November 2000

Letters

I am writing to urge members of the Bar to consider voluntarily submitting appellate records and briefing in electronic format in addition to the traditional paper record. In Aluminum Company of America v. Aetna Casualty Insurance Co., 140 Wn.2d 517, 521 n.1, 998 P.2d 856 (2000), a recent decision of the Washington Supreme Court, we noted the voluminous record and briefing were submitted electronically to the Court. The submission of cases in electronic format can do a great deal to assist appellate courts in the handling of their workloads.

I would recommend appellate counsel advise opposing counsel of their intention in advance and consult with the appropriate appellate court as to the preferable format for the electronic submission. I hope members of the Bar Association will consider this opportunity to employ technology to enhance case handling in our appellate courts.

As lawyers, we know that people are entitled to their own opinions, but not their own facts. Yet a recent letter to the editor by Maria S. Diamond, the president of the Washington State Trial Lawyers Association, seemed to present not only a unique opinion but also a unique set of facts. Like the fact that the letter blamed Governor Bush for tort reform laws that were passed in 1993, two years before Governor Bush took office.

Setting that aside, it is indeed true that Governor Bush supports reasonable, responsible efforts to ensure that that our courts are used for legitimate lawsuits. Many lawyers share the concern that our courts and our lawyers are being misused by some in our society who would rather sue than solve a problem.

That is why Governor Bush has supported common-sense legislation to reform tort laws in Texas. The core of the argument put forward by the trial lawyers president is that Bush supported a law in Texas that placed a $750,000 cap on non-economic damages. This much is true. But that in no way restricts the ability of the courts to award other damages. In Texas, if you are seriously hurt, you will receive a serious recovery in court. In fact, there is no limit to what can be awarded in actual damages. But you won't be able to win millions of dollars in non-economic damages for hot coffee spilled on you.

The next issue raised by the letter attacks Governor Bush for planning to support similar common sense legislation as president. But again, the facts are important. And the fact is a litigation explosion is clogging America's courts, costing U.S. high-tech companies, small businesses, and consumers more than $150 billion a year. As lawyers, we should all be concerned about this. As a young lawyer, Abraham Lincoln often talked about how he saw his job as one of being a "peacemaker" who can "persuade your neighbors to compromise." This is our tradition — being problem solvers. Yet, too often today we are not allowed to serve this purpose.

The remaining two-thirds of Ms. Diamond's letter is devoted to attacking various groups that support tort reform. We are not writing to defend those groups. We are writing to defend Governor Bush, his record, and his agenda.

The truth is Governor Bush is not proposing anything that should concern any lawyer. Like Lincoln, he believes that our value is not measured in overblown damages, but in positive results. That's why many lawyers are supporting Governor Bush. He will work with us, not against us, to bring some common sense solutions to our court system.

I read, with interest, Professor Spitzer's article (September Bar News, p. 20) regarding why attorneys have been hated throughout history. I was surprised, however, by his reminiscence that when he began work on his essay he thought he might find, at some point in history, there existed a golden age when all lawyers were beloved by the populace.

My surprise was based on the experience of lawyers from the beginning of the practice of legal advocacy. There are always two sides to a legal dispute and one must lose. Therefore, 50 percent of the represented — the losers — hate their advocate. In addition, a remarkable percentage of prevailing parties hate their advocate because he or she did not extract more from or impose more on the loser.

Based on the above, it should not be unexpected that many of the populace have hated, do hate, and will continue to hate attorneys.

While the vast majority of attorneys do not deserve such a strong negative emotional reaction, sadly there are those few who have earned it.

Hugh Spitzer's article, "Why Lawyers Have Often Worn Strange Clothes...," in the September Bar News was excellent reading. I appreciate the time and effort he put into gathering the history for the article and putting his thoughts on paper. It was also a good reminder as to why many of us enjoy practicing law — to provide good service to the community while earning a living at the same time. Sometimes with the weight of billable hours, accounts receivable and accounts payable hanging over our heads, we may forget the service to the community element.

In his letter to the editor last month (September Bar News, p. 9), William F. West of Bothell complains of inequitable billing practices of the Skagit Valley Herald with regard to King County attorneys versus Skagit County attorneys. Mr. West suggests that the entire organized bar should target "Skagit County newspapers and/or Skagit County attorneys who are practicing in our territory."

I don't think this is going to work. Most Skagit County attorneys don't go to King County. We cannot justify the expense of the drive, parking fees, and long wait to argue a motion for temporary possession of the pickup truck and the hunting dogs.

If Mr. West would have called me prior to publishing his notice to creditors, I would have told him to advertise in the Skagit Argus, where all my fellow attorneys do their legal publications. It's a lot cheaper.

