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FROM THE DIRECTOR: AUGUST 2023

All the World’s A Stage

By Barbara Engstrom, Executive Director

The other day when I was searching the KCLL catalog for something totally unrelated, the title Acting Skill for Lawyers popped up.  I envisioned advice on how to chew the scenery with “Law and Order” level aplomb, did a big eyeroll, returned to my research, and moved on.   Later in the week while giving a presentation on resources available for remote access through our Lexis Digital eBook subscription, I remarked that resources ranged from the full run of gold standard treatises like Corbin on Contracts to lots of “fun” titles such as… (naming the first title that popped into my head) Acting Skills for Lawyers. Dang it.  That title had infiltrated my psyche.

Hmmmm…what’s the literary equivalent of a musical earworm?  A bookworm?  I think that word’s taken but wouldn’t you know, the New York Times featured a whole discourse on whether a word can be the equivalent of an earworm.  In that case, the word was amygdala.[1]

Beware of Acting Natural

My interest peaked, I had to at least take a look at Acting Skills for Lawyers. Much to my delight the book was a quick read full of practical advice specifically geared to how attorneys present themselves in the professional arena (not just court). For example, in discussing stage presence the author notes:

Stage presence is the quality that allows us to hold a very public position in a relaxed manner. …For attorneys, the scrutiny is much more intense. Actors will have a director and the cameraman right in their face, but you will have everyone—the jury, witnesses, opposing council, your client, and your colleagues—staring you down and watching your every move. Stage presence allows us to remain ourselves under intense scrutiny from others.

The goal of stage presence is to be yourself—just a more relaxed, interesting, and focused you. Once you are free to be yourself, you are more relaxed and will carry less tension in your voice and body. Once the tension is gone, you are free to respond naturally to what is actually happening, using integrity and finely tuned reflexes.[2]

People are often advised to “act natural” but in a high-pressure professional setting, acting natural might mean breaking out into a sweat, stammering, stiffening up, or staring at the floor – all natural responses to stressful situations.   Just as athletes train for big competitions to prepare for whatever comes their way, training for stage presence allows attorneys to navigate unexpected twists and turns in a variety of professional settings.

Be Like (the Other) Mike

In this case, I’m not talking about Michael Jordan but rather Michael Phelps – the guy with 23 Olympic gold medals in swimming. I remember the discussions during the Beijing Olympics about whether Michael had a freakishly portioned body that gave him physical advantage over other swimmers. A study by Scientific American concluded that while Phelps has slightly longer arms, he’s well within the standard range for persons of his size.[3]  His dominance was bred of his outsized work ethic and willingness to train not only for things going right but to prepare for when things would inevitably go wrong.  Phelps and his coach focused on conditioning himself to push through and maintain perfect form like a mechanical geartrain even when at the breaking point.

Early in the Games, one of those things that could happen did happen. In the 200-meter butterfly, Phelps’s goggles leaked. They flooded with water until he couldn’t see the wall. He stayed calm, relied on his rhythm, and won pulling away, though with bloodshot eyes. “I was ready for my goggles to fill up with water,” he said later, gratefully.[4]

Phelps’s Beijing Olympics, with seventeen races over nine days, culminated in him winning eight gold medals — breaking Mark Spitz’s 1972 record. In his last individual race, with a fatigue-wracked body Phelps won by one-one hundredth of a second which his coach attributed to a conditioned response based on years of preparation.  Interestingly both Acting Skills for Lawyers and the Washington Post article on Michael Phelps both referenced a Soviet area study on optimal athletic conditioning. A central tenet of the study is that an athlete’s optimal readiness requires “harmonious unity” of physical, psychic, technical, and tactical skills.[5] Athletic grace under pressure and professional stage presence are not innate gifts that only the lucky few have.  They are skills that seem effortless but have been cultivated with hard work over time.

Tools of the Trade

The central thesis of Acting Skills for Lawyers is that stage presence is a major benefit for attorneys in all practice areas.  It is achievable by anyone, including introverts, but requires work.  Each of the chapters presents actors’ tools of the trade within the framework of legal practice.  The author discusses tips and tricks for a variety of basic acting skills with practical exercises for each tactic. For example, in the section on speaking styles she discusses how to hold an audience’s attention with techniques such as rate of speech, inflection, pauses, and volume.  In the chapter on your physical presence, she outlines how what you do with your body when talking to colleagues, opposing counsel, or juries can either enhance or undercut what you are saying.  She also gives practical tips on conducting depositions, being an effective improvisor, using storytelling to craft compelling narratives, preparing witnesses, and delivering closing arguments.   She even tells you how to take a great head shot – hint – the “eyes are the secret weapon.”

Why Acting for Lawyers?

As I was looking at articles discussing acting skills for attorneys the following quote from Michael DeBlis, a trial lawyer who is a graduate from a prestigious acting conservatory, struck me as an apt argument for why attorneys should consider enhancing their professional toolbox with acting skills.

The ability to perform at a peak level night in and night out is a trait that great actors and great lawyers possess, and one that I deeply admire. To me, having a technique provides me with the artistic freedom to stand in front of the jury and build something that bears my imprint just like an artist stands in front of a blank canvass and creates an original painting. The only difference is that my tools are not a canvas, palette, paints, and brushes. Instead, they are my words. Nevertheless, my words are used to paint images in the minds of the jury in the same way that an artist breaks the whiteness of the canvas with a stroke of the brush not worrying so much if it is what he’s really after but instead discovering the painting in the act of painting itself.

While “Acting for Lawyers” might sound like a theater genre, in reality it is designed to loosen up attorneys and prepare them for the practical uses of confident and effective communication in the courtroom, something that is severely lacking in courtrooms around the country today.[6]

Learn More at KCLL

I encourage you to check out Acting for Lawyers in our Lexis Digital eBook database.  Along that same vein, you may also be interested in the following titles:

  • Jonathan Shapiro, Lawyers, Liars, and the Art of Storytelling: Using Stories to Advocate, Influence, and Persuade
  • John S. Worden, From the Trenches: Strategies and Tips From 21 of the Nation’s Top Trial Lawyers
  • Frederic Block, Crimes and Punishments: Entering the Mind of a Sentencing Judge

If you would like help accessing these titles or any other titles in our collection, please contact us at services@kcll.org.  Information on becoming a subscriber with remote access to the Lexis Digital eBook collection and many other benefits can be found here. https://kcll.org/subscribe/

[1] See James Gorman, Ob-La-Di, Ob-La-Da, Amygdala: Word as Earworm, (Jan 11, 2005) https://www.nytimes.com/2005/01/11/health/obladi-oblada-amygdala-word-as-earworm.html

[2] See Laura Mathis, Acting Skills for Lawyers, pg 29-30 (ABA Publishing 2012)

[3] See Adam Hadhazy, What Makes Michael Phelps So Good?, Scientific American (August 18, 2008) https://www.scientificamerican.com/article/what-makes-michael-phelps-so-good1/

[4] See Sally Jenkins, How Michael Phelps Learned to Make the Right Calls, Washington Post (May 28, 2023) https://www.washingtonpost.com/sports/2023/05/28/sally-jenkins-book-excerpt-michael-phelps/

[5] See Leo Pavlovic Matveyev, Fundamentals of Sports Training (Progress Publishers Moscow, 1981)

[6] Michael DeBlis, Why Acting for Lawyers?, Medium (Oct 22, 2017) https://mjdeblis.medium.com/why-acting-for-lawyers-1d668dbc7369

 

ROSS’ REF Q’S – POSSESSED BY AN ADVERSE SPIRIT

WE GET A LOT OF REFERENCE QUESTIONS AT THE KING COUNTY LAW LIBRARY.
THE REFRAIN GOES THAT BECAUSE WE AREN’T PRACTICING ATTORNEYS, WE CAN’T OFFER LEGAL ADVICE—AS LIBRARIANS, WE CAN ONLY OFFER RESOURCES.
THAT SAID, SOME QUESTIONS ARE VERY INTERESTING & INSPIRE ME TO DO SOME RESEARCH OF MY OWN, COLLECTED HERE IN THIS COLUMN. DON’T CONSTRUE THIS AS LEGAL ADVICE!

