Judicial Dispute Resolution

KCBA Appellate Practice Section Division I Reception

jefflanz — Mon, 06 Feb 2012 15:58:22 +0000

Save the Date!

Thursday, March 8, 2012

4:30 – 6:30 PM

One Union Square Building,

1 st Floor Reception Room

The KCBA Appellate Practice Section is pleased to announce that we will be honoring former Division I Court of Appeals Commissioner James Verellen at a wine and cheese reception on March 8. Please save the date, more details will follow!

For more information or to sponsor the event, please email Sidney Tribe (Sidney@tal-fitzlaw.com) or Cynthia Jones (cjones@jones-legal-group.net).

King County Bar Association Honors Commissioner Verellen

jefflanz — Sat, 14 Jan 2012 01:43:08 +0000

The King County Bar Association Appellate Practice Section is honoring Commissioner Verellen with an award in appreciation for his years of service with the Court of Appeals and his extensive efforts to promote effective and professional appellate practice.

Four Questions about the First Woman to Clerk at the United States Supreme Court

jefflanz — Fri, 09 Dec 2011 05:11:56 +0000

By: Judge Larry A. Jordan, Ret.

I recently learned who the first woman law clerk was at the United States Supreme Court. I was very surprised and elated about my discovery, but I also felt a sense of ignorance. To see if others were more knowledgeable, I started asking the lawyers at my mediations the following four questions:

Who was the first woman to clerk at the United States Supreme Court?
What year did she clerk?
Which justice did she clerk for?
From which law school did she graduate?

I have asked approximately 100 lawyers these four questions, and as of this writing, only one lawyer has been able to answer any of my questions. (Douglas Strandberg, of Friday Harbor, guessed the law school that she attended.) I am confident that some lawyers in Washington state know the answers, but the lawyers I questioned confirmed that they all shared my ignorance.

The Answers

Helen Lucile Lomen. (She dropped the Helen and was known publicly as Lucile, Miss Lomen at the Supreme Court, Lucy to many friends, and Lu to her family.)
The year was 1944–1945.
The justice was William O. Douglas.
The law school was the University of Washington.

Lomen’s Background

Lucile Lomen was born in Nome, Alaska, on August 21, 1920. Both of her grandparents moved to Nome during the gold rush at the end of the 19th century. Her paternal grandfather was a lawyer who was appointed to the Alaska Territorial Court by Calvin Coolidge in 1925 and again by Herbert Hoover in 1930. Her father was a prominent businessman with the Lomen Commercial Company and a member of the Alaska Territorial Senate. Her family temporarily moved to Seattle in 1934, but because of a fire that destroyed much of Nome, the family continued to reside in Seattle. Lomen graduated from Queen Anne High School in 1937. She later attended Whitman College in Walla Walla and graduated with honors in 1941. In 1947, Lomen wrote that Whitman “prides itself on its friendliness and . . . is largely devoted to the grooming of students who will later enter the professional schools.” She also wrote that “[n]ow that I look back on my college career the outstanding part of my life at Whitman consists of living, working, and playing with people.”

Lomen applied and was accepted to the University of Washington School of Law, which had been admitting women from the time it began in 1899. In 1941, some East Coast law schools such as Harvard did not admit women. There were three women in her graduation class. She was Law Review editor, vice-president of the Law Review board, published several articles (including an article on constitutional law for which she received a prize), and graduated first in her class. Ann Lomen Sandstrom, one of Lucile’s three younger sisters, says, “I was always in awe of Lu — my first mentor. She taught me how to study and the fun of learning. She had an intense focus on schoolwork, and later on law.”

Of course, after the United States entered World War II, many of the male students did not return to law school, which affected the recruitment of law clerks. In those days, the associate justices each had only one law clerk, making the choice particularly important. Prior to that time in history, there had been no women law clerks in the Supreme Court. In 1944, Justice Douglas wrote to Judson F. Falknor, dean of the University of Washington Law School, who had supplied him with four of his prior law clerks. Justice Douglas indicated that he would hire a woman if she “is absolutely first rate.” Dean Falknor recommended Lomen. After checking with faculty at his alma mater, Whitman College, and receiving very favorable recommendations, Douglas hired Lomen. Lomen described Justice Douglas as very businesslike at the court and someone who could do legal research faster than anyone she had ever known. In 1964, Lomen wrote that in addition to the professional growth that occurred from associating with Justice Douglas, “a more concrete benefit is the number of doors that have been open to me as a woman in the profession because of that year.” Justice Douglas described Lomen as having “a fine mind” and “a great capacity for work.” Lomen often worked 16 hours a day and would sleep on a couch in her office.

