Trial and error. Trials and tribulations. Trial by ordeal. Trial. If you are a client, there is often terrible anxiety associated with “going to trial.” Lawyers also feel this anxiety. The case is out of their control once it is in the hands of the jury. Who knows what will happen then?

For lawyers in civil practice, much of their effort consists of, in the first instance, attempting to persuade the “other side” of the righteousness of your (their client’s) position. This often takes the form of attempting to persuade an insurance adjuster or adverse party to compensate you in a fair, full, and timely fashion. This, of course, is hard to do since the adjuster is paid by the insurance company to get the matter resolved at the least expense – and is in no particular hurry to do so. Adjusters are not rewarded for paying out the most money they can, even if such payment would be fair. The adverse party, of course, is motivated by the desire to thwart your desires. You are the opposing side. Consider how “tilted” the “playing field” of this negotiation is: you are negotiating with someone who is paid to oppose you and, in many cases, whose career trajectory only improves with the number of claims resolved at the lowest payout possible. No lawyer should feel defeated by the fact that persuasion sometimes falls short in such a context. No attorney can guarantee that the opponent will treat you fairly. As a client, you must, at a minimum, understand that if the settlement is not to your liking, taking the matter to trial is the alternative. While the first choice of settlement ends matters, it may not do so on a satisfactory basis that enables you to feel good about it. Trial, however, is no guarantee that the outcome will be better than an unsatisfactory settlement; an outcome after trial can be better or worse than the settlement you rejected as unsatisfactory.

Still, the decision to”go to trial” for a client is often filled with anxiety, particularly for a client for whom the courtroom is an unfamiliar, if not fearful, place. Many lawyers have worked for years in law school and practice to hone their skills, like a platoon whose members have gone through basic training and war games but still have yet to face battle. Even good lawyers have some anxiety with trial – and this is often true of some of the best, who channel their anxieties into superior case preparation. It would be very strange if such a lawyer – including many fine lawyers with some trial experience – did not feel some anxiety over the prospect of trial. Such anxiety can be a good thing if it focuses one’s efforts on anticipating challenges and preparing thoroughly. There is also the “Imposter Phenomenom” where many lawyers, who throughout schooling founded their own self-esteem and confidence on external criteria of self-worth (accolades, awards, grades, etc.), lack the confidence in their ability to succeed in trial. Will they be found wanting?

What are the things to worry about?

First, trial (unlike mediation, for instance) involves disempowering the parties and placing responsibility for decision-making in a third-party neutral, usually a judge or arbitrator. Fear of powerlessness is certainly a legitimate concern. Suppose the judge or jury is predisposed against your case? Suppose the judge or jury, in whose hands the future of the case rests, is not up to the task? These are legitimate worries. A person with a good case should be concerned that their case is resolved on its merits.

Second, fear of failure figures prominently on the eve of trial. What if you are “blind sided” by issues that you have not anticipated? What if you do poorly, reveal in a humiliating fashion your shortcomings as an attorney, client, truth-teller, or witness, or let down your colleagues, family members, co-workers, friends or clients? There is an expression: “You are only as good as your last trial.” Even successful attorneys fear failure. Sometimes this failure may be perceived as simply getting a disappointing outcome. In my experience, however, it is better to measure success against what was available by way of settlement. Trial does not guarantee perfect justice or even a better result than what was offered in settlement. It simply moves the power to reach an outcome from the parties to the judge or jury.

Third, fear of being judged and being found wanting can also be applied to the merits of the case. Earlier I wrote that you might be afraid that the case would not be decided on its merits. Now, I suggest that there may be reason to fear that it IS decided on its merits. In other words, if the jury learns the complete – I mean absolutely full and complete – truth, perhaps the outcome will not be favorable. One may simply fear that the jury will take the side of the other party. “Losing” means that the jury did not agree with your view of events based upon the evidence admitted; “winning” means that the decision-maker/s agreed with you. Sometimes in our deepest core, we know that the case is not so one-sided as we would have others believe – and which, in the heat of trial or the fog of war, we have ourselves come to believe. The jury has not gone though the prolonged odyssey regarding the case that you, the client, or you, the client’s lawyer, have. The jury is likely to see things at a high level of abstraction, free of emotion born of involvement, investment and interest. They may well view the case as you, yourself, have in fleeting moments of insight or fear. In short, resolving a case on the merits may not please either side completely. As Lincoln said so eloquently in his Second Inaugural: “The prayers of both could not be answered, that of either answered fully.”

Fourth, fear of being left in an untenable financial or legal position. Trials are expensive mostly because they are time-consuming and often involve retention of expert witnesses at significant cost. They also involve a huge lost opportunity cost: the value of time expended that could have been invested moving forward rather than looking backward in an effort to resolve through trial the issues that arose in the past. On top of that, the non-prevailing party is liable for payment of the prevailing parties taxable costs including the cost of filing, service, and the cost of depositions to the extent entered into evidence. Such “taxable” costs are listed in RCW 4.84.010. In some cases where their are “fee-shifting” provisions, a party may be responsible for the reasonable attorneys’ fees of the other side. This can be a particularly bitter responsibility on top of a disappointing outcome and can give rise to a financially significant risk.

Trial should not be the subject of irrational fears. Submitting one’s case for consideration and decision by a jury of one’s peers can be the right choice. It should be made in consultation with counsel after a thorough review of the evidence and the risks and uncertainties of a trial. Evaluating the strengths and weaknesses of your case, your witnesses, your evidence, and yourself is essential. One good rule of thumb is to assume that anything you know or fear will become known about your case will, in fact, come out at trial. It is very, very difficult to control the truth or to try a case on anything less than the whole truth in context. In the end, trial is an option, but is not the only option, as we shall consider shortly.

Isaac Asimov’s famous Three Laws of Robotics were featured in a number of his stories (for example, “Runaround”), his novels (“The Robots of Dawn” and “I, Robot” among others), and his “Foundation” series. They provide:

When your lawyer represents you, he or she is likewise bound by “laws,” generally, the Rules of Professional Responsibility. These Rules operate much like the First and Second Law of Robotics – but do not require that a lawyer sacrifice his or her own existence in the representation – unlike, say, a robot. In fact, RPC 1.16 specifically mandate that a lawyer shall withdraw if the representation will result in violation of the rules of professional conduct, if the lawyer’s mental or physical health materially impairs the ability to represent the client, or if the lawyer is discharged by the client.