****************************************************************************************************************************************

I like when the seams start to show. This is something I’ve long noticed in myself – as an example, in high school, I became very into finding demo tapes of my favorite songs. I loved how raw and revealing demo recordings can be. What might eventually be throbbing bubblegum euphoria begins as a kind of plinky trancey gumbo – and I think that the latter gives a deeper appreciation to the former. Sometimes it’s the case where the stripped-down nature of a demo provides an intimacy and immediacy that a studio version simply can’t surpass, but I also often subscribe to the “first thought best thought” school. Many a demo tape have eclipsed my love for the studio version. 

I just reopened my browser – where was I going with that? Is this an indie rock blog now? I think that paragraph was going to be a simpler and less hyperlinked statement about how I like when the seams show, artistically, that it gives you a deeper understanding of the source, and that would somehow sensically set up how I feel like the seams are starting to show in REALITY and that, in this way, I DON’T like the seams showing. Let’s pretend I made that leap, and it was done well – thanks.

Yes, it was some weeks ago that the seams started to show in this ghastly plane.

It was Wednesday the 12th of July. I overhead a coworker talking to a customer about adverse possession. In my 41 months at the law library, I had yet to encounter this concept before, but I caught the gist of the situation and later debriefed with my coworker.

The following day, I was working in the Kent library. Kent is typically staffed by one KCLL employee at a time – sometimes Kent is a ghost town, but that day, I felt like a bartender barely keeping up. A line had formed, and routine family law and civil procedure wisdom was being dispensed. Sealing – GR 15! Free forms – Family Law Facilitators! Probate packet – sold! But then…

Adverse possession reared its head again. The customer said that she had long ago built a fence beyond her lot line, onto the HOA subdivision’s park. A new neighbor discovered this fact and was causing a fuss. The customer said they knew the law, she had statutes written down somewhere, and was generally set on her course of action – she merely came into the library to get the form that would get the title to the parkland. I whipped out the WSBA Deskbook on Real Property and began explaining that it wasn’t so easy, that there’s not one form that accomplishes this. She again said that she knew this was simple and she just needed the form, that someone upstairs (Kent’s library is located in the basement of the RJC – thus, it is not uncommon to receive inscrutable commands from above, there) had said she could get the form from us. I encouraged her to go back up and have them (Who? Unclear.)  write down exactly what she needed, because I wasn’t certain such a form existed. She left and did not return.

[Have I talked about forms on this blog yet? What an intriguing courthouse concept. The state/county provides some required legal forms, mostly in the arena of family law. Probate? No. General civil lawsuits? No. These you must draft yourself (or buy from a trusted form packet purveyor). But even in family law cases, certain forms are provided but others are not. Motion for Default? Yes. Motion for Reconsideration? No, you have to use the general motion and order templates and adapt as necessary. Even for sealing, as mentioned two paragraphs ago, the county provides an Order for Sealing but not a (required) matching Motion. Why!!!

People get it in their heads, though, that there are forms for any type of desired action (“a form to get my neighbor to trim his trees”), and I have to admit it’s a view that I don’t view as totally deluded. On one hand, what a delightfully absurd image! Row after row of filing cabinets, thousands of them, in sum containing forms that compel every action under the sun. On the other hand, if you’ve spent time understanding how absurd the court system is, maybe the idea isn’t so outlandish after all.]

Anyway, there isn’t a simple form I can hand someone that lets them claim parkland they’ve put a fence across. That’s a whole legal action, probably years of legal turmoil (even with an attorney).

Sometimes people come in asking for just a form, and the complicated answer might be about the concept of adverse possession, how there are elements that must be met (actual possession, open and notorious possession, hostility, continuous possession, and exclusive possession) and then, if these elements are met, there would be a quiet title lawsuit so the courts can declare who owns what, and eject the disseised, which is the legal term for the person who… but the simple and most apt answer is: we don’t have a form for that. That’s how I left it that busy day in Kent. But it was so odd, having just learned about adverse possession for the first time, then having another question about it the following day, so I resolved to read further into the topic.

I started pouring through the Washington Practice and WSBA Real Property Deskbook sections on adverse possession, as well as on quiet title actions. Pretty interesting stuff! Pretty complicated stuff! If I had to hazard a guess (which, thankfully, as a librarian, I never have to do), I’d say this is beyond the capacity of 99% of pro se litigants. I would never dissuade someone, though, I might simply preface their research by outlining the difficulties and urging legal counsel.

Such was my own research as it bled into the next week. Then, Tuesday, 7/18, again, the seams of this accursed prison of reality drew further into focus.

I answered a phone call. The caller had cared for and inhabited an adjacent lot for some time and was wondering how they could go about claiming it. “I believe what you’re describing is ‘adverse possession.'” My vision split into halftone reverberations, I looked down and saw the light bouncing off the WSBA chapter on adverse possession still open on my desk. That subsection said something about planting trees and how that plays into the criteria of actual possession. The caller offered that she had planted trees, shouldn’t that play into it? My synapses sent a signal, enzymes were excreted, I blinked. She asked if we had forms to accomplish this, I said no, that it was quite complicated, and that she should talk with a lawyer.

Baader–Meinhof. Words on a screen, words in a legal treatise.

I got home and described this all to my wife, who mentioned that someone in a local Facebook group was pursuing something similar – none of the circumstances overlapped, these were all unique operators.

Adverse possession has consumed my life. I now scroll through tacking apps, I sleep hostilely each night, and I grill and enjoy my backyard openly and notoriously. It’s all I know.

And as I kept digging, I found that AmJur Pleadings and Practice Forms has great templates for complaints and whatnot! Not a simple form that I can just hand over, but if someone wanted to go at it pro se, that is probably the best option, coupled with the Real Property Deskbook. 100 emoji.

FROM THE DIRECTOR: JULY 2023

Mens Sana in Corpore Sano

By Barbara Engstrom, Executive Director

While getting on my bike to ride to work in the cold rain and dark during Seattle winters can seem like torture, it is usually the best part of my day.  I often have “Ah ha!” moments during my ride where I can resolve issues that seemed intractable day before.  The connection between the mind and body is an idea as old as the ancients. Roman poet Juvenal wrote orandum es tut sit mens sana in corpore sana – you should pray for a healthy mind in a healthy body.

The practice of law is already a time consuming and stressful profession.  Adding daily exercise may feel like another burden loaded on to an already too full plate.  With that in mind, here are some suggestions for adding wellness activities to your daily routine in a low impact way.

No Time to Exercise?  What About 7 Minutes?

When I’m travelling and my schedule is too full for my normal exercise routine, my go-to option is the original “Scientific 7-Minute Workout” popularized a decade ago by the New York Times.  “In 12 exercises deploying only body weight, a chair and a wall, it fulfills the latest mandates for high-intensity effort, which essentially combines a long run and a visit to the weight room into about seven minutes of steady discomfort — all of it based on science.”[1]  I’ll admit I was skeptical of the 7-minute workout before I tried it, but when done correctly, the intensity of the exercises leaves you feeling like you completed a much longer workout.

The term of art for these short duration workouts is High Intensity Interval Training (HIIT).  Researchers have found that HIIT workouts can improve overall cardiovascular fitness and muscle strength with less soreness than longer workouts.  In a study with obese participants insulin resistance was improved.[2]

Once you master the original 7-minute workout you can move on to the Standing 7-Minute Workout and even graduate to the Advanced 7-Minute Workout.  Don’t have 7 minutes to spare?  What about 4 minutes? The 4-Minute Workout is a very short, intense burst of activity such as running, biking, or swimming.  If you search for HIIT workouts you’ll find programs catering to any demographic including older adults, pregnant people, and overweight folks.