While at the Supreme Court, Lomen socialized with the secretaries, and although the other clerks accepted her, she felt there were differences based on gender, age, legal education, and geography. Most of the other clerks were from the East Coast and were educated at such prestigious law schools as Harvard, Yale, and Columbia as well as the University of Chicago. Lomen once stated that she and a law clerk from Wisconsin were considered westerners, and the two of them “thought differently…than the way the other eight thought.” She said, “I never knew if my problem was because I was a woman or because I was younger, or what.”

After clerking for a year, Lomen returned to Washington state and worked as an assistant state attorney general for three years. Thereafter she worked at General Electric from 1948–1983, retiring at corporate headquarters as compensation and benefits counsel. Her sister Ann said that “the entire Lomen family was extremely delighted when, after retirement, she chose in 1989 to return to Seattle.” Lomen died on June 21, 1996, at the age of 75.

Lomen’s Legacy

Lucile Lomen was a true pioneer in many ways. Certainly life in Nome in the 1920s must have been difficult. From the description of her work ethic, those early frontier years must have helped form her values and penchant for hard work. She clearly demonstrated her legal abilities while a law student at the University of Washington. She wrote several scholarly articles, held many leadership positions, and graduated first in her class. The Honorable Ruth Bader Ginsberg in a speech given at Wellesley College on November 13, 1998, said that Lomen’s “Washington Law Review Note on the Privileges and Immunities under the Fourteenth Amendment, published in 1943, has had remarkable staying power. Lomen’s student note appears this very semester on Harvard Law Professor Laurence Tribe’s Constitutional Law seminar reading list.” To say that Lomen was ahead of her time is more than true, as it was not until 1966 that the next woman law clerk was hired in the Supreme Court, when Justice Hugo Black hired Margaret Corcoran.

Like many of us, Lomen was lucky to live in a place that afforded her many opportunities, including the opportunity as a woman to attend law school. As Lomen wrote in 1946, “[t]oo many women in the profession have been discriminated against to make a worth-while enterprise for one who is not interested in good hard work.” The University of Washington Law School and its graduates should celebrate the fact that Kellye Testy is its first woman dean, and that 1944 graduate Lucile Lomen was the first woman law clerk in the United States Supreme Court.

Lomen’s observations about the differences between her and the other clerks are very insightful. Gender diversity and equality has a positive effect that is not easy to define but clearly exists in most institutions, including the judiciary. As Lomen observed, geographic diversity can also be important. The current U.S. Supreme Court is made up of graduates from East Coast law schools who often hire clerks from the same schools. If Lomen were asked today whether a more diverse geographical perspective is desirable in addition to increased gender equality, I am sure her answer would be an unequivocal “Yes.”

Republished with permission from Washington State Bar News, November 2011, pages 27-29.

Judge Larry Jordan, Ret., was appointed to the King County Superior Court in 1991 and served until July 2001. Before taking the bench, he served from 1975–1991 as a commissioner of Division I of the Washington State Court of Appeals. He was law clerk to the Honorable Jerome Farris and the Honorable Keith M. Callow, and also served as an assistant public defender for the state of Alaska. He is a graduate of the University of Washington School of Law and is currently a mediator/arbitrator at Judicial Dispute Resolution, LLC (JDR). He can be reached at ljordan@jdrllc.com.

Sources: Conversation with and review of selected papers and letters of Ann Lomen Sandstrom; “Lucile Lomen: The First Woman to Clerk at the Supreme Court,” David J. Danelski, Journal of Supreme Court History, (1999) Vol. 23, No.1. Photo: Lucille Lomen in a passport photo from 1946.

Top Ten Tips for Successful Mediation

kymlaroche — Tue, 30 Aug 2011 23:06:17 +0000

By Paris K. Kallas and Charles S. Burdell

Attorneys often ask for suggestions on the best approaches to mediation. Here are ten techniques routinely used by attorneys who achieve good results for their clients at mediation.