If the client persists in fraudulent or criminal conduct or uses the lawyer’s services to perpetrate a crime or fraud, then withdrawal is appropriate. This is also true if the client insists upon taking action that the lawyer considers repugnant or with which the lawyer has a fundamental disagreement. To the extent possible, withdrawal should be accomplished so as to avoid material adverse effect on the interests of the client.

This is sort of like what I call the “Black Beauty” standard. You may recall the story of the horse, Black Beauty, who refuses to take his master across a washed out bridge despite being ordered to do so, saving the master’s life by disobeying. Lawyers – and robots – are also required to act so as to prevent their client from coming to harm. In other words, the First Law of Robotics (‘do not harm”) takes precedence over the Second Law (“obey”).

Lawyers, like good horses and robots, must exercise judgment to determine when obeying the client will hurt the client. The lawyer may refuse to perform such imprudent or repugnant acts based upon a fundamental disagreement. Clients should be glad of this constraint. Otherwise, they may find themselves in deep water like, for example, Black Beauty’s master had Black Beauty obeyed his improvident order to cross the washed out bridge!

I have had the chance to serve on the Rules of Professional Responsibility Committee of the Washington State Bar Association (WSBA), as special district counsel for the WSBA Office of Disciplinary Counsel, as a Hearing Officer on Disciplinary Matters and written and lectured on legal ethics. There is much to know and learn about ethical questions. A good place to start is understanding the interaction between the First and Second Law of Robotics.

A good lawyer, like a good horse (or even a good robot), should not blindly obey orders. Such orders cannot be complied with if they work as a fraud upon others, further a criminal enterprise, or even if they simply lead to a fundamental disagreement. The lawyer need not proceed with a representation that has been rendered unreasonably difficult by the client or which will result in an unreasonable financial burden on the lawyer. Most important, a lawyer is obliged to use his or her independent judgment to make sure that, within the bounds of the law, obeying the ciient’s orders will not harm the client. This requires the exercise of independent professional judgment and protects the client from rash, imprudent, or even criminal conduct.

A competent lawyer is one upon whom is reposed tremendous responsibility by the client, including the responsibility to say “No” when appropriate. A lawyer is more than a robot. But, as Isaac Asimov reminds us, even a robot sometimes has to say “No.”

The default policy in American jurisprudence is the so-called “American Rule,” leaving legal fees to be borne by the party incurring the fees. This may be contrasted with British jurisprudence where fees are routinely shifted from the prevailing party against the non-prevailing party. The “American” system wins praise for its avoidance of the “chilling” effect that fee-shifting would have on innovative litigation (e.g. products liability claims, civil liberties actions, etc.) and for its protection of the rights of citizens arising in cases that simply cannot be vindicated without incurring fees that (absent fee-shifting) would vitiate any remedy by exceeding the amounts at issue.

Washington State, like most sister jurisdictions, follows the American Rule with the default being that attorneys’ fees are borne by the party that incurs them unless there are public policy reasons supporting fee-shifting. Such policies in Washington State include, for example, the Insurance Fair Conduct Act, RCW 48.30 et seq., which awards attorneys’ fees and costs of litigation to a prevailing insured who proves that they have been subjected to unfair practices; Federal civil rights (§1983) claims; actions under RCW 19.86 [Washington State Consumer Protection Act]; Domestic Relations Child Support (RCW 26.21.325); Wage Claims under RCW 49.46.090, and, of most importance here, appeals from arbitration awards under the Mandatory Arbitration Rules ( MAR). The statutory basis for fee-shifting in the MAR arises in the context of longstanding Washington State policy. Since 1979, counties in Washington State have had a local option to implement mandatory arbitration pursuant to RCW 7.06. It was introduced in King County with a jurisdictional limit of $10,000 in 1980, upped to $15,000 two years later, increased to $35,000 in 1989, and later to the current level of $50,000.

If a case is filed in King County, Washington or most Washington counties, arbitration is mandatory for cases involving the award of damages under $50,000. This affords the litigants a quick, inexpensive alternative to a jury trial. The right to jury trial is, of course, preserved by the right of appeal. Appeals, however, are discouraged by the existence of a “fee-shifting” provision. If the appealing party fails to improve his or her position from the arbitration award, the appealing party must bear the other side’s litigation costs – including legal fees.

I have had the privilege to be an early advocate and supporter of Mandatory Arbitration and served as a member of the Bench-Bar Task Force on Mandatory Arbitration. In my article in the Washington State Bar News, October 1996: How Much Justice Can We Afford?: The Argument for Mandatory Arbitration, I noted that by 1989, half of all civil, nondomestic cases went to arbitration and 97% were resolved without a trial de novo in superior court. As I noted there:

Initial objectives emphasized reducing court congestion and costs. Yet society most benefits from reductions in time to disposition, reduced litigation costs and increased access to justice. Prompt resolution of disputes has incalculable benefits, not the least of which is the liberation of productive energies otherwise engaged. Reduced litigation expenses and the resultant increase in justice move us closer to the attainment of essential social goals. Institutional savings are secondary. Nonetheless, it should be noted that mandatory arbitration spares judges prehearing motions for cases quickly diverted into the arbitration track. ….Regarding civil cases resolved more than 150 days after filing … only 3.6% of those in the arbitration track went on to a trial de novo, as opposed to 6.6% of the non-arbitrated cases.”

Access to justice requires fee-shifting in the context of mandatory arbitration cases. Such cases, as in the instant matter, cannot be undertaken by counsel at all unless the promise of simple, cost-effective (economical) adjudication held forth by mandatory arbitration is fulfilled. If the party against whom judgment has been rendered in arbitration is free to appeal without consequence, the purposes of mandatory arbitration are thwarted. Once the losing party at the arbitration appeals, the parties entering arbitration with the promise of prompt and cost-effective resolution find that the MAR process has not only failed to fulfill its promise, but actually worsened their position: the case now has to be tried twice: once in arbitration and a second time at trial. Without consequences to the appealing party, incentives to enter MAR in the first instance would evaporate, cases in MAR would return to the trial docket and superior courts would be flooded with cases that could not be handled cost-effectively. Ultimately, such cases would be without remedy. A whole class of litigants would be deprived access to justice.