Computer Sloucher Pain Relief? Try Spinal Flossing

Many of us experience pain from slouching in front of a computer for hours on end.  Between bad office ergonomics and ignoring discomfort to forge on with work, this pain can become chronic especially for our spines.  Studies have shown that extensive sitting can be as bad for you as obesity or smoking.[3] Physical therapist Vinh Pham created a 15-minute daily routine to “future proof your body against chronic pain.”[4] Pham’s exercises target the most common pain points for computer slouchers — our necks, shoulders, spines, and lower backs and focus on preventative steps to avoid long term problems.

Pham equates good spinal health with good dental health.  Many people take a reactive approach to back pain.  Ignoring the pain until it becomes so acute that they feel the only option is surgery.  He wants people to think of spinal health like they would dental health. Just as we brush and floss daily to maintain good dental health, we need to take 15 minutes a day to maintain spinal health.    He even has an exercise called spinal flossing.   Check out Pham’s spinal flossing exercise and several others including one to prevent plantar fasciitis.

Take a Deep Breath to Lower Blood Pressure

You probably never give a thought to breathing, but respiratory muscles and how we breathe also have significant impacts on our physical and mental well-being.  Just like any other muscle group, our respiratory muscles can become less productive over time.  This is problematic because breath is essential not only to our ability to exercise effectively but also impacts weight, allergies, mood, stress levels, and cognitive performance.  As James Nestor, author of “Breath: The New Science of a Lost Art” says “You can’t be truly healthy unless you’re breathing correctly”[5] These nine exercises can help. 

What’s more, a five minute daily breathing routine can help lower blood pressure.  A study out of the University of Colorado, Boulder showed “Working out just five minutes daily via a practice described as “strength training for your breathing muscles” lowers blood pressure and improves some measures of vascular health as well as, or even more than, aerobic exercise or medication”[6]  The CU Boulder study had subjects do daily High-Resistance Inspiratory Muscle Strength Training (IMST) using a resistance-breathing training device called PowerBreathe.  The results were similar to what blood pressure medication would produce.  The study indicated that the breathing routine may also be a preventative measure for high blood pressure.[7]

In good news for post-menopausal women, the IMST routine improved cardiovascular health for women not taking supplemental estrogen. [8]

Sleep to Be a Better Lawyer

Pulling all-nighters and always being on-the-clock has traditionally been a badge of honor for the legal profession. But rather than leading to better outcomes, sleep deprivation can undermine a lawyer’s ability to function effectively.  According to the National Heart, Lung, and Blood Institute, “not getting enough sleep can cause trouble with learning and focusing, making decisions, and solving problems, as well as accurately judging other people’s emotions and reactions. Sleep deficiency can take an emotional toll, resulting in irritability, frustration, difficulty controlling your emotions and behavior, and coping with change. It may take longer to complete tasks, or to complete them accurately.”[9] Chronic sleep deprivation increases anxiety, stress, and blood pressure levels and can contribute to serious health outcomes like diabetes, heart disease, and depression.

The Path to the Land of Nod

·         Set up a consistent sleep schedule even on weekends

·         Get regular exercise and eat meals on a regular schedule (Don’t exercise or eat too close to bedtime)

·         Avoid caffeine after 3pm and alcohol before bed

·         Turn off screens an hour before bedtime

·         Use deep breathing, meditation, or visualization to decompress and clear your mind before bed

Simply put, the secret to good sleep is to develop routines and stick with them. But don’t beat yourself up if you get off track.  Consider napping.  According to WebMD “A short nap in the mid-afternoon can boost memory, improve job performance, lift your mood, make you more alert, and ease stress.”

Let the Law Library Help 

Check out Yoga for Lawyers: Mind-Body Techniques to Feel Better All the Time or A Lawyer’s Guide to the Alexander Technique: Using Your Mind-Body Connection to Handle Stress, Alleviate Pain, and Improve Performance from our Lexis Digital eBook collection.   Let us help you take a load off your plate with our paid research services. Visit our website at www.kcll.org or email us at services@kcll.org to find out more about available resources to ease your work burden so you can focus on achieving a sound mind and sound body.


[1] See Gretchen Reynolds, The Scientific 7-Minute Workout, New York Times (May 9, 2013) https://archive.nytimes.com/well.blogs.nytimes.com/2013/05/09/the-scientific-7-minute-workout/

[2] See Christie Aschwanden, Super Short Workouts Can Be Surprisingly Effective, Washington Post (May 7, 2022) https://www.washingtonpost.com/health/2022/05/07/short-exercise-health/

[3] See Edward R. Laskowski, M.D., What Are the Risks of Sitting Too Much?, https://www.mayoclinic.org/healthy-lifestyle/adult-health/expert-answers/sitting/faq-20058005

[4] See Vinh Pham, Sit Up Straight: Futureproof Your Body Against Chronic Pain with 12 Simple Movements. (Headline Home 2022)

[5] See Kelly DiNardo, Breathe Better With These Nine Exercises, New York Times (July 18, 2020) https://www.nytimes.com/2020/07/18/at-home/coronavirus-breathing-exercises.html

[6] See Lisa Marshall, 5-minute Breathing Workout Lowers Blood Pressure as Much as Exercise, Drugs, CU Boulder Today (June 29, 2021) https://www.colorado.edu/today/2021/06/29/5-minute-breathing-workout-lowers-blood-pressure-much-exercise-drugs

[7] See Allison Aubrey, Daily “Breath Training” Can Work as Well as Medicine to Reduce High Blood Pressure,  NPR.org (Sept  20 2022) https://www.npr.org/sections/health-shots/2022/09/20/1123500781/daily-breath-training-can-work-as-well-as-medicine-to-reduce-high-blood-pressure 

[8] Id at 5

[9] See Allison C. Johs, Simple Steps: Want to Be a Better Lawyer? Get More Sleep, ABA Law Practice (July 18, 2022) https://www.americanbar.org/groups/law_practice/publications/law_practice_magazine/2022/july-august/simple-steps-be-a-better-lawyer-get-more-sleep/

ROSS’ REF Q’S – WANNA PRAMANA?

WE GET A LOT OF REFERENCE QUESTIONS AT THE KING COUNTY LAW LIBRARY.
THE REFRAIN GOES THAT BECAUSE WE AREN’T PRACTICING ATTORNEYS, WE CAN’T OFFER LEGAL ADVICE—AS LIBRARIANS, WE CAN ONLY OFFER RESOURCES.
THAT SAID, SOME QUESTIONS ARE VERY INTERESTING & INSPIRE ME TO DO SOME RESEARCH OF MY OWN, COLLECTED HERE IN THIS COLUMN. DON’T CONSTRUE THIS AS LEGAL ADVICE!

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While my life has occasionally eked into the “extraordinary,” something like 99.99% has fallen into the realm of “totally normal” and “mundane.” The brief jolts I’ve received in the way of novel experiences have shown me that I am a simple creature, a lover of the ordinary. So, why do I always have my head in the clouds? Since high school, I’ve been fascinated by philosophy—I’ve routinely moused away from school assignments and avoided social situations to read and use the field to overanalyze my very normal conditions. Matter of fact, even further back, since elementary school I’ve read advice columnists like “Dear Abby” daily in the newspaper, and aren’t advice columns a type of philosophy? “What is the best course of action?” “Am I in the wrong?” The routine questions of advice columns suggest that there is a definite moral order (often surrounding mothers-in-law). “Be as you wish to seem.” Socrates, or Miss Manners?

Is there a certain ethical pathway to life? I still can’t tell. I’ve read a great deal of philosophy, from Plato to Nietzsche (though, I DNF’d Critique of Pure Reason and Being and Nothingness – my postulation is that these guys needed to touch grass), and what I’ve landed on for personal application is some combination of Aristotelian ethics for the pursuit of happiness (I consider myself a quintessential blonde (glib, pleasant) and what could be more unsophisticated and straightforward than seeking virtue through practice? Be magnanimous, and… you’ll be magnanimous—”it does exactly what it says on the tin!”) and Hindu philosophy for epistemology and deciphering reality.

