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May 2009DeNovo: WYLD’s E-magazineA special feature highlighting some of the articles that appear in DeNovo, the official publication of the Washington State Bar Association’s Young Lawyers Division. Want to see more articles like these? DeNovo went green last year and is now available online at www.wsba.org/media/publications/denovo. Would you like to receive DeNovo in your inbox? E-mail
A young lawyer learns about practicing law from an unlikely source by Allison Peryea They say it is important for a new lawyer to have a mentor. Mine is named Princess. She is a five-year-old cat that I adopted from the animal shelter a couple of months ago. She has white fur and whiskers and is about the size of a minivan. When I took her to the vet for her post-adoption checkup, I learned that her previous owner had blessed her with a full name — Princess Useless. But Princess is far from useless. In fact, she has taught me countless lessons that are directly applicable to my litigation practice. 1. Don’t take everything personally: some people may just be allergic to you. Princess loves everyone who is not a dog or a vacuum. But some people cannot even stand to be in the same room as her. They may think she’s cute and love her winning personality, but they are simply allergic to cats. Princess, however, could care less about whether she makes people sneeze and gasp for air. She actually seems intent on winning these people over, crawling onto their laps as they try to swat her away while frantically reaching for their inhalers. Princess’s tenacity in the face of outright rejection can be a lesson to young lawyers who have to deal with hostile opposing attorneys. In my experience, the layer of politeness blanketing initial interactions with opposing counsel is frequently worn off to expose a core of irritation. I have dealt with raised voices, dodged calls, angry letters soaked with indignation, and outrage. Initially it was difficult for me not to take such hostility personally: it’s hard to ignore the arrows when you are the target. Eventually, however, I realized that the threatening letters and outraged voice-mails are not directed at me personally, but rather at my efforts to represent my clients. Opposing attorneys act angry and annoyed to intimidate young lawyers. They also act that way when you hit a weak spot in their case. The best way to respond is by taking a cue from Princess: disregard their irritation and keep doing your job, which in her case involves a lot of sitting and staring. I do not, however, recommend crawling into any laps. 2. Sometimes you have to show up early, stay up late, or vomit cat food to get the job done. Like a teenaged couple with uptight parents, Princess and I do not spend as much time together as we would want. I usually have to wake up early to make it to the office before the coffee shop downstairs runs out of cinnamon rolls. And I typically don’t get home until late, having to hit the gym after work to combat other kinds of rolls. Fortunately, Princess “makes time” to get attention from me. This involves keeping me up at night or waking me up in the morning. She knows that exactly 30 minutes before the alarm is set to go off is “Smother Allison Time.” Her efforts are extremely effective: it is hard to ignore an 11.5-pound marshmallow wrapped around my neck, purring like a jackhammer. Similarly, to succeed in a legal practice a lawyer has to “make time” to get things done — even though it often seems that our lives are already booked solid. Though a regular working schedule would be nice, it is about as realistic as fat-free cheese that doesn’t taste like a Barbie doll’s leg. Deadlines do not care that the phone keeps ringing or your response to a motion took more drafts to polish than you have years of life. This means working at night if you are a night person, or working very early in the morning if you are insane. 3. The reward for dealing with crap is usually more crap. A litter box is an unpleasant but necessary member of a house cat’s entourage. And, like a Hollywood socialite, it requires constant attention. It seems the minute after I clean it, Princess is making another “royal visit.” Legal work is very much like cleaning Princess’s throne. The minute you take care of one mess, another one needs to be cleaned up. There is not a lot of time to celebrate a favorable settlement or successful motion to compel, because focusing a lot of time on one case just means work on other cases has, um, piled up. The reward for a job well done is often simply the opportunity to get to work on cases that have been shelved due to a busy schedule. And those projects probably won’t smell any better than the one you just finished. 4. Own your territory, including windowsills and the space under beds. I live in Princess’s apartment as her in-house support staff. The fact that I pay the rent and all the bills is completely irrelevant, as is the tiny detail that she is a house pet and I am a human being. Once she got her paw in the door, she took over and got down to the serious task of shedding white fur on every square inch of the place, with an emphasis on anything black. Princess’s transition to the head of the household was far smoother than my transition from a student to a professional, though mine involved fewer lint brushes. When I first started working as a lawyer I often felt like a soccer rookie in a baseball league — new and completely out of place. I was painfully aware of the fact that quite literally everyone had more experience than I did. But after a few motions and oral arguments, I learned that what really matters in the end are the facts you are given, the law that applies to them, and the amount of work you put in. As Princess aptly demonstrated, it doesn’t matter how long you have had a license — pet or legal — as long as you put it to good use. 5. Love all dozen or so pounds of yourself, but stay open to suggestions for improvement. Princess does not care about self-improvement. The only exercise she does each day is blinking. But Princess is willing to entertain suggestions about how to be a better pet. For example, she stopped clawing the dining-room rug — a favorite extracurricular activity of hers — after I bought her a cardboard scratching pad, sprinkled catnip on it, and mimed a very bad “Cat Scratching Cardboard” impression. Princess’s willingness to change for the