The architects of the MAR were well aware of this practical challenge: disincentives to appeals had to be built into the system to deter those who would use litigation costs to foist settlements upon the financially weaker party independent of considerations of merit. The principal deterrence to frivolous appeals for trials de novo in superior court is the fee-shifting of post-award fees. Additional disincentives were considered, including shifting pre-award fees and expert witness costs. This latter is a fee-shifting stratagem employed in the Insurance Fair Conduct Act.

GR [General Rule] 16 states the purpose underlying the MAR:

Purpose. The purpose of mandatory arbitration of civil actions under RCW 7.06 as implemented by the Mandatory Arbitration Rules is to provide a simplified and economical procedure for obtaining the prompt and equitable resolution of disputes involving claims of fifty thousand dollars ($50,000.00) or less. The Mandatory Arbitration Rules as supplemented by these local rules are not designed to address every question which may arise during the arbitration process, and the rules give considerable discretion to the arbitrator. The arbitrator should not hesitate to exercise that discretion. Arbitration hearings should be informal and expeditious, consistent with the purpose of the statutes and rules.

MAR 7.3 gives effect to this purpose using mandatory “shall” language respecting fee and cost-shifting:

Court decisions have been unwavering in their support of mandatory arbitration as a means of combatting congestion and delays in the courts and to discourage meritless appeals. See, e.g., Nevers v. Fireside, Inc., 133 Wn.2d 804, 815, 947 P.2d 721(1997); Wiley v. Rehak, 143 Wn.2d 339, 348, 20 P.3d 404 (2001). Hutson v. Rehrig Intern., Inc., 119 Wash. App. 332, 334, 80 P.3d 615, 616 (2003). (at 334: “The purpose of the mandatory arbitration scheme is to ease court congestion and discourage meritless claims. Perkins Coie v. Williams, 84 Wash. App. 733, 737, 929 P.2d 1215 (1997);” at FN1: “The court shall assess costs and reasonable attorney fees against a party who appeals the award and fails to improve the party’s position on the trial de novo ….” MAR 7.3.) The courts have zealously guarded against interpretations of the rules that would undermine full recovery by the prevailing party for costs and fees against those parties who initiated appeals, yet failed to improve their position. It should be noted that under the MARs (Mandatory Arbitration Rules), the prevailing party is permitted to “lower the bar” by which improvement of his or her position is measured by use of an “offer of compromise.” For example, if the arbitration award is, say, $35,000, the prevailing party may offer to compromise and accept $25,000 (or any number less than the award). If the non-prevailing party fails to accept the offer (even though less than the award(!)), the prevailing party will need only to improve its position above $25,000 in order to be entitled to its award of fees. This means that by obstinately refusing to accept the offer of compromise, the appealing party is now exposed to the risk of being made to pay substantial attorneys’ fees – often in excess of the amounts at issue. On the other hand, the prevailing party is at risk: they must do better than their offer or not only get a lesser verdict from a jury, but bear all of their own costs and expenses, substantially eliminating any meaningful recovery.

The single most important disincentive for the filing of ill-considered demands for trial de novo is the accountability that the appealing party who fails to improve his or her position has for the attorneys’ fees incurred by the prevailing party. It is, after all, wholly the responsibility of the appealing party that costs and fees were incurred post-award, to say nothing of the inconvenience to the parties and the burden to the system. The award of post-award fees to the prevailing party against the appealing party who fails to improve his or her position has two salutary impacts: it deters de novo appeals that tend to increase cost congestion and it compensates plaintiff’s counsel for the efforts undertaken, thereby enhancing access to judgment. The application of a multiplier (twice the fees actually incurred, for instance) is warranted in recognition of the risk of the undertaking, the fact that pre-award fees are not compensated, and to encourage representation of a class of litigants, which, but for fee-shifting, would often be unable to obtain counsel.

Mandatory arbitration is so important to maintaining a functioning civil justice system and the ability to obtain justice for the significant cases in the range below $50,000 that courts should seriously consider awarding attorneys’ fees with a “multiplier” of 2.0 to provide disincentives for appeals from arbitration awards. This is particularly true in cases involving insurance companies, which, as professional litigants, employ the costs and delays in the civil justice to extract settlements in the small, but signficant, case and pursue unsuccessful appeals, burdening both the injured party, their own insured, and the court system.

Insurers are professional litigants and economically “rational” actors, whose tactics have been informed by the experience in tens of thousands of cases. They know how to make a profit. Their plan: collect premiums and then deny responsibility, delay payouts, and defend liability actions to keep from paying them out – regardless of the merits. One method that is slightly less attractive for them in Washington State than it used to be: filing frivolous appeals to stretch out the case.

When I served in the Washington State Senate, my first bill addressed frivolous appeals where low interest rates pending appeal encouraged the filing of appeals to courts of appeal without regard to merit. Eight years before, the insurance companies had gotten passed into law a reduced interest rate on tort claims (claims such as personal injury, wrongful death, automobile collision, premises liability, etc.) The insurance companies got the rate on tort judgments against them cut from 12% to two points above treasury bills or 2%! Aside from the tort claims that the insurance companies had targeted, the interest rate on most other judgments remained 12% in Washington State.

The idea of the 12% rate in the past had been to encourage liable parties to pay their judgments! What sense did it make for the negligent party to have a reduced interest rate that would run while it appealed first to the Washington State Court of Appeals and then to the Washington State Supreme Court? It was a windfall for the guilty. Keep in mind, if the appeal has merit and the judgment is reversed, then the insurance company doesn’t have to pay any interest – after all, in such a case, the judgment, together with interest upon it, had been set aside! The only one who benefited from the low interest rate were insurance companies representing wrongdoers who had lost at trial, lost on appeal, and lost on any further appeal. Those were the parties that would benefit on a low rate on judgments.

Imagine this situation: you or a family member are seriously injured, struggling with unemployment, struggling to pay medical bills and get the care you need. The insurance company, in the meantime, is dragging out the process. While the injured person and his or her family may be forced to borrow from family members or use credit at exorbitant interest to survive, insurers were enjoying low interest rates of 2%, while they invested the money they should have paid out to the injured party and profited by getting investment returns at much higher percentages. The innocent, injured person (who had won at trial (!)) was made into the unwilling banker of the insurance company! In political-speak, I called this: “Balancing their books on the backs of quadriplegics!”
I knew this was wrong.