For the sake of today’s RRQ post, I wanted to appreciate how Hindu philosophy approaches ways of looking at the world and assigning importance to its happenings, and one striking concept in this way is that of pramanas.

Pramanas are the paths to what is deemed “correct knowledge.” How can you be certain that what you know is valid? There are six pathways to knowledge in Hinduism:

  1. Perception – direct sensory experience
  2. Inference – applying prior fact patterns (“if there is smoke, there must be fire”)
  3. Comparison/Analogy (“an alligator seems like a crocodile, so I must be careful”)
  4. Postulation – extrapolation from facts (“RJ oversleeps on all the days that end in Y, he must oversleep every day”)
  5. Non-perception – can the lack of something prove something?
  6. Testimony of experts

More or less copied from the Wikipedia article, there. Maybe you should just read that… and if you did, you would have read that different Hindu schools accept different combinations of these as valid routes to knowledge. One holds perception alone as a valid, another accepts all six. Most are somewhere in between. I’m not of one mind on this, but more often than not, I’m a Samkhya guy who values only perception, inference, and expert testimony. That said, I can see how certain pramana, in certain contexts, could be seen as acceptable, and moreover I’m simply happy to have a system by which to weigh such epistemological concerns.

There isn’t a ref q here, sorry, the point of this column is this: I (mostly jokingly) wondered if one could use the Rules of Evidence as an epistemology of its own, and in thus pondering, I’ve been weighing the ERs against the pramanas. What is a valid presumption? Who can you trust? As far as philosophy goes, the ERs are about as dry and stuffy as the rest, but the thought has tickled me of some devout neophyte emphatically clutching their volume of Tegland & Turner. Yet it’s an idea I’ve returned to often: What if we, as a society, could reject spiritual dogma, and join to embrace ER 101 – ER 1103?

Some of the pramanas port over easily enough. If we were relayed some fact via hearsay, should we say we know it to be true? This is rejected by the pramanas and under Title 8 of the ERs. Or, if we consider the testimony of an expert, is that valid knowledge? Look no further than Title 7 of the Rules of Evidence: Opinions and Expert Testimony. The Supreme Court rulemaking process has already settled this aspect of epistemology.

What about some synthetic proposition we heard? Can we make an inference based on a postulation? Some Hindu schools would say yes, some no… and Title 3 re: Presumptions wasn’t adopted, so you’re in the woods there. Check case law, cenobite.

So which pramana has a direct ER corollary?

  1. Perception – direct sensory experience ✅ Title 6: Witnesses
  2. Inference – applying prior fact patterns (“if there is smoke, there must be fire”) ❌  ̶ ̶T̶i̶t̶l̶e̶ ̶3̶ ̶P̶r̶e̶s̶u̶m̶p̶t̶i̶o̶n̶s̶
  3. Comparison/Analogy (“an alligator seems to be like a crocodile, so I must be careful”) ❓ Title 4: Relevancy (it depends!) ✅ Rule 901: Requirements of Authentication
  4. Postulation – extrapolation from facts (“RJ oversleeps on all the days that end in Y, he must oversleep every day”) ❌ Nothing specific?
  5. Non-perception – can the lack of something prove something? ✅ Rule 602 speaks to witnessing what didn’t happen ✅ Rule 803: Hearsay Exceptions
  6. Testimony of experts ✅ Title 7: Opinions and Expert Testimony

I’m not a lawyer – ER stuff is complicated! Some of this boils down to “it depends,” but indeed some of the pramanas appear to have some basis in evidentiary law.

An issue arises in taking the Rules as gospel, though, and truly a lot of philosophy and religion is like this, where it can get ouroboros-y. For example:

Rule 401 “Relevant evidence” means evidence having any tendency to make the existence of any fact that is of consequence to the determination of the action more probable or less probable than it would be without the evidence.

Is that helpful? To determine if the wind is cold to Theaetetus, we must consider observations which probably lead to that determination? Uh, duh?

Several other interpretations must be made, too. Cognitively, foundationally: who is the trier of facts? Prakriti (the material universe, including the mind) as judge, and purusha (pure consciousness) as jury? Juries are indeed vetted to be independent of the world of the case, and they blossom into being to inspect the material world, only to disassemble, yet foundationally they persist. And you could argue that judges are something like prakriti, in that, like the mind, they are arbiters but still very much part of the system. This is fun to consider, but the necessary level of interpretation suggests that perhaps the ERs weren’t intended to comport with three-thousand-year-old Indian epistemology. 

The larger point in which this falls apart is that the ERs detail the burdens in producing evidence, and the admissibility of relevant vs. irrelevant evidence—so as a guide, the ERs might allow us to mull certain topics, but it doesn’t really point a way forward in saying what is “true.”

Would Pattern Jury Instructions help, could that be our dogma? A bit too narrow, unless you’re regularly discerning if there was fraud or outrage (I am). But anyway, jury instructions are just that—the power of discernment is still baked into our trier of facts, our individual jurors, or neurons, or whatever.

I think this is a good place to call it. When I first started writing this, the aspects of the argument that I couldn’t quite nail down suggested a depth that I’m now seeing as indeed more of a dearth. If the comment section were capable of being deployed, I would have greatly enjoyed your insights, dear reader. Next month is a bye month – talk soon.

 

FROM THE DIRECTOR: JUNE 2023

AI Generated Art: A Pixel is Worth a Thousand Lawsuits

By Barbara Engstrom, Executive Director

During the height of the pandemic and the insanity of the 2020 election I sought out things that were peaceful and calming.  One of usual my moments of Zen was looking at my friend Ward’s YouTube channel where he posts a short clip of himself doing a “fast and loose” painting each day.  It is very meditative to see the process of him turning a photograph into a painting.  The paintings soften the edges of the photographs, but at the same time make bring the subject matter to life.

Recently I read an article [1] about how AI art generators such as Stable Diffusion and MidJourney  are impacting artists’ ability to make a living.  For artists who are sought after, AI generators can simply use that person’s name and create an image “in the style of” that artist.  The article recounted the experience of Greg Rutkowski.  His art features detailed, moody medieval scenes with dragons and other magical elements and is popular with fantasy fiction authors for book covers.  AI art generators train on vast datasets of art from a wide variety of online places.  As AI learns artists’ styles, a person’s name such as Greg Rutkowski can be used as shorthand to create artwork that is eerily imitative of his style.

“These databases were built without any consent, any permission from artists,” Mr. Rutkowski said.

Since the generators came out, Mr. Rutkowski said he has received far fewer requests from first-time authors who need covers for their fantasy novels. Meanwhile, Stability AI, the company behind Stable Diffusion, recently raised $101 million from investors and is now valued at over $1 billion. [2]

Posting artwork online is now a double-edged sword for artists like Greg Rutkowski.  He needs to post his images in order to market his work but in doing so, he is providing more information for the A.I. art generator juggernaut to profit off his style and cut him out of the loop.

A University of Chicago computer science professor and his team of researchers are studying ways to help artists protect their work and business model.  Professor Ben Zhao spear-headed a project called Glaze which allows artists to use a cloaking system that adds “almost imperceptible “perturbations” to each artwork it’s applied to — changes that are designed to interfere with AI models’ ability to read data on artistic style — and make it harder for generative AI technology to mimic the style of the artwork and its artist. Instead, systems are tricked into outputting other public styles far removed from the original artwork.”[3]  Professor Zhao’s Glaze Project website allows users to download the free Glaze app to add cloaking to individual works of art.  https://glaze.cs.uchicago.edu/

Reading about this got me thinking about my friend Ward Spring and the calming presence of his online art displays. Selfishly, I hoped that he wasn’t considering taking down his videos.  I reached out to Ward to hear his take on theft of style by AI art generators and projects like Glaze which are trying to help protect artists.  Ward’s view is interesting because he has a foot in both worlds.  He does his daily painting posts, but his day job is in computer coding.  Here’s a bit of what he had to say:

Image preview

BE: When did you start painting?