1. Prepare. Prepare. Prepare.
There is no substitute for thorough preparation. As any mediator will attest, prepared attorneys succeed at mediation. Thorough preparation includes a full understanding of the facts and governing law. But it also includes considering other factors, such as which mediator to choose, the timing (is your case a candidate for early mediation?) and whether your client is emotionally ready (an especially important factor in matters involving families). Thorough preparation includes conducting sufficient discovery (informal or otherwise) to allow a realistic evaluation of the case. It also includes determining whether additional documents should be gathered and compiled, not just to establish your position but also to respond to the other side’s concerns. Finally, thorough preparation includes a realistic assessment of the strengths and weaknesses of the case and a candid discussion of those strengths and weaknesses with your client.

2. Prepare your client. And yourself.
Attorneys perform many roles, from advocate to counselor. When preparing for mediation, an attorney should step back from the advocate’s role and engage in a candid and realistic assessment of the case. What is the client’s overall chance of success? Which obstacles stand in the way of success? What is the range of likely outcomes? Candidly discuss these questions with your client before the mediation. Explain the mediation process and that mediation necessarily involves compromise, often substantial. Explain to your client that “victory” does not happen at mediation; if winning is the goal, the case should proceed to trial (remembering “victory” at trial is never certain). With that in mind, brainstorm and consider all possible settlement options, especially those that would not be available through litigation. It is equally important to explain the advantages of mediation. Take this opportunity to explain that mediation allows client input and control; if the case goes to arbitration or trial, someone else decides the client’s future. Finally, discuss costs with your client. Be sure your client knows exactly how much she has spent to date and how much more she will spend if the case doesn’t settle. Help your client calculate the cost of not settling. How much energy will be devoted to ongoing litigation? How much time will be diverted from running the business? What is the impact of delaying sale of the family home? Take all steps needed to ensure that your client fully understands all options on the table as he considers settlement.

3. Choose the right mediator.
Our region has a wealth of talented mediators. Enjoy this wealth and choose the right mediator for your unique case. Consider whether the parties would respond better to a collaborative or to a directive approach. Would the parties benefit from a mediator with extensive experience in the subject matter area? Does your client need to tell it to a retired judge? Does someone need to hear it from a retired judge? If the mediation arises post-verdict, consider whether settlement efforts would benefit from a mediator with appellate experience. Consider these, and similar questions, in choosing the right mediator.

4. Decide the best timing for mediation.
Because each case is unique, there is no hard and fast rule as to the best timing for mediation.

Early mediation provides numerous financial benefits, including savings in costs and attorney fees. It also minimizes the distraction and disruption of ongoing litigation. It allows businesses to get back to work and families to begin to heal. And pre-filing mediation provides the additional benefit of privacy by resolving the matter outside of court.

For early mediation to succeed, the situation should have stabilized so that the facts may be fully understood. Is the family ready to sell the house? Has the plaintiff’s medical situation reached maximum improvement? Early mediation also requires that the sufficient, core discovery (informal or otherwise) be complete. Does the investigating officer’s report sufficiently describe the incident? Has the lead expert (rather than all five experts) been deposed? Are the financial documents available for review? Only when the core, necessary discovery is complete do the parties have confidence to proceed with early mediation.

If unable to schedule early mediation, consider other factors in determining the right time to mediate. Consider what discovery is needed, both for your client and the other side, before the parties may consider settling. Consider also whether mediation should occur before or after motions for summary judgment and other definitive pre-trial motions.

5. Prepare the mediation submission to convince the other side.

Prepare the written mediation materials with the opposing party in mind. Anticipate and address the other side’s concerns. Remember that providing hard documentation strengthens your bargaining power. If expenditures are at dispute, provide the invoices and proof of payment. If your client claims financial instability and lack of assets, submit the proof. Consider providing a certified statement from a knowledgeable accountant or an attorney-eyes-only financial declaration. If wage loss is an issue, provide the relevant records for review.

Recognize the other side’s interests and show how your position makes good sense for both sides, not just yours. If the opposing party is a sophisticated business, prepare the materials to convince the CEO and Board of Directors that your offer results in a good business decision for them. If it makes financial sense for one spouse to keep the family home, submit the supporting financial data. Brainstorm about the other side’s concerns and how the concerns may be addressed.