It was an open secret that insurance companies couldn’t “afford” not to file an appeal. The judgment against them would be running at 2% interest while they were investing in, say, mortgages paying 5% or more. Why would they pay? More than that, they would be able to negotiate discounts on what they owed by the threat of dragging things out. Outrageous!

The bill I prime sponsored, initially denominated the “Appellate Congestion Reduction Act,” was signed into law in 2010 (SB 6764) and raised such rates to two points over prime (about 5.25%). Rational economic actors and professional litigants, insurance companies among them, are highly sensitive to the incentives/disincentives built into the architecture of the justice system. But now, at least they have one less way they can profit by delay and frivolous appeals.

What is a deposition?
In most cases, a deposition is a legal proceeding outside of the courthouse in which testimony is taken. Testimony in this legal proceeding is under oath, just as though you were testifying in court. That means you are subject to the penalties of perjury – unlike normal everyday conversations. Although there is no judge present, many judges will make themselves available by phone on short notice to address evidentiary or procedural matters. Usually, the deposition will be taken in the office of one of the attorneys in the case. The official court reporter will take down all that is said. Without a court reporter or sworn testimony, it is not a deposition.

How should I prepare for a deposition?
Review any documents that may be relevant. Get a good night’s sleep. Make yourself available for a pre-deposition meeting in the days or weeks before to prepare yourself. Dress in a professional attire, but not so overdressed that you are uncomfortable. Review your subpoena with an attorney who represents you.

What general tips should be kept in mind?

1. Tell the truth. Not telling the truth can seriously damage or destroy your case. It can lead to prosecution for perjury. Be absolutely truthful and true to yourself. Use the “give and take” technique: admit as much of the question as you can, then point out the areas that you cannot honestly answer because you may not know. If you realize that you may have made a mistake in your testimony, ask to take a break and let your attorney know before the deposition ends. Your attorney will make sure you have an opportunity to clear up the mistake.

2. Know what you know and what you don’t. Just because you are under oath does not mean that you suddenly know things that you did not know before or that you are obligated to answer questions outside of your personal knowledge. If you don’t know something, simply say you don’t know. Do not feel that because you cannot honestly answer a question that you are somehow going to be thought of as foolish or stupid. Most people do not know as much as they think they know. There are many reasons why you may not know something. It may never have been something that you were attentive to – or may have been something that you attended to and have since forgotten. It may be something you never knew or simply can’t bring to mind. Testifying about things you don’t know will not make you look more knowledgeable. In fact, it will undermine your testimony about the things you do know and damage your credibility. A person who acts like a “know-it-all” is not necessarily more credible; such a person may simply be perceived as someone who doesn’t have enough confidence to say “I don’t know.” A person who tries to answer everything, including things they don’t know, is like a baseball outfielder who tries to catch every ball and field every play. Know your position. Let other witnesses answer questions in their areas of knowledge. Do not guess. Do not be a “know-it-all.”

3. Try to stay in your “safe harbor.” A safe harbor is the area where you have privileged access to knowledge, sensation and memory. If someone asks you whether you have a headache or not and you say that you do, it would seem weird and absurd for someone to contradict you and say, “You don’t have a headache.” The reason: you are in your “safe harbor,” a place of privileged access where you alone can go. You alone know your present sense impressions, level of pain, personal history, and things that you perceived and your memory of them. If you are testifying as to what you recall, no one can disagree with your recollection. You may remember incorrectly or forget things, but your recollection is known to you alone. When testifying about things in the past, you are always testifying “to the best of your recollection.”

4. Try to know how well you know something and make distinctions where appropriate. There is a whole spectrum of certainty. I sometimes call this the seven levels of certitude, ranging from absolute certainty to complete ignorance.

Consider the following:

I am absolutely certain. There is no doubt.

I am quite certain or almost positive

I believe so.

I think that is probably so.

I think it likely, but cannot be sure.

I cannot be sure.

I simply do not know.

There are other levels, of course, but you can readily see that answers need not be “Yes” or “No.” Some questions simply cannot be honestly answered “Yes” or “No.” There are an equal number of levels of ignorance ranging from having once known something, but having it slip your mind, to having forgotten, to having never known. [Generally, I don’t know = I have never known, while I don’t remember = I probably did know at one time, but do not recall right now.] Do not be afraid to answer a question with “Yes” or “No” if you can do so accurately. But if there is doubt, then that just shows you are a thoughtful person who knows what you know – and gives you greater credibility when you are positive about something.

5. Timing. Take your time, think about the answers before giving them. Let the questioning attorney finish the question – pause with a breath – think – then speak. Do not confuse the deposition with a conversation, just because both involve speaking. Think of a deposition question as an e-mail which you must receive, open, read, think about, draft and revise a response, and then press “SEND.” When you press “SEND” is when you START to answer in the deposition. Do not think out loud. No points are given for answering quickly. In fact, answering quickly may simply leave more time for you to be asked more questions. Control over the timing is a real confidence-builder for you as a witness and has the added benefit of giving your attorney time to object. If your attorney does object, wait until you are instructed to proceed with your answer. Some objections may lead to an instruction for you not to answer or may lead to the question being reformulated. Wait until you know what you are supposed to answer. If this timing leads to you “losing” your train of thought, simply ask for the question to be asked again, do not keep talking in the hope that the question will “come back” to you.

6. Listen to the questions and only answer what is being asked. Be in the moment. Do not anticipate the next question or worry about how the answer might look. That will be confusing and lead to you acting defensive or “cagey.” Just look at the question before you and answer it plainly and honestly. It is not your job to argue with counsel or to make all facts in the case point in one direction. The jury will sort out the inferences. As a witness, your job is to answer forthrightly, without ulterior motive or guile. If you are asked a question, for instance “What did you have for breakfast?” answer that question. Do not comment on what you usually have, whether the breakfast was to your liking, who you ate with, where you ate, what your diet is or should be, or any one of a myriad of questions that are “related” in your mind. The answer: “Two eggs.” Asked where you live, means to give your address, not to describe your residence, how long you lived there, who else lives there, how you like living there, where you lived before, or whether you are planning to move away in the near future. Think of answering as though you were playing “Twenty Questions.” Be truthful, but do not expand upon your response. As a corollary of the above rule: Once you are finished with answering a question, if the answer is complete and truthful, remain quiet and do not expand or embellish it.