WS: As a young kid I always had this image of myself painting as an old man, but I hadn’t really tried. My father had painted his whole life as a hobbyist. In 2020, when he was 88 years old, he was diagnosed with pulmonary fibrosis, a terminal disease. I live in Seattle and he was in Idaho. With the pandemic shutdown we decided to paint together using video calls. Dad sent me his painting supplies and we started painting through video calls every morning at 7AM. My home studio has several web-cams so we could see each other and he could see what I was doing. I would paint and he would coach. As his illness progressed, he grew weaker but insisted on doing our daily video calls. We painted nearly every day from August 2020 through September 2021 when he grew too weak to go on. He passed October 13, 2021. I have kept painting “almost daily” in his memory and because it’s so much fun.

BE: Why did you decide to post your work online? 

WS: I decided to upload my art to Twitter to have a record of my progress in an easy to share system. I started uploading the videos to YouTube since I had them from the video calls. If you watch some of the early ones you’ll see my dad. It’s now such a habit I’ll keep doing it. I do go back and watch videos of paintings that turned out better, or in a direction I want to develop. So, these online efforts are really cheap ways for me to store my stuff for myself. I have also ended up making friends with people from other countries because of these social networks.

Image preview     Image preview

BE: As you note, your paintings are available on both YouTube and Twitter.  Do either of those platforms have any system to help you protect your copyright in your artwork?  

WS: LOL, not that I know of. I accept my work isn’t worth stealing, so I am not worried. I’d find someone stealing my work as evidence I’m getting better.

BE: Ah, you sell yourself short.  I find your videos/ paintings joyful to see/watch. I noticed that there are no still image files on either YouTube account.  Was this a deliberate choice?  Does having only video images of your work make it more difficult for other people or bots to capture your work?

WS: I have medium resolution stills on Twitter. Seriously, I haven’t thought of anyone stealing my art. If something I created ended up getting famous because someone used it, I’d consider that a win.

BE: What are your thoughts on AI generated art?  As an artist, does knowing that there may be other people monetizing your creative work make you reconsider posting your work on-line? 

WS: I have only looked at a few AI art pieces and AI generated art videos online. At first, I was jealous at how bizarre AI art was, wishing I could do stuff like that myself. But now I have come full circle and think I’ll stick to using my eyes and hands, and Dad’s art supplies, to see what I can create myself. I can’t imagine ever making much money from my art, which is very liberating. I can do whatever I want without the pressure of “being good”. I paint for myself.

Image preview     Image preview

BE: Do you just assume that your work has been uploaded into AI art generator data sets?  Is there any way that you can know for sure?

WS: I haven’t thought about my art being sampled or used by anyone else. If someone does, I would love to see the result.

BE: Have you heard of the Glaze Project https://glaze.cs.uchicago.edu/?  It’s a research project out of the University of Chicago that is meant to help prevent AI from mimicking an artist’s style.  Would you ever consider using a tool like that? 

WS: I haven’t heard of the Glaze Project. I’m so new to painting (I’ve done about 800 pieces so far) I haven’t developed a style that I am aware of. To be honest, I would be interested in seeing AI art done in my style.

BE: What questions do you have about the legal implications of AI generated art?

WS: Modern musicians sample other people’s songs all the time. We all can pick out these sound samples as we hear them. Visual art is also “sampled”. Whenever someone creates a new visual piece, even without actually digitally sampling, folks inevitably say they see Picasso, Wyeth, Watterson, Groening, etc. Will there be court cases now with jurors looking at AI art pieces and deciding if this piece is too much like that piece? The brush strokes are too “Van Gogh”? It seems farfetched now but if millions of dollars are at stake it may happen.

BE: Any final thoughts?

WS: I, for one, welcome our new AI overlords.

Image preview     Image preview

BE: You’re always funny Ward, thanks for giving your thoughts!

As with many issues involving rapidly changing technology, the law has not caught up with the real-world implications of AI generated art.  There are already a raft of lawsuits on these issues and surely many more to come on questions such as: Are A.I. art generators violating the artists copyrights?  Is the “style” of an artist something that can be copyrighted?  Are works that are generated by A.I. eligible for copyright protection?

Want to Learn More About Our How the Law Treats Our New AI Overlords? 

If you’d like to research the intersections of artificial intelligence and intellectual property visit our website at www.kcll.org or email us at services@kcll.org to find out more about available resources at the King County Law Library.

And please visit www.wardspring.com to find your own moment of Zen.

[1] See Kashmir Hill, This Tool Could Protect Artist from A.I. Generated Art That Steals Their Style, New York Times (Feb 13, 2023)

[2] Id

[3] See, Natasha Lomas, Glaze Protects Art from Prying AIs, Tech Crunch (March 17, 2023)

ROSS’ REF Q’S – SETTLE A BET?

WE GET A LOT OF REFERENCE QUESTIONS AT THE KING COUNTY LAW LIBRARY.
THE REFRAIN GOES THAT BECAUSE WE AREN’T PRACTICING ATTORNEYS, WE CAN’T OFFER LEGAL ADVICE—AS LIBRARIANS, WE CAN ONLY OFFER RESOURCES.
THAT SAID, SOME QUESTIONS ARE VERY INTERESTING & INSPIRE ME TO DO SOME RESEARCH OF MY OWN, COLLECTED HERE IN THIS COLUMN. DON’T CONSTRUE THIS AS LEGAL ADVICE!

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Ed. Note: RRQ Nation has spoken – comments are enabled! 

Ed. Note #2: Comments require a log-in… boo! Comments are disabled. 

This is going to be a short one!

What I intended for this month is being pushed to next—it’s something I’ve had in mind for a while re: epistemology at the law library, but it’s already 12 paragraphs long and I haven’t really reached a thesis. It might end up being a bit of a Kinder egg, like me: appealing and sweet, but ultimately hollow. Stay tuned!

I just got this question: Are the RCWs protected by copyright?

On its face, I want to say, NO. Because how could they be? But of course, we shy away from off-the-cuff Yes/No answers, and perhaps it’s not so straightforward…

I fired up copyright.gov and clicked through these pages:

Ctrl+F for “law” “laws” “statutes” etc. (not helpful when investigating copyright “law,” hmm) reveals nada.

This page says that copyright “does not protect ideas, concepts, systems, or methods of doing something,” which, that sounds a whole lot like the law but they won’t come right out and say it!

We don’t see a lot of federal stuff here—my beloved Washington Practice, WSBA deskbooks -worthless! So, I head on over to old google.com and search “are state laws protected by copyright,” which I acknowledge is a genius-tier move. Mercifully there was a Wikipedia page that discusses this very issue, complete with case law and USC citations.

When I was in high school, Wikipedia broke through as a major resource, but as students we were discouraged from using it at all – “anybody can edit it!” Nowadays, I don’t think that Wikipedia is some bogeyman from which librarians should shy away, nor is it the end of the line, research-wise. I think of it as a valid jumping off point. Check out the references, click on the citations, check the cases in Westlaw! That is, the customer should do all this—to me, my emailing them the Wiki link (and some context) constituted my walking away from this query.

One last thing about this question is that it was framed as a hypothetical: the classic case of two buddies resolving a bet. I shared the above information just as if there was active litigation, so it’s not like I dismissed it, but there’s something in me that flinches when questions of this nature come in, and I can’t decisively say why.

One angle is that while we’re open to the public, we are a “special library” – you have to be doing legal research to physically use our space. But it’s true that this is legal research… and then some part of me wonders, “to what degree does it matter if it’s real?”

What makes a case or a legal question “real?”

