It is important to understand the difference between a contractual provision requiring mediation or arbitration and one that makes mediation a condition precedent to arbitration or the filing of a lawsuit. Here is a typical arbitration clause: Any controversy or claim arising out of or relating to this contract, or the breach thereof, shall be settled by arbitration administered by the American Arbitration Association under its Construction Industry Arbitration Rules, and judgment on the award rendered by the arbitrator(s) may be ...


Suppose you represent the defendant in a lawsuit, and he wants his long-time significant other to participate in communications with you about legal strategy—discussions that would be protected by the attorney-client privilege if they were between you and him alone. Would such participation vitiate the privilege? RCW 5.60.060(2)(a) provides that “[a]n attorney or counselor shall not, without the consent of his or her client, be examined as to any communication made by the client to him or her, or his ...


To what extent does the attorney-client privilege[1] exempt from disclosure under Washington’s Public Records Act[2] billing statements submitted to government agencies by outside litigation counsel? The privilege protects “communications incident to the giving and receiving of legal advice, and incident to the representation of the client’s legal interests.”[3] This includes attorney-client communications about relevant facts. As the Washington Supreme Court has noted, “‘[a] fact is one thing and a communication concerning that fact ...


PART 2 In an earlier post, I explained that in Washington the attorney-client privilege held by corporations protects communications between corporate counsel and lower-level corporate employees, with some exceptions.  Does this also rule protect communications between counsel for government agencies and lower-level government employees?  Although there does not appear to be a published Washington case on point, the answer is very likely yes. Washington law is clear that the attorney-client privilege, codified at RCW 5.60.060(2), protects communications between the legal advisors ...


PART 1 In Upjohn Co. v. United States, the United States Supreme Court held that the attorney-client privilege protected communications between counsel for Upjohn – who were investigating possible illegal activities by the company – and lower-level company employees.[1]  The Supreme Court rejected the Sixth Circuit Court of Appeals’ holding that under the so-called “control group” test, the privilege only covered communications between counsel and “officers and agents … responsible for directing Upjohn’s actions in response to legal advice.”


In its recent decision in Expedia, Inc. v. Steadfast Ins. Co.,[1] the Washington State Supreme Court made several rulings enhancing the rights of liability insurance policyholders in this State.  First, the Court reaffirmed that in duty-to-defend cases the “eight corners” of the insurance policy and the complaint filed in the underlying litigation generally determine whether a duty to defend is triggered.[2]  Second, the Court confirmed that when such a duty is triggered the insurance carrier must ...


Start Kidding Yourself?

Is a high capacity for self-deception a net positive or net negative trait for a litigator to have?  As noted in many recent articles in the mainstream media, studies show that self-deception can be a powerful tool for persuading (or fooling) others, and persuading others is a big part of what we do.  There’s no doubt that many successful people are self-deceptive.  As William von Hippel and Robert Trivers explained in a 2011 article, self-deception can “help ...


Civil lawsuits brought in superior court seeking money damages of $50,000 or less are generally subject to mandatory arbitration.[1]  The legislature implemented this requirement in an effort to reduce court congestion and speed up the resolution of civil cases.[2] After the arbitrator issues an award, any party may appeal to the superior court and request a trial de novo.[3]  But consistent with the overall purpose of the mandatory arbitration statutes and rules, RCW 7.06.060(1) provides ...


Get Me Out of This

Warren Zevon – underappreciated musical genius – died a little over ten years ago on September 7, 2003. I’ve been a Zevon fan for years. Recently, in the midst of a nostalgic romp through his catalog, I was musing about “Lawyers, Guns and Money,” the closing track from his classic 1978 album Excitable Boy. The song ends: I'm hiding in Honduras I'm a desperate man Send lawyers, guns and money The s**t has hit the fan Here’s the origin story, from the man ...


Gadgets, Posture & Power

Litigators are expected to be assertive.  Not necessarily aggressive or obnoxious, but assertive.  This is as true for easygoing “Type Bs” as it is for high-strung “Type As.”  So what lessons are litigators to draw from this Harvard University study showing that men and women using relatively larger electronic gadgets behave more assertively than folks using relatively smaller gadgets? Well, simply ditching your iPhone 4S for a “phablet” (an execrable term) like the new Galaxy Mega won’t do much ...