April 2009

Letters to the Editor

Bar News welcomes letters from readers. We do not run letters that have been printed in, or are pending before, other legal publications with overlapping readership. Letters must be no more than 250 words in length, and e-mailed to letterstotheeditor@wsba.org or mailed to: WSBA, Attn. Letters to the Editor, 1325 Fourth Ave., Ste. 600, Seattle, WA 98101-2539. Bar News reserves the right to edit letters. Bar News does not print anonymous letters, or more than one submission per month from the same contributor.

Nevada's arbitration alternative

Judge Small's article (February 2009 Bar News) proposes an alternative to mandatory arbitration. That alternative exists in Nevada and has been tested and refined over the past five years. The tension in Nevada, as with most states, was between the injury lawyers and the insurance industry. The insurance industry insisted on the right to a jury trial and the plaintiff bar wanted a final adjudication on smaller cases that avoided expert witness expenses.

Nevada has long had mandatory non-binding arbitration of cases worth under $50,000. The percentage appealed to the regular trial tract was significant. The solution that has dramatically reduced the backlog of jury cases is the short trial program, a parallel semi-private trial tract that seems to have satisfied both the insurance industry and the injury bar.

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It is an excellent system for smaller cases and has shortened the regular docket by well over a year. It is normally about six months from de novo to a short trial verdict. Anyone interested in more detailed information should contact ADR Commissioner Chris Beecroft Jr., 702-671-4439; fax, 702-671-4484.

David H. Putney, Las Vegas, Nevada

Nuremberg parallels to present

Parallels between the past and the present can always be found, some more obvious than others. I refer to "The Nuremberg Trials: A Washington Connection" (January 2009 Bar News) by Chief Justice Gerry L. Alexander.  It is a nice piece of history that leans sentimental. Yet it is also about accountability for actions taken. I think about accountability for the action not taken in the face of that which is known. Do we, you and I suffer from guilt as a result? Perhaps only when the mind is brought to focus on the moment we cover over with the noise of living. We are familiar with the excuse after the act that "Those were my orders." Sometimes there exists a pervasive silent understanding and "this then is how we do it here" or "we have been doing it like this for years, ain't no need to change." Is that arrogance peeking over the fence?

Let us bring the point of those trials to the present time and apply it here and now to the pervasive crimes against our most helpless individuals, those most easily taken advantage of. It is no secret that in this culture, in this country in which we live that we allow those that have the means to take anything of value from those who lack the ability to protect themselves . . . .

Dean Libey, Spokane

If it isn't breaked …

I seed Mr. Cumbow's statement he writed in the Bar News (February 2009) about how some folks think the past tense of plead is spelled plead. Well, I know it is not spelled plead, or pled either; it is spelled pleaded. Maybe Mr. Cumbow does not realize that times have changed. They have. Not too long ago, I picked up my newspaper and right there in print was a reporter's article with the words "pleaded guilty." Immediately I thinked, "That semi-educated fool should have written pled guilty, not pleaded guilty." I keeped seeing the word "pleaded" in the papers. Then I also heared prime-time newscasters use "pleaded" as they readed the news. One even corrected himself after he sayed "pled." At first the word grated on my ears, but then the logic occurred to me: why do we need all those irregular verbs anyway? Maybe pleaded is the seed of a good, logical idea: why not just use "–ed" to designate all past tense verbs? It could be extended to other verbs, and simplify our learning by eliminating irregular forms. So the next time I heared pleaded, it maked so much more sense. Each day when I goed out and getted my newspaper, I thinked about this new concept as I readed how people pleaded. The persons who comed up with the idea to use "pleaded" instead of "pled" leaded me to a new way of thinking.

Sam Furgason, Bellevue

That, which is true

It is great to see an article like Mr. Cumbow's in your February issue. After studying the which/that rule in modern English usage, I realized there is a simple solution for those who do not want to figure the rule out, but also don't get it wrong: Never use "which" when you can use "that" and never use "which" without a comma. Try it.

Marc Kittner, Seattle

Expert advice on experts

For the last decade or two I've switched (schizophrenically at times) between being an expert (children's accidents) and a lawyer. I would like to echo the sentiments of Mr. Thorsted in his fine article ("Selecting Expert Witnesses," February 2009 Bar News) and add a few of my own. First, pick an expert committed to the scientific method — someone who can entertain a number of hypotheses, then systematically use the facts in the case to evaluate these. Second, find an expert aware of their limitations. Too many experts try to please by opining on all of the issues in a case. Third, find someone who can think on their feet. Experts who have given papers at conferences, lectured or taught extensively have these skills. Fourth, find an expert who has published in referred journals. They are more cautious and avoid taking positions that jeopardize their credibility. Fifth, be sure that you have an expert appropriate for your case. The author does a great job of showing how he researched his case and recognized that he needed a human factors expert to address the full constellation of factors. Sixth, find an expert who can be a devil's advocate, anticipating the arguments of the other side. Seventh, look for creative experts who can develop theories that have not been previously advanced. Eighth, routinely search databases such as PSYCHINFO for human factors experts, clinical psychologists and MEDLINE for medical experts.

W. Andrew Harrell, Edmonton, Alberta

Running out of banks

The proposal to require IOLTA accounts to be placed only with banks that pay "comparable" interest is misguided ("President's Corner," December 2008 Bar News). This proposal has been advanced by the Legal Foundation of Washington and is being examined as a possible amendment to RPC 1.15A at the Supreme Court. The selection of an IOLTA account bank turns on significant factors other than the interest rate. For me, in my tiny community, the decision turned on which bank would permit me to make an indemnification agreement, required by the WSBA, so I could issue time loss checks to injured workers on the day of deposit. Some banks do not permit this, regardless of interest rate. My former IOLTA bank stopped permitting this, so I had to change banks. I am running out of banks.

Finally, it is not easy to tell whether the account is paying "comparable" interest. Banks increasingly set interest rates based on the amount of money in the account, which is quite variable — as is their interest rate.

Laurel Smith, Rochester