Remember that tone matters. While it is appropriate to address the other side’s weaknesses and risks, do so with respect. The written submission should be a persuasive, but polite, explanation that it is in the other side’s interests to settle. Insults rarely facilitate settlement.

6. Exchange mediation submissions.
Generally, parties should exchange the written mediation submissions. Ensure that your client reads not only your materials, but also the opposing party’s materials. The opportunity to reflect on the other side’s position creates a more productive discussion at mediation. If your client wishes to keep certain information confidential, that information may be addressed in a separate letter to the mediator.

Exchanging written submissions make particular sense in personal injury actions where a lien exists against the plaintiff’s recovery. Because the lienholder’s refusal to compromise may prevent settlement, it is in everyone’s interests for the defense to provide plaintiff with its mediation statement so that plaintiff may provide it to the lien holder (with defense permission). This exchange allows the lien holder to understand the risk of litigation and provides incentive to reduce the lien.

7. Secure the appropriate decision maker’s participation.
Too many mediations fail because the person with authority is not at the table. Because mediations take time and because each mediation has its own pace, it is difficult to persuade someone to settle if that person has not participated in the mediation process.

8. Keep sight of the non-financial components.
Many settlements include non-financial terms such confidentiality, remediation, letters of recommendation, non-disparagement agreements, and tax consequences. Be creative and consider such methods to settle your case. If re-employment is not an option, consider what language the employer could use to explain the employment gap. Don’t wait too late in the mediation to raise these non-financial terms. Although often perceived as secondary to monetary terms, non-financial terms are important and should be raised early enough to be included in the core negotiations.

9. Be patient.
Although an efficient way to resolve disputes, mediation can be time-consuming, frustrating, and emotional. Expect these hurdles and be prepared to work through them. Understand your client’s interests and convey them to the mediator. Remain firm, but not insulting. Acknowledge the other side’s interests and create momentum by giving where you can. Listen with an open mind and remain receptive to creative solutions that address all parties’ interests. While the mediator’s message may not always be well-received, remember that the mediator is working hard to show both sides their risks and areas calling for movement. Stay at the table and allow the mediator to guide the parties through the hurdles.

10. Close the deal.
Once the parties reach settlement, the key terms should be recorded in writing and the parties should sign the writing. Too often, this important works begins at the end of mediation, when parties and counsel are tired. This creates problems, including omitted terms (payment date) and disputes about finalizing the settlement (how to exercise the right-of-first-refusal). These problems can be minimized by bringing a draft settlement agreement to the mediation. As the parties reach agreement on certain terms, counsel should edit and tailor the draft settlement agreement to conform to the settlement. This practice ensures that key concepts are included and that key language (such as the scope of a release), is addressed and resolved while everyone remains at the table. Finally, consider appointing your mediator to serve as arbitrator to resolve any disputes regarding interpretation and implementation of the settlement agreement.

Paris K. Kallas and Charles S. Burdell are panelists at Judicial Dispute Resolution, LLC. Both are retired King County Superior Court judges who now serve at JDR as mediators, arbitrators, special masters, and consultants for trials and appeals.

JDR Annual Charity Golf Tournament

kymlaroche — Mon, 15 Aug 2011 19:52:05 +0000

For many years, Judicial Dispute Resolution has sponsored an annual charity golf tournament at Washington National Golf Club in Auburn with the net proceeds donated to a charity. Over the years, the average net proceeds have been $10,000, which means we’ve raised over $100,000 for charity in the combined tournaments.

This year, Mike Withey won our tournament and has agreed that next year’s charity will be the First Tee of Greater Seattle. We don’t play scrambles, only real golf where every player plays his/her ball and the player with a skin on the hardest hole wins the event Mike won with a natural eagle on the 17th hole, which is a par 5 and played 445 yards with water hazards everywhere. Mike blasted his drive right down the middle and then hit a “Blue Angel” of a three wood onto the green over two water hazards. He sunk the 8 foot putt and won the tournament! Congratulations Mike!!

Next year’s event will be on Friday, July 13, 2012, with an 8:00 am shotgun start. Put it on your calendars now!

