Category Archives

Are Contractual Mediation Condition Precedent Provisions Enforceable?

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 ...

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 ...

Not-So-Significant Others: When Does the Presence of a Third Party Waive the Attorney-Client Privilege?

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 ...

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 ...

Privilege and the Public Records Act

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 ...

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 ...

Upjohn In Washington: Does The Attorney-Client Privilege Protect Communications Between Government Counsel And Lower-Level Government Employees?

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 ...

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 ...

Communications between Counsel and Lower-Level Employees: Upjohn in Washington

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 ...

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 ...

Washington State Supreme Court Reinforces Rights of Policyholders in Duty-to-Defend Cases

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 ...

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, ...

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 ...

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 ...

Apples to Oranges: No More Comparing the Comparables When Deciding Fee Awards in Trial De Novo After Mandatory Arbitration

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]  ...

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 ...

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 ...

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 ...

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? ...

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 ...