December 2001

Letters

I would like to thank Governor Vicky Vreeland and Karen Koehler for their terrific article in the October Bar News (p.17) titled "Proud to Be a Lawyer … a Female Lawyer." Reading these terrific stories of courageous and pioneering women lawyers makes us all proud to be lawyers. Well done.

Bravo to Douglas Becker, Senator Jim Kastama and Doug Martin for their insightful letters supporting the "friendly parent" legislation (SB 5511). I, too, wholeheartedly support the friendly parent factor, because it promotes cooperation, not conflict.

  As a family law attorney for 14 years, I have seen more than enough conflict between parents over their children. Nothing in the current Parenting Act clearly promotes cooperation. Instead, parents in divorce wars battle to gain and hold ground, not wanting to cede anything to the other parent, for fear of having it used against them. (Ask any attorney whether they advise their clients to let the other parent have more time with the children during a heated parenting case.)

  The friendly parent factor would encourage parents to cooperate, and is a positive attribute that parents can demonstrate. Margaret Dore's tired, old, apocryphal stories about manipulative parents using friendly parent as a weapon do not undermine friendly parent, they only demonstrate that parents can and do use manipulation and tactics during litigation. What a surprise! Ms. Dore is naive if she believes that lying and manipulation are confined only to friendly parent issues. Any factor can be used and abused by litigious parents. And it is somewhat disingenuous for Ms. Dore to decry the effects of a friendly parent factor when it hasn't even been enacted yet. Isolated incidents of bad parental conduct and litigation tactics should not tar the overall policy. And, as pointed out by Senator Kastama, friendly parent bills have passed overwhelmingly in both the House and the Senate. The bills failed to advance due to politics, not policy.

  Despite the alarmist claims of friendly parent foes, domestic violence is a red herring in this debate. If any Section 191 factors (including mental illness, child abuse, alcohol or drug abuse, or domestic violence) are present, the friendly parent factor cannot be applied. It appears that for some domestic-violence (DV) advocates, invoking the specter of domestic violence is all that matters. They don't let a little thing like lack of evidence get in their way. To DV advocates, any time domestic violence is alleged (by the female), there is a presumption that DV has been perpetrated (by the male). It is almost an article of faith, which must then forever dictate all aspects of the parenting plan.

  I have been helping to pass friendly parent in the Washington State Legislature for over three years. Every year the opposition gets more strident and hysterical in their rhetoric. To hear them speak it is as if friendly parent is the coming of the apocalypse. They literally claim it will result in the deaths of more women and children. Yet, most parents do not engage in domestic violence or child abuse, and these families should not be robbed of a positive family law reform because a small minority of parents engage in abusive behavior.

In fact, according to Dr. Diane Lye's Parenting Act Study (1999), only 18 percent of first parenting plans contained restrictions due to all limitation factors, and only a portion of those were due to domestic violence. Opposition to friendly parent because of domestic-violence concerns is truly the tail wagging the dog. Should 82 percent of parents and children be denied this improvement because of 18 percent?

  Our current winner-take-all system brings out the worst in parents. The friendly parent bill will bring out the best. Currently, when one parent asks the other for extra time with the child, or to switch days or weekends, the usual answer is no, because the parent with the residential time fears losing the time if he or she gives it to the other parent. Under friendly parent, each parent would be able to allow the other parent extra time without fear of adverse consequences. Everyone wins: the parents establish a mode of cooperative behavior, and the children benefit directly from increased parental cooperation and reduced conflict. Dr. Lye's study concluded that high levels of parental conflict are detrimental to children of divorce. Friendly parent is one remedy for this problem.

  Those who claim friendly parent is inconsistent with our overall statutory scheme are wrong. A form of friendly parent is already embodied in the modification statute. RCW 26.09.260(2)(d) provides that if a parent is held in contempt for denial of the other parent's residential time twice in three years, or is convicted of custodial interference, this can be a basis for modification of the primary residential parent. If friendly parent is good policy for post-decree modification, why not for initial parenting determinations? Plus, enactment of the friendly parent as an initial factor will encourage more cooperative plans in the first place, and will likely reduce the incidence of future modifications.

  Finally, friendly parent is an equal-opportunity factor. It can be demonstrated equally well by both mothers and fathers. I believe the visceral opposition exhibited by most women's groups and advocates of female domestic-violence victims is due to the fact that friendly parent will level the playing field in parenting disputes. No longer will mothers have an almost automatic stranglehold on the primary residential parent. Both moms and dads will be able to demonstrate their cooperative nature, and whether they are able to place the children's best interests ahead of their own. Parenting disputes will be less about throwing mud at the other parent, and more about keeping both parents active in the child's life.