7. Be comfortable with silence. Silence is your friend. Silence means that you can remain in a posture of relaxed attentiveness. There is nothing for you to do. You should not feel obligated to “break the ice” or “fill in the silence” with additional facts. Many a case have been damaged by a witness who, uncomfortable with silence, added more testimony that had not even been asked.

8. Do not try to answer a question you do not understand or have forgotten. It often occurs that a question is unclear and hard to understand. A lawyer may have stopped, rephrased, corrected, and restarted a question, only to leave the witness unclear what question is being asked or even how many are being asked. Only answer one question at a time. If the question is unclear or is “compound” or “complex” such that you are not sure if you are answering one or more questions, STOP. Clarify the question. Make sure that you understand the time frame and subject matter of the question. Do not be too embarrassed to simply say: “I’m sorry, I didn’t follow your question” or even “I was trying to listen to your question carefully, but I’m afraid I’ve forgotten what it is. Would you be kind enough to restate it for me?” Or, even, “Can you rephrase that with different words? I’m getting mixed up.” If you do not understand a question, simply say so. “I’m sorry, I’m not understanding the question.”

9. Do not “close the door” on yourself. If you are asked whether “that is all that happened” or whether “you have told us everything you know,” do not agree with a simple “Yes.” Instead, have the humility to allow for the possibility that you may have overlooked something or forgotten something. “Have you listed all the symptoms/problems/conversations you had?” Say: “I have answered the questions you have put to me as best as I can to the best of my recollection and belief.” Or, say this: “We have been in this deposition for several hours now, so all I can say is that as I am sitting here now, I cannot recall anything to add to my previous answers.” Or more simply: “That’s all I can think of at the moment, but I can’t be positive I haven’t overlooked something.” All of these answers are preferable to simply saying, with finality: “That’s it.”

10. Maintain the correct attitude and demeanor. Be polite, but not servile. Do not argue with the questioner. Disregard the attitude of the questioning attorney. Think of it as “information” presented in verbal form. Breathe. Do not try to answer quickly just because the questioner asks the question quickly. Do not raise your voice just because the questioner raises his or her voice. Do not “rise to the bait.” Do not be sensitive to tone or non-questions or respond to remarks that are not questions. Do not engage in banter or joking. Do not use sarcasm as this cannot be well understood once transcribed and because it is often based on using tone to say the opposite of the words, it can be very damaging to your case. Be self-contained. Do not use obscenity or say anything that could be construed as derogatory or as a discriminatory remark or ethnic slur. Listen to the questions in a respectful manner. Wait until the question has been completed and then answer in a even-handed, thoughtful manner.

Concluding Thoughts. Make sure you have allowed enough time for your deposition. If you can, clear your calendar for the period of time required to complete your testimony. You are welcome to confer with your counsel at any time – so long as there is not a question pending. You are free to ask to take a break. If you find yourself needing water or a restroom break, speak up immediately. You are not required to undergo any discomfort. It is best that your testimony not be hurried or distracted by discomfort. If you feel ill, immediately let it be known and every accommodation will be afforded you.

Keep the above thoughts in mind and you will find your deposition to be a straightforward and comfortable experience.

As a witness, whether in your own case or that of another, your truthful testimony is vital to the system of justice. Your deposition testimony under subpoena – or otherwise – is a civic duty. You should take pride in the quality of your testimony and your ability to speak the truth to the best of your ability.

© 2013 LAW OFFICES OF RANDOLPH I. GORDON PLLC

For decades, the American public has been bombarded with messages, the subtext of which is this: “Don’t trust juries!” Whenever I hear such consistent messaging, I always ask myself: “Who benefits from us believing this?” The answer: the insurance industry.

The insurance industry cannot control individual jurors. They can influence elections, fund candidates for the legislature, and buy TV time. But they can’t stop jurors from doing their job. This is why Thomas Jefferson wrote: “I consider trial by jury as the only anchor yet devised by man,by which a government can be held to the principles of its constitution.” Individual Americans doing their duty is the answer to tyranny and is the great equalizer. How else could individuals like you and I stand toe-to-toe with insurance companies whose assets dwarf those of many nations?

Juries consist of ourselves and our neighbors. We know the score. As jurors, we take our work seriously and perform this important work as a public duty. Jurors are paid a mere token amount for their work. The “runaway” juries that everyone talks about are largely a myth. I know this because, aside from the occasional outlier, juries in Washington State are thoughtful and conservative, following the instructions given them by the court. As the story goes, a headline entitled: “Dog Bites Man” is not going to get much ink. A freakish episode in which “Man Bites Dog” will! The rare and outlandish catch our attention: airplane crashes, serial killers, and runaway juries. I have been trying cases for thirty-five years and I have yet to see a jury whose verdict was not supported by the evidence.

When I discuss the common misperception that juries are prone to excess with my students and clients, many start off citing punitive damages. Here’s the truth: Not only does Washington State not have any punitive damages in tort or negligence cases, such punitive damages have been disfavored in Washington since we were a Territory. Moreover, the United States Supreme Court in a series of recent decisions has cut way back on punitive damages, favoring only low single digit multiples of the actual damages. In a recent study, we found that it was insurance defense counsel that was responsible for requesting a jury trial in 90% of medical malpractice cases filed in King County, Washington. If juries were so prone to high verdicts, the insurance companies would not be favoring jury trials over judge trials.

Insurance companies know that juries are conservative and not prone to excess. By raising a great hue and cry about “runaway” juries, they make us doubt ourselves and help to keep juries from ever daring to give generous awards. At the same time as insurance companies were complaining about a “suit happy” society, the federal Bureau of Court Statistics documented a 79% drop in federal court tort trials (from 1985 to 2002). And, here’s a news flash from the non-partisan Bureau of Justice that the insurance companies don’t want you to know: Plaintiffs won more often in tort trials to the bench (judge) (54%) than in tort trials to the jury (46%). Plaintiffs did better before judges than juries!

Jurors are careful to make sure that justice is done. The plaintiffs are forced to seek justice in court because they could not get fair treatment at the hands of the insurance company responsible – often their own insurance company to whom they have paid premiums for years. To file suit is definitely not a decision to be undertaken lightly; suing an insurance company means taking on a sophisticated, professional litigant, who can afford to play the odds. Individuals such as you and I can hardly afford to gamble. This is the only case we have!