Just give us a call, Mr. West. We will be glad to help. If you can't make it up to the courthouse to present your final papers, most local attorneys would present them for you without charge. We consider this type of help to be common courtesy to fellow members of the Bar, no matter where they reside.

The array of candidates for the King County Superior Court on the ballot at the last primary was bewildering, even to me as a King County lawyer. I have practiced law for some 37 years and I didn't know much more about the candidates than most nonlawyers. On the eve of the election I called a usually well-informed colleague for his opinion and he wasn't sure who was running. Studying the voters pamphlet helped a little, but only superficially. The problem is the lack of adequate and reliable information about the candidates.

The solution is for the state or bar associations to put more effort and fairness into the selection process. This is an important process — important enough to spend some real money on.

First, the rating process conducted by bar committees is flawed. It is flawed in the makeup of the evaluators, their apparent biases, and the lack of time and effort they put into the task. Since the evaluators are volunteer lawyers, they can spend only a few hours away from their practices on committee work. That's inadequate. What can a volunteer committee really learn about a candidate by reviewing a questionnaire and, as a group, interviewing him/her for 20 minutes around a big table? Committee members do not always have time to contact and talk to all or even most of the candidate's references. I would guess from some of the ratings I've seen that few committee members have ever taken the time to sit in on a trial conducted by very many, if any, judicial candidates.

It stands to reason that most bar committee members come from the large downtown law offices because they are the firms that can afford to give their associates or partners time off — or even encourage time off — to serve on bar committees. As a result the committees tend to have an establishment bias that favors deputy prosecutors, assistant AGs, city attorneys and sometimes public defenders. Incidentally, it seems that lawyers from the big, prestige downtown law firms don't often seek superior court positions. So that leaves candidates coming from the public sector, who are better known by the committee, as their preferred candidates. A candidate from a small law firm with varied civil and criminal experience with outstanding qualifications, such as Richard Sanders (who was a private attorney from a small firm when he ran for Supreme Court a few years ago), will usually get an "unqualified" rating or at best "adequate." Fortunately, the voters paid little attention to now Justice Sanders' undeserved low rating. But the rating itself, in the face of his demonstrated ability and qualifications, is glaring proof of my point.

Many have speculated that voters are influenced by the candidate's name, favoring a name with a familiar or pleasing ring to it. That should be researched by political scientists or polling organizations. Clearly, though, the name factor would diminish markedly if voters had more reliable information about the candidates.

One way to do that is for bar committees to establish a published set of defined criteria, assigning points to different levels of the criteria. Criteria elements should be as objective as possible. So, for example, if the committee thought this important, it could assign a point for each year of practice. Certain points could be assigned to different types of experience and the number and length of trials of various kinds that each candidate had during the previous years — civil, criminal, divorce, etc. If being a government lawyer, a court commissioner, a pro-tem judge, etc. is to be given weight, then fine; just make it known up front that these experience factors have defined point values. Then the results, which would be more objective, uniform and predictable, could be published in terms of total judicial evaluation points.

More importantly, during the months leading up to the election the bar should be given some money to hire full-time evaluators, perhaps retired judges from other counties, to study the local candidates. Any announced candidate who is not already a judge should be given immediate assignments as a pro-tem judge and/or arbitrator. Then the corps of evaluators would, on a rotating basis, observe the trials or hearings conducted by all candidates, both sitting judges and lawyers. These evaluators would also conduct in-depth interviews with each candidate and would meet face-to-face with (not just attempt a fleeting phone call) to all persons listed as references, e.g., lawyers who had tried cases before judges running for re-election or who had tried cases with or against a lawyer candidate. The evaluation corps would then make a report on the performance of the candidates to the committee and the report itself would be available to the public.

Judicial races can be influenced by campaign spending at least as much as, if not more than, other political races. Some candidates have gone out and essentially bought the position. We should end the practice of lawyers contributing to judicial candidates and start right here with public financing of these campaigns, including televised forums on the major TV stations. Never again should we be hit by surprise with a large field of candidates of varying renown.

Outright appointment of judges would be as flawed as the present system is, i.e., by political considerations, an emphasis on who the selectors know, and a "good-old-boys" network. Selection of judges is so important that we must do and spend whatever is necessary to give voters the most complete and reliable guidance possible in making their choices at the polls.

Readers are invited to submit letters of reasonable length to the editor. They may be sent via e-mail to comm@wsba.org  or provided on disk in any conventional format with accompanying hard copy. Due date is the 10th of the month for the second issue following, e.g., May 10 for publication in the July issue. The editor reserves the right to select excerpts for publication or edit them as appropriate.

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