The editor's page (September Bar News, p. 15) indicated you would be "proud to be a lawyer" when defense trial lawyers "stand up to defend" the plaintiffs' bar. You claimed "junk lawsuits" were prevented by Rule 11 and the RPCs.

  I disagree with both your assertions. As to the latter, Rule 11 has been attacked by the plaintiffs' bar who want to remove any language which would allow a sanction of an attorney, as opposed to a party. In terms of using the RPCs, I would challenge you to find a case where an attorney has been disciplined for a frivolous lawsuit. That doesn't happen.

  As to the former, many defense trial lawyers have handled contingent fees in their careers, and when proposals to adopt an English rule have been floated, the Washington Defense Trial Lawyers has stood against those proposals. But to suggest that defense lawyers should support the rueful antics of the plaintiffs' bar is asking too much. All of us have been victimized by results of this litigious society — increased insurance rates emptying our pockets, bankrupt ski areas reducing our recreational opportunities, a packet of releases and liability waivers for our kids at soccer camp. These are the results of the plaintiffs' bar and I, for one, will not defend such results. There is too much litigation, and even though my livelihood depends on plaintiffs' lawyers filing lawsuits for me to defend, as a citizen, taxpayer, parent and human being, I will not defend junk lawsuits or other outrageous attempts to provoke more lawsuits.

  I am proud to be a lawyer, but more proud to be a defense lawyer.

I am stunned and offended by your "Two Cents' Worth" column in the September 2001 Bar News. In that column, you suggest that "business and insurance lawyers" should start defending the civil system; and then you wrap up with this unbelievable gem: "When the defense trial lawyers stand up to defend their trial-lawyer colleagues — and with them our open, accessible civil justice system — then I'll really be proud to be a lawyer."

What planet have you been living on?

The defense trial bar in this state has a long history and storied tradition of championing the civil justice system.

The history of the Washington Defense Trial Lawyers (WDTL) is one of involvement in bar activities, legislation, and community activities to improve the system and send the message to the public that this is a system that works and well serves its constituents. I challenge you to take a look around you at the leaders of the defense bar. Even your friends among the plaintiff trial lawyers will readily concede that the giants of the defense bar in this state — Ross Burgess, Rollie Hofstedt, Mark Honeywell, Mike Patterson, Fred Gentry, Dan Keefe, Matt Murray and hundreds of others — have spent their careers doing exactly what you imply we don't do.

Like many lawyers, I handle both insurance defense work and plaintiff cases. For over 30 years, I have been telling everyone who will listen (including high-school classes, friends, family, bankers, plumbers, log scalers, clients and jurors) that, in thousands of courthouses around this country, every working day, this is a system that works. I tell them that, unfortunately, it is a system that is somewhat like the scheduled airlines. We do not hear about the 30,000 successful, safe flights every day. We only hear about the rare, unfortunate crashes.

I know for a fact that most of the defense trial lawyers that I meet, both across the table and on the same side of the table, not only hold the same beliefs, but spread and defend these beliefs at every opportunity.

In my humble opinion, your bone-headed swipe at the defense trial bar was a case of lazy journalism that was just plain wrong. You owe a clear and ringing apology.

We were very disappointed with your recent "Two Cents' Worth" column in the September 2001 Bar News. Your bashing of the civil defense bar is inappropriate, and undermines Jan Peterson's excellent job of promoting the "proud to be a lawyer" theme. Publishing your article at the same time Mr. Peterson was finishing his term also seems ironic.

The Washington Defense Trial Lawyers has 750-800 active members and has always supported our civil justice system. Our state Bar Association should promote the "proud to be a lawyer" theme, rather than advance personal, biased, unfounded opinions aimed at a large segment of the Bar. We have good relationships with our counterparts in civil litigation and have attempted to promote Mr. Peterson's theme. Your article undermines all our efforts.

I believe the point of Mr. Panitch's editorial is the lack of public affirmation by the defense bar that the system actually works. Active debate over the roles of attorneys in litigation and how well we are fulfilling them is appropriate. What most lawyers hear through mass media, and read in profession-specific publications does not contain much "defense of the system" by the defense bar. If Mr. Umlauf and Mr. Maxa would provide some examples of the defense bar "defending the system," it would be educational for many of us, would show our common purpose, and we all would benefit. The best response to Mr. Panitch's editorial may be to give examples of why you believe his view on this subject is far wide of the mark.

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