better should be an example to young lawyers. It is difficult during the beginning of a legal career to listen to suggestions for improvement without getting defensive — we are an argumentative bunch, after all. But any advice will, in the end, make us better attorneys. This is especially important if you are like me and do not have a promising mime career ahead of you. 6. You may eat the same thing for every meal, but at least you are getting fed. Princess eats the same thing for every meal on every day of her life: dry cat food and water, rarely but sometimes from the toilet. Once I tried to change up her nutritional habits by going organic during a short but haunting period now known as the Thanksgiving Week Regret. Princess has never complained about her repetitive diet, organic or otherwise. In fact, it appears to be the center of her universe. Practicing law can sometimes seem as monotonous as Princess’s meal plan. After working for a while, you start encountering the same legal issues, the same client questions, and the same forms. But this is not necessarily a bad thing. It gives us an opportunity to become more efficient as we develop expertise in dealing with similar cases. Also, in this economic climate, there is something to be said about being fortunate to have any type of job where we are privileged to practice law. Despite her wealth of practice-related knowledge, Princess is currently unavailable for speaking engagements, as cats are physically incapable of speaking. She is, however, scheduled to spend the rest of her life crouched on her scratching pad, molting fur, and staring blankly into space. Registration to attend this event is now open; attendance is limited to those who would describe themselves as neither a dog nor a vacuum. Allison Peryea is a second-year litigation associate at Rand L. Koler & Associates, P.S. She can be reached at 206-621-6440 or allison@kolerlaw.com.
If you build it, they will network by Etan Basseri I faced this same question in 2007 when I returned to Seattle after finishing law school at the University of California, Davis. I was involved with nonprofits and community organizations but did not find the forum I wanted for networking with fellow young professionals. To be sure, getting started in a profession is intense, and sometimes all a person wants to do after a long day at the office is vent over a drink. Could that energy be channeled into something more productive? After all, young professionals — lawyers, doctors, engineers, to name a few — often face similar challenges (long hours, high responsibility, difficult clients) and enjoy similar benefits (high-impact work, intellectually stimulating projects, war stories about difficult clients). As an active member in the Seattle Jewish community, I liked the idea of having a worthwhile forum for young Jewish professionals. With that in mind, I formed a group on Facebook, called “J-Pro: Young Jewish Professionals of the Greater Seattle Area.” I invited young Jewish professionals with whom I had attended the University of Washington as an undergrad and convinced a few friends to do the same in their own circles. Thanks to the viral effect of online social networking, the group had more than 100 members within three months. With a critical mass established, the next step was to formally establish a mission and recruit leadership. A mission would guide the programming and leadership personnel would innovate and execute those programs. In the case of J-Pro, I was lucky to meet motivated individuals early on who stepped forward to take on leadership roles. Their input and past experience helped shape our mission: To build strong relationships among young Jewish professionals in the Greater Seattle area; to create opportunities for learning and growth in their fields; to foster mentorship in their respective industries; and to create a culture of collegiality that encourages business referrals and philanthropy. On a personal level, I liked that our organization drew on traditional Jewish values in caring for the well-being of the Jewish community as well as the Seattle-area community at large. Should you start your own networking group? First, identify your constituency based on locale, ethnicity, and common interests. Second, determine your mission. At the risk of sounding unoriginal, you could incorporate “advancing members’ careers while providing a benefit to the greater community.” Third, actively market the group. Facebook works really well for getting the word out on a new group. Finally, recruit leadership (even ad hoc volunteers) as early as possible and delegate the workload. J-Pro would not be what it is today if not for the hard work of everyone on its Board of Directors. Programming is an anchor for your group: It keeps the sense of community strong and gives people an opportunity to meet in person. Depending on the character of your group, there are a number of program models that can work well. J-Pro events tend to always have a “meet-and-greet” component where members can chat and exchange business cards. The content of the program can focus on professional development, work-life balance, or a topic specifically relevant to your constituency. A good habit is to step back and ask, “Will this event give members an opportunity to learn something that is of value to them?” There are also a couple points of caution worth noting: First, when forming a mission, I recommend against making overtly political affiliations. Such strong designations can be detrimental to building a broad membership base. Second, maintain focus on the goals you set out by not trying to achieve too much. There exist a number of young professional groups that try to serve every need of the demographic; if you spread yourself too thin trying to do everything, you may end up doing nothing well. To summarize, starting a professional networking group requires at least three things: Focus, delegation, and follow-up. 1. Focus by defining a formal mission. A possible fourth element is creating a nifty acronym, but after having strayed from that with “J-Pro” (more of an abbreviation, really), I have omitted it. Best of luck to you. Etan Basseri is the current chair of J-Pro’s Board of Directors. He is an associate at the Law Office of Evan L. Loeffler, where he focuses on real estate litigation and landlord-tenant relations. He can be reached at 206-443-8678 or ebasseri@loefflerlegal.com.