As for lawyers, the only lawyers that you are asked to distrust are plaintiffs’ lawyers, those who represent people like yourself, who have been hurt as a result of the fault of another. We are not asked to distrust corporate lawyers, government lawyers, or insurance company lawyers. They collect fees on an hourly basis or are on salary. Plaintiffs’ counsel, by contrast are often paid on a contingent or percentage of the settlement or verdict. Contingent fees mean that the lawyer doesn’t get paid unless you do. They also allow someone who has been injured, can’t work, and who faces huge medical bills, to afford legal representation they would otherwise never be able to afford. So, you tell me, do you think a lawyer wants to take a frivolous case to a jury, knowing he is opposed by the resources of an insurance company and that if he loses, he gets nothing? In my experience, there is no downside to a frivolous defense made by the insurance company. They can delay, deny and defend to the bitter end, all the while collecting interest on money that should go to victims. So, I ask you, who is more likely to put forward a frivolous argument, an insurance company lawyer who gets paid by the hour, win or lose, or a plaintiffs’ lawyer who, if he makes a frivolous argument, is not only going to get nothing from the jury for his time, but faces court costs and possibly fines if the court finds the case to have been frivolous?

Basic Information. Every Washington lawyer is required to be a member of the Washington State Bar Association. The State Bar regulates lawyer discipline and has full-time staff in the Office of Disciplinary Counsel who assure compliance with the Rules of Professional Responsibility. Lawyer discipline is ultimately governed by the nine justices elected by the public to serve on our State’s highest court, the Washington State Supreme Court. I start off with this information because the Washington State Bar Association has a directory of all Washington lawyers and indicates whether they are in good standing and their disciplinary history. You can find this at www.wsba.org by following the Resources for the Public tab, which will take you to “Find a Lawyer.” You can put in the name of any lawyer and find out if they are in good standing and whether they have been disciplined in the past. You will notice that the site refers to “public” disciplinary history. That is because if a complaint was filed and was determined to be without merit, it will not appear, which is fair since it was not supported by the evidence and the burden of proof was not met. This means that any disciplinary history you find has already been determined to exist and has already been “tested” by the disciplinary process and found to have been established by a clear preponderance of the evidence – or agreed to by the lawyer. As a starting point, it is important to know that the lawyer you are considering to represent you is in good standing and licensed to practice law. Although having had a disciplinary history is not necessarily fatal to your consideration of a lawyer, it is a good thing to know, just as you would probably want to know if your surgeon had been found liable for malpractice, for instance. Every attorney has a “Bar Number” and can be located. If someone you are speaking with claims to be a lawyer but doesn’t have a Bar Number or is not able to be located in the Washington State Bar Association directory, then Look Out!

The Numbers. Of the estimated 6,897.012 people (2012 Estimate) who live in Washington State, roughly 30,000 are members of the Washington State Bar. Some of the members of the State Bar, to which all Washington lawyers must belong, are serving as judges, some are retired, some are brand new. As a rule of thumb, you can figure that lawyers are just under half of one percent of the general population or about 1 in 200 people. This means that you may or may not know a lawyer personally or whether the lawyer you know is the best choice for you. The choice of lawyer will involve your considering a number of factors.

The Factors to Consider. There are many factors that you will want to consider. They basically include: (1) Personal Relationship with the Lawyer (Trust); (2) Experience; (3) Expertise in the Type of Case You Have; (4) Credentials: Educational Background and Training, Awards, Recognition, and Publications; (5) Disciplinary History and Status of License; (6) Personal Style; (7) Cost.

(1) Personal Relationship. Although on first blush you may think that you would prefer a lawyer to be someone you already know and trust, perhaps a family member, you may wish to think about this further. Representation can sometimes result in revelation of private matters that could prove embarrassing. Since communications to a lawyer are subject to confidentiality, you should be able to trust that these matters are kept to the lawyer. If the lawyer is a close family member, however, such sharing of intimate details can be confusing to family dynamics and may result in the blurring or compromise of professional boundaries and family or friendship boundaries. It might be better to keep your legal matters separate, just as you might not wish to see a psychologist, counsellor, or psychiatrist who was a family member. Having a family member represent you can confuse issues surrounding professional accountability. If, for example, a mistake is made, this may lead to hard feelings and compromise family relationships or strain friendships in ways that would not have occurred if you asked your friend or family member to help you find a lawyer – rather than have them undertake the representation by themselves. Having a family member assist you in working with a qualified, independent lawyer, may be the best of both world. I have often found it to be very helpful to have a family member with legal training help explain some of the decisions and issues in the case. This can also be a challenge for you and the lawyers, depending upon the relationship between the family member-lawyer and the independent lawyer, so it makes sense to explore the anticipated dynamics of that relationship – the earlier the better. In other words, everyone needs to know and respect how decisions are going to be made to avoid conflict.

(2) Experience. It is a relatively simple matter to determine the number of years a lawyer has been practicing. The Washington State Bar Lawyer Directory will provide you with the date of admission to the Washington State Bar. Of course, even a senior attorney, with valuable experience, may be a recent admittee to Washington State. It is useful to know – or to ask – whether the lawyer has trial experience in the type of case for which you are seeking representation. How many cases like yours has the lawyer handled? How were they resolved?

(3) Expertise in a Case Like Yours. Experience is not only the number of years in practice, but really should be analyzed in terms of relevant experience or expertise in cases like yours. Even a lawyer with many years of legal practice may not have experience handling cases like yours. A young, dedicated and talented lawyer may do better for you than an experienced attorney making his first foray into a new area. In the area of personal injury representation, it is also important to consider whether the lawyer’s experience comes from representing plaintiffs (injured people) or defendants (insurance companies and their insureds).