It’s not a likelihood of a court win, as to operate by that standard would be unjust and impossible to determine anyway. Indeed, there are folks who come into the library in the throes of mental crisis, and their questions are often nonsensical, but ultimately, as librarians, we do try and answer as best we can. And, like this question, these are often interesting legal questions! So, to a large degree, we have to take each reference question as it comes and respond to it on its face, without thinking of its reality-based utility or outcome.

The question “what makes something real?” —is it worth considering at all? Perhaps my forthcoming column on epistemology in the courthouse will shine some light on this!

FROM THE DIRECTOR: MAY 2023

Packets for the People (Including Attorneys)

By Barbara Engstrom, Executive Director

Prior to the pandemic, the law library hosted three in-person legal clinics per week.  While there were sometimes long lines for the walk-in clinics and perhaps a wait time of a week or two for the clinics that required appointments, generally pro-ses could get timely assistance at one of our clinics or at another clinics hosted elsewhere in King County.   As with most things, the pandemic curtailed in-person clinics and getting assistance via telephone clinics has become significantly harder.

For county law libraries and legal aid providers, one of the best workarounds for the lack of in-person legal clinics are the form packets available from the King County Law Library, Washington Law Help, and various legal aid organizations.  Although packet formats tend to vary by the organization producing them, they generally contain easy to follow instructions written with non-attorneys in mind, and include the required forms for whatever action the person is pursuing.  In this article we’ll take a quick tour of the self-help packets available at KCLL and Washington Law Help.  While most of the packets are geared to pro ses, the King County Law Library has several packets that attorneys regularly pick up and find quite useful.

King County Law Library

For Self-Represented Litigants (SRLs)

The law library has a very robust collection of civil litigation packets that spun off from our award winning Self-Represented Litigant Workshop series.  In the SRL series we cover the basics of civil litigation presented in the framework of the associated court rules.  There is a basic civil lawsuit class followed by more advanced classes on filing motions, the process of civil discovery, basic issues of evidence, and pre-trial preparation.   For those undaunted by the prospect of representing themselves, the law library has a self-help packet for each of these areas.  The packets go into further detail with step-by-step instructions  and a discussion of the process in King County. As an added bonus, the law library has fantastic companion videos to help further illustrate some of the common problem areas that SRLs run into.  https://kcll.org/videos/  (Use the drop down to filter for civil litigation.)

Civil Litigation Packets

  • Starting a Civil Lawsuit in Superior Court
  • Responding to a Civil Lawsuit in Superior Court
  • Making a Civil Motion in Superior Court (Case With Assigned Judge)
  • Ask for a Default Judgment in Superior Court (Civil Case)
  • Starting an Appeal from Superior Court to Court of Appeals

In addition to the civil litigation packets, the law library has compiled form kits for family law issues using the King County Family Law Instructions and the associated forms.  These packets provide an easy and convenient way for SRLs to have all the instructions and forms in one place without having to bounce back and forth between the Family Law Instructions page, the Washington Courts forms page, and the King County Superior Courts forms page.   As with the civil litigation packets, KCLL has developed short, easy to understand videos to help family law SRLs navigate various issues. https://kcll.org/videos/  (Use the drop down to filter for family law.)

Family Law Packets

  • Divorce
  • Parenting Plans
  • Family Law Motions
    • Default
    • Contempt
  • Temporary Orders
  • Service of Process
  • Guardianship
    • Adult
    • Minor

Probate and Other Packets of Interest to Attorneys

We also have several probate and estate packets that both SRLs and attorneys find useful.  Our Transfer on Death Deed and Replevin packets are frequently requested by attorneys.

Probate Packets

  • Opening & Closing Probate WITH a Will
  • Opening & Closing Probate WITHOUT a Will

Estate Packets

  • Filing a Will without Opening Probate
  • Will in a Safe Deposit Box
  • Transfer on Death Deed (TODD)
  • Small Estate Affidavit

Other Packets of Interest

  • Replevin (How to Get Your Stuff Back by Court Order)
  • Appeal a Driver’s License Suspension
  • Claim Against a Contractor’s Bond

Washington Law Help

The form packets available via the law library are specifically tailored to King County rules and procedures.  For packets with general Washington application, Washington Law Help is a great resource.  For almost any topic a self-represented party is pursuing, it is worth running a search on Washington Law Help to see if they have it covered.  A fantastic new resource on Washington Law Help that I encourage you to look at and point self-represented parties to, is their “Do It Yourself” forms depot.  The DIY Forms resource takes users through a Turbo Tax-like interview process which then auto-populates forms sets based on those answers.  For computer savvy SRLs, it takes away a lot of the frustration and uncertainty of drafting legal forms.

WA Law Help DIY-Forms Topic Areas:

  • Filing Fee Waivers
  • Answering a Debt Collection Lawsuit
  • Filing for or Responding to Divorce
  • Parenting Plans
  • Healthcare Directives
  • Vacating Drug Possession Conviction Post-Blake

Questions?

This is not an exhaustive list of the forms available on either the King County Law Library’s website or Washington Law Help.  If you have questions about locating form packets on either site, please reach out to the law library.  If there is a form packet you think would be of use to SRLs, (or attorneys) let us know.  If you need other non-SRL oriented forms, we can also cover you there.  We have an extensive array of forms sets available in both print and electronic resources. Contact the law library: services@kcll.org

Finally, a big thanks to Stephen Seely, our former Outreach Services Attorney and now Director of the Pierce County Law Library, for doing such an incredible job of creating KCLL form packets that are thorough, yet easy for lay person to understand.

FROM THE DIRECTOR: APRIL 2023

Come Gather Young Lawyers: A Response to the Curmudgeon

By Barbara Engstrom, Executive Director

In the February edition of the Bar Bulletin, Mike Goldenkranz (self-described “full-time curmudgeon”) made a compelling appeal to our community to create pathways for young attorneys to pursue low bono law practice.[1]  Renting office space in the Puget Sound region is almost out of reach for young attorneys establishing a market-rate practice and virtually impossible for those starting a low bono practice.  Add to that the cost of subscribing to Westlaw or Lexis and the other expenses of running a law office and suddenly you realize that maybe the only newbie attorney who will be able to afford to go low bono upon becoming barred is Kim Kardashian.

Mike made several suggestions to help overcome these barriers.  As we read through his suggestions, my staff and I thought, wait – the King County Law Library already provides a lot of the services Mike mentions.  Below are the law library’s responses to several of Mike’s suggestions.

Office Space

“You may ask, what can more established lawyers do to help? Plenty, as it turns out. Young low bono lawyers need tools, support, and office space that is truly affordable and accessible.”

One of Mike’s main suggestions was for law firms to offer excess or unused office space to low bono attorneys for reasonable rates.  I invite low bono attorney to consider the King County Law Library as a coworking office space.  What types of amenities might a new attorney need in office space? A wish list might look something like this:

    • A desirable location close to the courthouse
    • Wi-Fi access
    • A variety of seating arrangements for solo and collaborative work
    • Printing, copying, and scanning.
    • Access to secure conference rooms for trial preparation
    • Private space for meeting with clients
    • Westlaw and research databases availability
    • CLE/ professional development opportunities
    • Ready access to legal research expertise

As it happens, the King County Law Library provides all these things and more.  We have prime space in the heart of the courthouse in both our Seattle and the Kent locations.  The building-wide Wi-Fi network provides very fast and reliable internet access.  Our workspaces are configured to provide a variety of seating arrangements that can accommodate solo or collaborative work, including quiet tables tucked into the stacks with fantastic views of the Sound and the Olympics.  We also offer on-demand printing, copying, and scanning. If you need to use a computer while you’re here, we’ve got that covered too.

Market rates for this type of coworking space in Seattle would be $300-$500 a month.  Not to worry, all are welcome to use the law library space for free.

