial procedure or trial tactics during recess or after court. Lawyers would often wait for the jury verdict with the judge in his chambers in the old court house building. When you heard sounds of toilets in the next door jury room, through the wall, continuously start flushing you knew the jury had a verdict.

When I started the practice of law, lawyers in the county were always ready to help young lawyers. For example, Ruben Youngquist had the largest probate practice in the county. When I had a question about probate I went to Reuben who would open one of his metal filing cabinets, search around and pull out a file which he would hand to me and say: "Here, follow this file and copy the forms." Then he would carefully explain what I needed to do. George McIntosh was an outstanding lawyer and a great defense attorney with his low key down to earth approach. He had a great skill of simplifying and organizing. He taught me the benefits of a three ring notebook with dividers and notebook paper long before lawyers were advised to use a trial notebook. Clyde Fowler, was a local lawyer who once was my ghost writer in a successful negotiation. I had a plaintiff’s case and didn’t know how to try to settle it. The Seattle defense lawyer never found out who was the real brains behind the skillful negotiation.

I don’t think I ever missed an opportunity to spend some time watching jury trials in Mount Vernon whenever an out of town lawyer was involved. I watched some of the leading lawyers from around the state try cases in the Mount Vernon courthouse. Many of them were willing to discuss trial with a young lawyer during the noon recess or after court. The trial judge was always willing to give advice after court as well. I remember one trial when a Seattle lawyer found out that a prospective juror was a distant relative of his opponent, Mount Vernon lawyer Alfred McBee. He asked the juror if he thought that fact might influence the juror. The juror said "Well, I should would hate to see Alfred lose." Robin Welts was one of the finest trial lawyers I observed in trial. He did both plaintiff and defense work as well as maintaining a general practice. Most lawyers had a very general practice in our county. Robin was an exceptional trial lawyer who was always willing to give advice and help. Both he and McBee also were elected president of the Washington State Bar Association.

When I began the practice we followed laws of code pleading – not notice pleading which someone has described as nothing more in a complaint then "pointing and grunting." Pleadings were very technical and the motion practice significant as mistakes were often fatal. One had to be careful about the wording of a complaint.

There were few depositions and with limited scope. Interrogatory practice and our modern discovery practice didn’t exist. Trial by ambush was the norm for the most part. Trial lawyers had to be prepared to cross examine witnesses they may never have heard about before and new nothing about until they began testifying. Discovery meant using your wits or a private investigator to find out what you could before trial. In earlier days in was not uncommon for witnesses to be unavailable to the other side until they testified or perhaps not around until the trial was over through intervention of one of the parties. Lawyer developed the skill of thinking on their feet in trial, of dealing with the unexpected and in being prepared for surprise. It had the advantage of not spending a lot of money on discovery and in shorter cross examinations since one never new what to expect.

In these pre television days, people would come to watch significant trials as a form of entertainment and any lawyer who couldn’t quote literature or scripture was not prepared to trial jury cases. The whole pace was slower. Things were simpler. It was a very different era then today. There were no jury trials in the summer. Jury trials, in general were shorter then today. A two to three day jury trial was common and some lawyers would try several cases a month. The amounts involved were significantly less. A common auto policy was the "nickle and dime" policy of $5,000 per person and $10,000 per occurrence which was considered more then adequate coverage. There were no million dollar verdicts. In fact, when Melvin Belli achieved a $100,000 jury verdict in California it was national news as a record verdict.

I’m thankful for the blessing of having been allowed to act as a lawyer during this period and up to the present time. Being allowed to represent people who are in need of help legally is an obligation to always put the client’s interests first. I am as convinced now as I was when I was handed my diploma that being a lawyer was a privilege

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