(4) Credentials. Some websites, such as www.avvo.com, provide a description of the lawyer’s education, training, awards and publications. Such factors are not dispositive on the issue of whether the lawyer is the right one for you, but they are part of the picture. If a lawyer went to a prestigious school (Harvard, Yale, Stanford, Michigan, and others you may have heard of) this, at least, tells you the lawyer was a good student. Is this enough to be a good lawyer, good person, or good advocate for you? No. Many fine trial lawyers did not go to big-name schools; but, many did. I, myself, graduated from Harvard Law School, but I would never contend that this was the attribute that should be valued above all others. Since 1999, I have been teaching as an Adjunct Professor of Law at Seattle University School of Law and I can tell you that many fine local lawyers were former students from Seattle University. Awards, honors, recognition (and, yes, teaching experience) go a long way towards creating that ineffable trait known as “reputation.” Reputation is important in many ways, including whether, for instance, an insurance company in a personal injury case is going to regard your lawyer as one who “always settles” or one who “takes cases to trial.” These considerations are actually part of a computerized program (Allstate, for instance, uses a program called “Colossus”) that values your case based upon your attorney’s track record. If you are, yourself, a person who values educational accomplishment, then the fact that your lawyer has done well in this arena may be a positive indication that you will be able to respect and value your lawyer’s advice with greater comfort. So, to some extent, you must yourself determine how important these factors are to you. Credential provide a valuable objective measure of your lawyer’s past achievements, but they do not always reflect how your lawyer will perform for you in your case today. You might say that reputation is like the light from a distant star, telling you how the lawyer performed in the past (a very important indicator of future performance), but not necessarily telling you how the lawyer performs today.

(5) Disciplinary History and Status of License. As we have already noted, the State Bar website at www.wsba.org will tell you whether a lawyer has been disciplined or whether a lawyer is currently in good standing. A lawyer who is suspended from the practice is not permitted to represent others or be paid for services. This is a basic inquiry and you should make sure that a person who holds themselves out as being an attorney can show you their Bar Number and prove that they are, indeed, licensed to practice. This is free and there is simply no reason for any consumer of legal services to be deceived as to this basic prerequisite for any practicing lawyer whom they are considering retaining for representation.

(6) Personal Style. When you are deciding to hire one lawyer over another, you should not be afraid of trusting your own “gut” instinct. Is the style of the lawyer one that works for you, that you enjoy, or is it off-putting, officious, pompous, or condescending. You have a right to have a lawyer who is willing to spend time with you to explain the law and your case. You are the client, after all, and the lawyer’s job is to represent you in a way that works for you. Taken together with some of the objective factors above, personal style may be a great indicator of the degree to which you will be satisfied by your representation.

(7) Cost. In legal services, like most other things (my daughters say “hair products” fall in this category), you do, indeed, get what you pay for. In personal injury cases, where a contingent fee is available, legal fees may be virtually identical between firms. The Rules of Professional Conduct make it clear that a client must remain “ultimately responsible” for the costs of litigation. So, beware of any lawyer who claims that you will have no obligation for costs at the outset: this is not proper from a professional standards viewpoint. Lawyers may advance costs (and many do and charge you interest until the case settles), but those costs ultimately will come out of your settlement. This subheading deserves its own blog entry. Lawyers should, and in the case of contingent fees (fees based on a percentage of the recovery obtained) are required to have, a written fee agreement. You should read this contract and you should never be afraid to ask how the fees and costs are handled. Once again, the Washington State Bar Association has set out how fees and costs are to be handled in the Rules of Professional Responsibility and in written Formal and Informal Ethics Opinions. Hiring a lawyer is entering into a business relationship and you should always consider professional qualities other than price. You should consider hiring a lawyer the same way that you would consider hiring a contractor: is it quality of work or only the lowest bid? It is nearly always a mixture of those factors, sometimes called “the lowest responsible bid.”

Finding a Lawyer. Now that you know what you are looking for, you can go about finding a lawyer. The obvious methods are: word-of-mouth, past experience, advertising, and the internet. I would like to suggest that all of these have a place. Recommendations from friends and colleagues who have had a positive experience are important. Recommendations from friends and colleagues referring you to their family members or friends who are lawyers may be less valuable. Your own past experience with a lawyer is likely (for good or ill) to inform your decision-making. At least, you have some experience and, if it was positive, this is definitely valuable intelligence. Advertising, however, is all too often self-serving and tells you nothing about the lawyer who will be representing you. Some large advertisers simply gather in clients and then refer them to other lawyers who have paid for the advertising or paid to receive referrals in a certain area of town. Such advertising does not assure you of a good “fit.” Many large firms bring you in with the impressive credentials of a senior lawyer, just to have you learn later that your case is really being handled by younger associates. This is not necessarily bad for your case, but it can come as an unwelcome discovery if you are expecting the lawyer you meet to be the lawyer who represents you. It is always fair to ask directly and clearly about who your lawyer will be and how the work is handled. If you go to a deposition, who will be your lawyer? If you go to trial? Who negotiates your case? Who goes with you to your defense medical examinations?

Sites such as www.avvo.com attempt to give lawyers ratings based upon credentials, publications, speaking engagements, awards, and client recommendations. This can be a valuable resource. In King County, the Lawyer Referral Service of the King County Bar Association [http://www.kcba.org/lrs/ ] can help you find lawyers with expertise in specific cases.

Your case is important. Finding the right lawyer for you takes some work, but really pays off in every sense of the word. Your satisfaction with the outcome of your case will, in large part, depend on the expertise, experience, credentials, and personal relationship you have with your lawyer. A lawyer who inspires confidence, who works hard, who is easy to reach, who explains things well and as often as needed, who is patient, well-qualified, is also likely to be effective and efficient. This will truly improve the quality of your experience.

It is hard enough to be in a spot where legal representation is needed. It makes the experience so much better when you find the right lawyer for you and your case that it is well worth taking the time to do it right. Do your research. Listen to others. Trust your own feelings. Over the years, I have spoken to many clients who were dissatisfied with their legal representation and remarked: “I felt there was something I was uncomfortable with, but I didn’t feel comfortable making an issue of it.” If only they had listened to what they felt! Remember, litigation and legal representation is stressful. Having the right lawyer can make it much, much easier to get through it. I hope these remarks help you out.

Determining when you need a lawyer is easier than it sounds. The short answer is: call a lawyer and find out! So, you must be thinking now: “What a racket!” I want to know if I need a lawyer and he says: “Call a lawyer!” It’s not a racket, however, when you realize that many lawyers will speak to you about your case “free of charge” and “without obligation.” They can provide you information that enables you to determine if you need a lawyer and it usually won’t cost you a cent. Failing to call a lawyer, however, could cost you your case.