Westlaw and Legal Research Database Access

“I’ve been told (and granted, it’s hearsay) that Westlaw and Lexis are still too expensive for these altruistic newbies embarking on low bono practices. I’ve not investigated pricing, but perhaps firms, law schools and Bar Associations can make those services available to those still idealistic enough to follow their passion and try to bridge the access divide while hoping they’ll be able to make a living.”

The Law Library’s in-house patrons have access to a very robust Westlaw subscription that includes all state and federal primary law and trial documents, jury verdicts, the full treatise and law review collection, and practitioner sets from every state including Washington Practice. In addition to Westlaw, in-house patrons can access the WSBA Deskbooks and KCBA Lawyer’s Practice Manual online and in print, Support Calc, Hein Online, and a very large eBook collection from Lexis Digital which includes the complete ABA treatise collection.  Patrons also have access to the legal research expertise of the law library staff.

Conference Rooms

“For lawyers working from their homes, meeting clients at the local coffee shop gets old (and compromises confidentiality). Conference rooms in law firms often go unused. They could be made available to low bono lawyers at very modest hourly rates.”

The law library has ample conference room space for short term reservations for private client meetings, Zoom hearings, or telephone conferences.  For longer term uses such as multi-day depositions or extended trials, we offer full day conference room rentals and multi-day availability to set up a war room with secure equipment storage and access for the duration of a trial.  Rooms can be reserved for a very reasonable fee of $20 per hour for subscribers and $35 per hour for non-subscribers.  Conference rooms that are not reserved are offered on a first come, first serve basis at no cost. See our Conference Room webpage for more information. https://kcll.org/reserve-a-conference-room/

And More…

In addition to Mike’s suggestions, the law library also offers other services and opportunities for new attorneys to establish low bono practices and help with developing their reputation and client base.  Members of our subscriber program have remote access to our Lexis Digital eBook collection.  Subscribers can access the WSBA Deskbooks, the King County Lawyer’s Practice Manual, Annotated  Statutes and Court Rules along with hundreds of other treatises from the convenience of home. While remote access to the Lexis Digital eBook is only available to subscribers, the law library also offers a wealth of remote access to eBooks and legal research databases to non-subscribers as well.  These include the National Consumer Law Center, Nolo Press, and Wolter’s Kluwer’s Vital Law databases.  See our Remote Databases page for more information. https://kcll.org/remote-databases/

We often team up with attorneys working in fields that have a strong pro se/ access to justice component to present workshops or create video content to assist pro se patrons.  This is a great way for newer attorneys to market themselves and their low bono practice. We’ve teamed with attorneys for workshops and videos on family law, civil litigation, probate, wills, power of attorney, and protection orders just to name a few subject areas.  We are happy to work newer attorneys on these types of projects and love when they suggest workshops.  For more information see our videos webpage. https://kcll.org/videos/

How You Can Help!

“What can start immediately, though, is for firms, law libraries, law schools and bar associations, to post notices in the local bar bulletins, state bar magazine, and other media and venues where our young access-to-justice legal eagles look, listing office space, conference rooms, legal research applications and law practice desk book help on easily-afforded terms.”

As noted in this article, the King County Law Library is a fantastic resource for newbie attorneys interested in embarking on a low bono practice and we check all the boxes Mike mentions.  For most of the issues, we already have a service in place.  What we really need is help getting the word out.

    • If you work with newer public interest-minded attorneys, please show them a copy of this article.
    • If you are part of a professional organization or special interest section that connects with newer attorneys, please consider saying a word or two about the King County Law Library’s services at your next meeting.
    • If you are a newer attorney and would like more information on any of our services, opportunities for speaking or creating video content, or becoming a subscriber please visit our website at kcll.org or email us at services@kcll.org.

Finally, a big thanks the Mike Goldenkranz for bringing up the issues facing new attorneys trying to make a dent in access to justice and low bono services and for making a compelling case for ways we all can help.

 

[1] Michael Goldenkranz, Access to Justice: Representation for Modest Means Clients, King County Bar Bulletin (Feb 2023) [MBG is retired but remains a full-time curmudgeon, who volunteers at KCBA Neighborhood Legal Clinics and has been a friend of both the NLC and Pro Bono Committees.]

ROSS’ REF Q’S – MOTION TAKESY BACKSY

WE GET A LOT OF REFERENCE QUESTIONS AT THE KING COUNTY LAW LIBRARY.
THE REFRAIN GOES THAT BECAUSE WE AREN’T PRACTICING ATTORNEYS, WE CAN’T OFFER LEGAL ADVICE—AS LIBRARIANS, WE CAN ONLY OFFER RESOURCES.
THAT SAID, SOME QUESTIONS ARE VERY INTERESTING & INSPIRE ME TO DO SOME RESEARCH OF MY OWN, COLLECTED HERE IN THIS COLUMN. DON’T CONSTRUE THIS AS LEGAL ADVICE!

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Hey! I started writing this monthly blog a year ago now. What a year it’s been: 365 days, 52 weeks, four seasons – the whole shebang. And so many delightful ref q’s. Now, in that time, I haven’t received an iota of feedback, and it’s possible I’m typing away into the void, but isn’t that the nature of anything? If this blog had won the Pulitzer (which I still can’t believe I was robbed of this first year—it still stings), wouldn’t that voice still be whispering in my ear, “memento mori?” No? Oh.

A year of ref q’s! Some of these require me going through old notes or sent emails, trying to capture something thoughtful that fits the gist of the blog. Other times, a Q stays with me, and I have no say in investigating further – such is the case this month.

Someone emailed saying they were looking for a “form to withdraw my motion.” No further information was provided. The way I interpreted that was, a motion was submitted, it had not been heard by a judicial officer, and maybe it hadn’t even been served on the other party. Simply, a motion was filed, and the emailer came to immediately regret it, and want to hit “undo.” Surprisingly, I have no recollection of having received this Q before, and my coworkers said the same. The way forward wasn’t obvious.

The first route to explore was Rule 15 (Amended and Supplemental Pleadings). We’re used to getting Q’s about amending pleadings, and if you squint, that’s kinda what the person wants… But not really. They wanted to take a whole motion and amend it to say “nvm.” Does that count?

After searching the Washington Practice chapters on Pre-Trial Motions and also Pleadings, and then talking with my colleagues, this seemed like unfortunately the best route. CR 7 (Motions) and CR 10 (Pleadings) don’t address retractions, withdrawals, or whatever else you’d call this. But sometimes the rules don’t address something seemingly obvious, so practitioners need to grab onto something, anything tangentially related. I let the emailer know that this was a surprisingly uncommon ask, and that CR 15 is the closest thing with which we could come up.

This was weeks ago, and I haven’t been able to shake the idea that this Q remained unanswered. It’s true that with The Law, perfect solutions are in short supply, but all the same, I couldn’t get over it. There seemed to be two tandem goals:

  1. I wish I hadn’t submitted this motion – CTRL +Z.
  2. I regret making this motion and don’t want it to take effect.

(1) is a fairly straightforward “not gonna happen.” Once you submit something to the clerk’s office, it’s theirs and public record (short of sealing the file, which is not a given in any situation). They are literally not going to hand it back.

So, the effort seems to boil down to stopping the motion from taking effect, and ASAP. Because of course the emailer could dutifully serve the other party and attend the hearing, to only then say “nvm” but that is weak sauce and obvious. “It’s my motion, and I want to withdraw it now!”

Other ideas swirled around my noggin. Could you use a motion to strike (CR 12(f))? These are technically a defensive maneuver, but couldn’t you ask the court to strike your own motion as “immaterial?” It’s somewhat silly, and nothing in Washington Practice suggests this is even a possible path, but I couldn’t find enough to rule it out.

Could you contact the clerks or the bailiff and ask to cancel the motion hearing? If there is no set time for the motion to be heard, it won’t be! It will sorta just float away in the judicial aether, right? So far this seems the most straightforward and quick approach. But what if there was an even easier way?