Keep Your Ethical Muscles in Shape by Colin Folawn Young lawyers are confronted with several challenges early in their careers. Many of these involve legal ethics. To navigate these challenges, young lawyers should adopt an ethical exercise regimen to be fit, limber, and prepared for when those dilemmas come. The following tips may help you to develop your personal ethics regimen. Know the rules. You cannot make ethical decisions if you don’t know the rules. You may have learned a great deal about professional responsibility in law school. If you are licensed to practice, you learned enough about Washington’s rules to pass the bar exam. But if you do not use this knowledge, odds are that you’ll lose it quickly. Every attorney has an independent obligation to make decisions that are ethical and professional. See RPC 5.1, 5.2. So how can you stay apprised of the rules, notwithstanding your busy schedule and many professional demands? Read one rule a day. Set aside 10 minutes every day to read a different ethics rule or comment. Consider it your ethical workout for the day. My mentor recommends that trial lawyers review a civil rule a day. This is good advice for those of us in litigation. If you can’t get through a rule or section on one day, read two the next day. Write in your rules book. During your daily ethics regimen, mark them up. Write in the margins, use post-it notes, and underline portions as you go. This will keep you more engaged during your review, and you may recall your prior review more readily. Don’t forget about the comments. Washington adopted model comments in 2006, along with some state-specific ones. Although the comments are not the rules themselves, they provide important guidance and perspective. See RPC Preamble and Scope, cmt. 21. Some cite to case law. See, e.g., RPC 1.10, cmt. 11. Whenever you review an ethics rule, read its accompanying comments thoroughly. Be on the lookout for comments in other rules that relate to your particular rule. Own your practice. As a young lawyer, you may be working mostly or exclusively on another attorney’s files. This doesn’t mean that the ethical decisions in the matter are not your concern. Each of us has an independent obligation to make ethical decisions in our practice. See RPC 5.2. Moreover, even young lawyers are responsible for the non-lawyers whom they supervise. It’s no excuse to commit an unethical act simply because a partner so directs. See RPC 5.3, 5.2. When we rely on others to take actions required of us by the ethics rules, we assume the risk that that action wasn’t taken or wasn’t properly taken. See, e.g., RPC 1.0, cmt. 6 (stating that “a lawyer who does not personally inform the client or other person assumes the risk that the client or other person is inadequately informed and the consent is invalid”). Be curious. If you work in a firm, ask questions of your colleagues. Take advantage of open-door policies, practice-group meetings, or supervision and mentoring. Don’t pretend that you have all the answers in the world. Engage in positive discourse with the goal of getting to the right result. If you don’t work in a firm, attend CLEs as frequently as possible, and ask questions. Make a habit of asking other lawyers what they think (without divulging confidential client information). One of the best sources is the WSBA’s ethics line: 206-727-8284. React promptly. When you face an ethical crisis, you should address, and thoroughly analyze, it as promptly as possible. Some ethics questions can be resolved or corrected if you act promptly enough. In fact, sometimes taking the proper time to analyze a problem will reveal that there was no problem in the first place. Start by reading the rules (and comments). As obvious as it sounds, attorneys sometimes have lengthy conversations about ethics issues, and their personal experiences or insight, long before re-reading the rules. If you are fortunate to work at a firm that has general counsel or loss prevention/ethics counsel, ask him or her your questions. Keep in mind the privilege limitations that may be imposed by Washington case law and their capacity in representing your firm. See VersusLaw, Inc. v. Stoel Rives, LLP, 127 Wn. App. 309, 111 P.3d 866 (2005); see also ABA Formal Opinion 08-453. If you don’t have general counsel available, talk with other attorneys in your firm. Consider calling the WSBA’s ethics line as soon as possible to permit them sufficient time to get back to you. Once you’re ready to make a decision about your problem and take action, document what you do. Memorializing letters can be good reminders to clients of your conversations with them, and memoranda to your file can remind you (and your counsel) of what you did or did not do if a Bar complaint is later filed. Get in the habit of flexing your ethical muscles and exercising your ability to make decisions in accordance with the rules of professional conduct. The more you do, the more ready you’ll be to make the countless ethical decisions that you’ll have to make in the practice of law. Colin Folawn is a trial and appellate lawyer with the law firm of Schwabe, Williamson & Wyatt in Seattle. He is a member of Schwabe’s Ethics Committee and co-founded “The Ethics Hour,” a free monthly ethics seminar for Washington lawyers. He can be contacted at cfolawn@schwabe.com or 206-407-1500.