Injured individuals are well advised to seek legal counsel – if not for representation, at least to avoid some of the pitfalls that can cost them their rights. Filing claims against municipalities or governmental entities usually requires filing a claim before you are even permitted to file a legal action. This is a trap for the unwary. There is also the issue of the statutes of limitation that can bar you from filing a claim after the passage of a certain amount of time. This is serious and can cost you your rights.

Often an individual, particularly one involved in a personal injury claim, will be generally aware of the fact that a statute of limitations may apply that will forever bar them receiving any recovery unless a case is filed by a certain deadline. Dealing with that sort of issue while struggling to heal, pay medical bills, get back to work, is a lot to handle. Yet, time may not be your friend. While the passage of time may result in healing that is beneficial to you, if you wait too long the time period during which you are permitted to seek compensation may be running out.

Many folks do not appreciate that there are different statutes of limitation depending on the nature of the claim – and that you can have different limitation periods in the same case with respect to different claims, even though they all arise from the same circumstances. Statutes of limitations are such an important and potentially dangerous pitfall, that even talking about it in general terms can cause problems. Let me give you an example: if by reading this blog, you think your limitations period is up and don’t file a claim, but there are some factors that would have given you additional time, then you may lose your rights unnecessarily. Similarly, if I tell you the statute of limitations is longer than it really is, you may relax and then it may be too late. So, let me be absolutely clear: do not rely on this blog or the internet to answer your questions. Speak to a lawyer who can advise you. Laws change. Factors are individual. When it comes to your rights, you don’t want to get this wrong!

Not only do different claims have different limitations periods, but different jurisdictions, federal laws, state laws, and the laws of different state, differ. In some jurisdictions, such as Washington State, a personal injury claimant GENERALLY has three years from the date of the injury-producing event to file in cases of negligence. I use the term “generally” to give you warning that this period can be shorter OR longer depending on the claim. For instance, a claim arising from assault, may be shorter than three years.

Injuries arising from defective products give a good example of some of the potential complications. If you think it is simply a three year period from when you get hurt, you might be mistaken!

If the injury arises from a defective product, there is a special statute, the Washington Products Liability Act, RCW 7.72.060, which provides: “Subject to the applicable provisions of chapter 4.16 RCW pertaining to the tolling and extension of any statute of limitation, no claim under this chapter may be brought more than three years from the time the claimant discovered or in the exercise of due diligence should have discovered the harm and its cause.” So, claims for defective products are affected by two major factors: (1) the statute involves “discovery” of certain facts about the claim; (2) the statute can be affected by the provisions of RCW 4.16, which we will touch on in a little while, which can “toll” or “stop” the limitation period from running. Factors can affect the time period. So, once again, you may wish to speak to an attorney, just to make sure you don’t lose your rights by delay.

Statutes of limitation change. For example, in California, the period for personal injury claims arising from negligence WAS only one year, but has been extended to two years, with a “discovery” rule. Let’s say a person is injured on vacation, which happens, unfortunately, more than we would wish. You return home and begin to experience problems. What do you do? Are you governed by the law where you live – or where you were hurt. This could make a huge difference. (For safety’s sake, you would have to consider both jurisdictions and see which is the shorter statute of limitations.) You would generally, however, be bound by the law in the jurisdiction where the negligent act occurred. So, a Washington citizen hurt in California should be advised that the California statute may be shorter than that in Washington.

Since, in many cases, the claim will have to be brought in the jurisdiction where the injury was sustained, this could mean dealing with an insurance adjuster by telephone or hiring an attorney who practices in the jurisdiction where you were hurt. But, again, you would need to know the limitations period that applies for the place where you were hurt. Not knowing this could cost you your claim! Also, if you are dealing with an insurance adjuster, they may not be in the State where you were injured. Whatever you do, you cannot rely on the insurance company (who may be representing the party who hurt you) to inform you of the deadlines. Although many adjusters are honorable people, others may not mind it one bit if they negotiate with you to the very brink of the statute of limitations. Then, even if they warn you (and they should if you are unrepresented), it may be hard to get a lawyer out-of-town on short notice.

The simplest solution for most of these problems is to call a lawyer. Most reputable lawyers spend a lot of their time speaking to prospective clients and letting them know whether they need a lawyer – and whether they need a lawyer that is out-of-state. Lawyers are admitted to practice law on a state by state basis, although some states give reciprocal privileges to adjoining states and some lawyers have been admitted to the bar of several states. You may, for example, be able to find a Washington lawyer who is also admitted to Oregon, or vice versa. A lawyer who will not spare the time to speak to you about your case may not be the best lawyer for you – although, to be fair, the lawyer may happen to be in the middle of a jury trial and be unavailable for a while.

The Statutes of Limitation are not a secret. They are in statutes, after all. Nonetheless, because different statutes have different limitation periods, you may need some legal advice to figure out what your claims are and how long you have to pursue them.

Now, I promised I would get back to some of the factors that can affect the limitations period in your case. In Washington State, for instance, RCW 4.16 contains different limitation periods for, say, ten years, three years, two years, one year, all depending on the type of case. An action for libel, slander, assault, assault and battery, or false imprisonment, has a two year statute of limitations. General negligence would usually be three years. The time period allowed under the statute of limitations can be “tolled” (stopped) by a number of factors such as military service, personal disability, or even if the person against whom you have the action is concealing himself or herself.

So, you may wish to find a lawyer to help you determine when you need a lawyer! It’s no racket. It’s just one way that lawyers give back to the community. It’s important to keep in mind that lawyers are glad to provide answers because it may mean that you will come back to them if you do have a legal case worth pursuing. That’s okay. If you’re in that unfortunate situation, you will want a lawyer who will give you the straight scoop and with whom you have a relationship of trust. Naturally, if a lawyer is not interested in taking your case, that gives you information too! But, what it tells you is far from clear. It could mean that your case is not worth enough to justify the work it would take for that particular lawyer to handle it. It could mean the lawyer doesn’t do that kind of case. It could mean that the lawyer is overloaded with work for existing clients. Don’t be shy about asking the obvious question: “Do you think my case is worth pursuing?” Or, perhaps, “Do you see problems with my case that I should take into account?” If you are not interested in the case, can you refer me to another lawyer? Or, “What do you think the likely limitations period is on this case?

Next time, how to find a lawyer.