I did something unusual and walked across the hall to the Superior Court Clerk’s Office and asked around. After some bouncing around, I was told the emailer could file a Motion to Vacate Ex Parte Via the Clerk. I reiterated that there isn’t a signed order, there is just a submitted motion, but the clerk stuck with their answer and I went on my way. This didn’t seem correct- CR 60 is titled “Relief from Judgment or Order” and the emailer has neither a judgment nor an order. Section (c) of CR 60 does technically say, “This rule does not limit the power of a court to entertain an independent action to relieve a party from a judgment, order, or proceeding.” Emphasis mine. But in reading through the entirety of Washington Practice – Rules Practice on CR 60, usage for this purpose is not even slightly addressed. My more tenured colleagues dismissed this idea out of hand.

I began to feel like Quinn in Auster’s City of Glass, but instead of waiting in an alleyway for Stillman, I was looking at the Westlaw homepage, with the cursor blinking in an empty search bar. How could such a simple question not have a simple answer? Was the cursor blinking in morse code, “yr dumb?”

Finally, with weeks gone by, I reached out to local attorney Rosemarie LeMoine, who has volunteered with the library on a number of webinars and videos. I don’t want to exhaust our volunteer attorneys’ goodwill with every silly question I have (I have many), but as someone who whittles away his hours counseling others, “you need legal advice from an attorney,” I figured I would get some legal advice of my own.

Her answer… you simply contact the commissioners’ email address (family law) or the bailiff (general civil cases) and ask them to strike the motion! Of course, you have to CC the other party, but just like that… you ask them to strike it! And then, it’s stricken! Beautiful.

None of the books I consulted nor the veteran courthouse employees I spoke with suggested that this was a possibility. It took talking to a seasoned attorney (a million thanks to Rosemarie) to know that emailing a commissioner/bailiff to strike a motion is even an option. This is probably common knowledge for actual practitioners, but for the pro se’s and other outsiders (like librarians), it’s impossible to discern.

It’s been that folks have approached the reference desk wanting to know a court rule, but in seeing the Civil Rules or Local Family Law Rules, they’ve lowered their voice and said, “Isn’t there something else?” Another way to achieve X, Y, or Z. And I’ve replied confidently, “There are no secret rules.” But now I wonder, what other pathways remain hidden? It’s often the case that the more complex a reference question seems, the simpler its answer must be, but do all the simple questions require some arcane knowledge? What else remains obscured? Tune in next month for another Ross’ Req Q’s to find out!

 

FROM THE DIRECTOR: MARCH 2023

Guest Column: What is Happening in Iran? An Iranian American Attorney Explains

By: Hazel Engstrom, Reporter for the Ballard High School Talisman

On September 16, 2022, Mahsa Zhina Amini, a 22-year-old Iranian woman was killed at the hands of Iran’s morality police for not wearing her Hijab to the standard of the Islamic republic’s dress code. Since then, across Iran, thousands have taken to the streets calling for justice for Amini. According to the United Nations, over 14,000 members of civil society have been arrested by the government for their involvement in these protests. An estimated 450 protester have been killed since September 17 when the demonstrations first began.

I have followed the news of the protests in the media but wanted to get a deeper understanding from someone who has experienced life in Iran first-hand.  I reached out to Tanya Fekri, an Iranian immigration lawyer from Edmonds, Washington, who was born in Tehran and maintains a strong connection to the culture and people of Iran.  Tanya helped me to understand the protests taking place in Iran and their political and historical connotations.

How would you introduce your work? What is your connection to Iran?

I am a licensed attorney in the state of Washington and my area of expertise is in Immigration Law. I was born in Tehran, Iran and emigrated to the United States with my family towards the end of the Iran-Iraq war. My family and I personally experienced the immigration process first-hand and that is why I became interested in immigration law. More importantly, my immigration law practice has helped me to work directly with the Iranian community in the U.S. and those in Iran to seek lawful pathways to live and work in the United States. My source of inspiration and hope stems from my grandmother who will always remain my guardian angel. She was a pious woman who chose to wear the headscarf but was vehemently against government actors regulating women’s bodies and mandating the wearing of the hijab. Her spirit and strength instilled in me and the rest of the women in our family the importance of choice when it comes to making decisions about our bodies and how we choose to express our freedoms. I have family members who have risked their lives to free Iran and have faced beatings and imprisonment by the Islamic regime for their courageous actions. I come from that line of blood and I feel an obligation and strong desire to keep the political legacy alive. To that end, it has truly been such an honor to protest alongside my parents and my family members in hopes that our country will one day attain the freedom that our people so rightfully deserve and have been waiting for far too long.

How do you think the protests occurring in Iran today are similar to those that have occurred in the country historically? How is what’s happening now different?

Historically, the Iranian people have always protested for the same reasons–human rights for all, democracy for Iran, and freedom. We have now unified as a collective force to fight for the same causes as we have done previously, but what makes these protests even more special is that we are shouting chants such as “zan, zendigi, azadi” (woman, life, freedom) and by doing so we are linking the protest to the broader issues of women’s rights–specifically, a woman’s right to make choices without fear of violence-and targeting the very foundations of the Islamic regime and its ideological taboos.

How would you define the role of morality police to someone unfamiliar with their presence in Iran?

The ideological taboos of this regime are rooted in how women’s bodies should be viewed and controlled under strict religious interpretations. Therefore, the female body has always been at the forefront of the regime’s political agenda. Much of the role of the morality police is to enforce the mandatory dress codes and the state’s gender and sexual proscriptions. Members of the morality police often harass, attack and imprison women in public for not wearing the hijab correctly. In this particular case, Ms. Amini died as a result of not wearing her veil correctly which puts the morality police under spotlight. 

What does the reaction of Iran’s government, specifically Ali Khamenei tell you about the effect these protests are having nationally? Internationally?

Despite the branding of these protests as “riots” and a U.S. backed conspiracy, Iran’s supreme leader, Ali Khamenei, is recognizing that these current uprisings are threatening the regime’s legitimacy. Many of the religious regulations that are supposedly rooted in Islamic theology are being questioned by all sectors of society, including those who have more religious leanings. The misusing of religion to promote a political agenda that is rooted in abuse, corruption, and lies can no longer be tolerated by Iranian citizens and those living abroad. The outpouring of support, protests, and activism all around the world are getting us closer to our fight for human rights and an end to the Islamic regime—a dictatorship that has censored and committed heinous crimes against humanity for the last 4 decades. 

What changes social and political, do you think may come as a result of these protests?

Weakening of the regime; abolishment of the obligatory headscarf; and a change in political power and makeup that will get us a step (or a few steps) closer to a democratic Iran.

How would you define Iran’s government? How has it changed since 1935?

The most drastic change that has taken place since 1935 was the shift from monarch (Shah) rule to the formation of the Islamic Republic. This revolutionary shift replaced the previous criminal code with the now codified Islamic Penal Code which criminalizes many basic human rights and liberties including the right to freedom of speech and assembly. Before the 1979 revolution, politics and religion remained separated, however, there were some religious scholars and clergymen who held political seats and exerted some political power. After the 1979 revolution, the religious political groups drew out the Shah and implemented a regime change that fought to intertwine religion and politics and control the way society would function and behave. Throughout these last forty plus years, there have been far too many political prisoners and innocent civilians that have been beaten, tortured, and killed by the hands of the Islamic regime. 

How is this issue larger than simply wearing a Hijab or not?

Yes, absolutely. It is about the freedom of choice—right to choose to wear the headscarf or not to wear the headscarf. It is about living in a country where you have the freedom and liberty to exercise your basic human rights without the fear of violence, torture and/or death. 

 

When looking at the protests from the outside, it can be easy to assume that they are solely about the hijab, but as Tanya explains, the cry “zan, zendigi, azadi” (woman, life, freedom) connects it with the broader issues of women’s rights more generally, and the right to live without fear of violence and intimidation.  More than that, she helps us understand that there is a long history of protest in Iran for basic human rights, political freedom, and freedom from religious oppression.