Navigating Apologies with Clients by Jamila Johnson Hema O’Shea sits in a small office at a local public elementary school. Around her are crayon stick figures on 8 ½" x 11" paper taped to the walls. A shelf of old textbooks lines the north partition. O’Shea is a Seattle Public Schools psychologist. She, along with educators and parents, teaches children social skills, such as the art of a good apology. Ask any third-grader about apologies and they will tell you that it is good to say, “I’m sorry.” But O’Shea strives to take apologies one step further. She asks for children to understand and express why they are saying that they are sorry — and, in the apology, take ownership of their actions. “They sometimes think just saying you are sorry makes everything better,” she says. O’Shea explains that just saying you are sorry is almost an unconscious reaction to certain situations, but making a true apology requires a bit more. In our society, the phrase “I am sorry” only goes so far, and a partial apology does not mean much to someone who has been injured. This wisdom, imparted to children on the playground, is also being imparted to adults facing the possibility of a lawsuit. Last year, the New York Times published an article about medical centers across the country adopting the policy of disclosing error and apologizing. The result: fewer lawsuits, smaller settlement awards, and lower malpractice insurance. But just as O’Shea observes on the playground, there is also a difference in the adult world between a full apology and just saying, “I’m sorry.” In 2002, Jennifer Robbennolt, then a professor of law at Missouri University, conducted a study with interesting results for attorneys. This study revealed that when no apology was given, 52 percent would accept settlement instead of filing a lawsuit, compared to the 73 percent of the respondents who would accept the offer with a full apology. But interestingly, when a partial apology was given, only 35 percent would accept. Washington law has some evidentiary protections for apologies. Washington Evidence Rule 408 makes inadmissible statements of compromise for the purposes of establishing or disproving liability or damages. In 2002, the Washington State Legislature enacted RCW 5.66.010, which states: “The portion of statements, writings, or benevolent gestures expressing sympathy or a general sense of benevolence relating to the pain, suffering, or death of a person involved in an accident, and made to that person or to the family of that person, shall be inadmissible as evidence in a civil action.” But the statute also says that “[a] statement of fault, however, which is part of, or in addition to, any of the above shall not be made inadmissible.” This is problematic, since studies suggest that partial apologies (those that do not include any statement of fault) do not deter litigation in the same way. In fact, under Robbennolt’s study, a partial apology may be worse than no apology at all. In 2006, the Legislature enacted RCW 5.64.010. The statute provided that an apology provided by a healthcare provider to an injured person (or that person’s guardian), if made within 30 days of an act/omission that is the basis for alleged professional negligence action, is not admissible in a civil action, arbitration, or mediation. Unlike RCW 5.66.010, RCW 5.64.010 covers “any statement, affirmation, gesture, or conduct expressing apology, fault, sympathy, commiseration, condolence, compassion, or a general sense of benevolence.” (Emphasis added.) Regardless of whether an attorney represents plaintiffs or defendants, there are some dos and don’ts that attorneys should remember when it comes to apologies. Do ask detailed questions. Attorneys should be prepared to ask their clients a variety of questions about any statements made after an incident when litigation is a possibility. Attorneys should not provide blanket instructions to their clients to not apologize and instead remain silent. It is better to explain to clients what the pros and cons of an apology can be before an incident occurs — especially when it comes to professional healthcare providers. In non-healthcare situations, attorneys should always ask whether any apologies included a statement of fault. Don’t assume that a statement is excluded under ER 408 or RCW 5.66.010. Also, attorneys should evaluate the value of the case early. An apology admitting fault may be helpful to settling a case early when attached to a reasonable settlement amount. If an early settlement is in the best interests of the clients, the sooner the apology occurs, the sooner settlement may be possible. Just as it takes a bit of practice to learn how to apologize, lawyers may have just as many issues adapting to the philosophy that early apologies are good for a client. Litigators are often focused on winning. Somehow, “winning” has been seen as diametrically opposed to expressions of sympathy and fault. But as more studies emerge regarding the success of apologies, this impression is quickly changing. Being prepared to offer advice on the power of an apology is a must-have skill for attorneys in the twenty-first century. Jamila Johnson is a litigator with Schwabe Williamson & Wyatt and is the associate editor of DeNovo. She is also the mother of a third-grader learning the value of apologies. She can be reached at 206-407-1555 or jajohnson@schwabe.com. |