Charles Burdell visits Istanbul, Turkey

kymlaroche — Thu, 23 Jun 2011 20:24:00 +0000

Charles Burdell recently returned from Istanbul, Turkey where he participated in a conference sponsored by the Union of Istanbul Bar Associations entitled Arbitration Practices Around the World. Turkish lawyers want to increase the use of arbitration to reduce court congestion in the Turkish judicial process. Burdell was asked to explain how arbitration works in the United States and, specifically, how it works in his practice at Judicial Dispute Resolution. Approximately 100 Turkish lawyers attended the all day conference. Sandra Stephens, an attorney with the firm of Wylie Rein of Washington D. C., also made a presentation. Ms. Stephens is the current chair of Alternative Dispute Resolution section of the American Bar Association. Her presentation included a description of arbitrations administered by the American Arbitration Association and arbitration practices in the insurance and re-insurance industries. Other speakers included attorneys from Russia, Italy, and Turkey.

Burdell was able to stay following the conference for two days to see the sights, which included the Sultan’s Topkapi Palace , the Blue Mosque and St. Sophia. Istanbul is divided by the Bosphorous, the waterway which connects the Mediterranean Sea with the Black Sea and which divides Europe from Asia. The conference and Burdell’s hotel were on the European side. On the last day of his visit, Burdell got on the wrong ferry and ended up in Asia! Luckily, he was able to find the right boat back to Europe!!

18th Annual Northwest Dispute Resolution Conference, April 29-30, 2011 University of Washington School of Law

kymlaroche — Wed, 06 Apr 2011 17:31:17 +0000

JDR is proud to be a Bronze Sponsor of the 18^th Annual Northwest Dispute Resolution Conference. Co-sponsored by the University of Washington School of Law and the WSBA ADR Section, this premier conference is the largest regional dispute resolution conference for counsel and neutrals. The program includes over 30 outstanding programs.

On Saturday April 30, JDR panelist Paris K. Kallas will present a session on early mediation, how it works and why.

Visit the Northwest Dispute Resolution Conference webpage at http://www.mediate.com/nwadr for full details.

Rev. Dr. Martin Luther King, Jr. Luncheon

kymlaroche — Wed, 08 Dec 2010 18:36:03 +0000

On Friday, January 14, 2011, JDR will be a Gold Sponsor of the King County Bar Association’s Rev. Dr. Martin Luther King, Jr. Luncheon, an annual event celebrating and promoting the life and work of Dr. King. The luncheon, held at Seattle’s Sheraton Hotel from noon to 1:15 p.m, will feature remarks from Julian Bond, the former Chairperson of the NAACP. JDR urges all lawyers and judges to attend this important event. Tickets may be purchased at www.kcba.org.

Judge Paris Kallas Joins Maritime Law Association of the United States (MLA)

kymlaroche — Fri, 03 Dec 2010 21:21:56 +0000

Judge Kallas recently joined the Maritime Law Association of the United States (MLA). Recognizing that admiralty and maritime practice is a unique area of law, the MLA is a professional organization concerned with improvements in this area. The membership consists of attorneys involved in maritime law, judges active in admiralty matters, admiralty law professors, and non-lawyers that hold significant positions in the maritime field. An Affiliated Organization of the American Bar Association, the MLA is represented in the ABA House of Delegates.

JDR sponsored two very successful Happy Hours for the KCBA Young Lawyers Division.

kymlaroche — Mon, 22 Nov 2010 22:29:53 +0000

The first was on November 19, 2009 at Thoa in downtown Seattle. Former judges Burdell, Jordan, Finkle, Spearman and Baker took time to visit with the 75 young lawyers who attended (a KCBA YLD Happy Hour record), giving them an opportunity to become acquainted with experienced law professionals at the top of the profession. Both KCBA and JDR considered the event a success – a great opportunity for the young lawyers and a similarly great opportunity for JDR to promote is services.

The second event was held on July 29, 2010 in JDR’s new offices, drawing about 85 guests. This time, JDR provided all of the refreshments and invited the JDR judges and also the current sitting judges, so the experience for the young lawyers was enhanced. The setting was very pleasant, giving the guests an opportunity to see the office and the areas where disputes are resolved as they interacted with the jurists.

KCBA is very grateful to JDR for providing these opportunities for its Young Lawyers Division and had used the model to promote other events going forward. We sincerely hope to continue to work with JDR.

Thank you Judge Burdell et al!