Lawyer TikTok? Yes, It’s a Thing.

By Barbara Engstrom, Executive Director King County Law Library

An article titled “How Lawyers Can Benefit from TikTok Without Being ‘Cringe’”[1] recently came across my inbox. My first thought was: Wait, how does a lawyer even have a professional presence on TikTok?  From my limited exposure to TikTok via my teenagers, it is primarily teens posting dance videos and responding to odd ball challenges.  Granted, kids spend hours swiping through TikTok content, but that demographic doesn’t seem likely to generate many client leads.

My second thought was: How can anyone over the age of 20 avoid being “cringe?” I am regularly labeled cringe for my choice of food, clothing, music, and car (2007 Subaru wagon).  But TikTok is a fickle mistress.  Case in point, the New York Times recently ran piece on 52-year-old documentary filmmaker, Louis Theroux’s sudden rise to TikTok fame based on his rap “Jiggle Jiggle.” “He delivers the rap in an understated voice that bears traces of his Oxford education, giving an amusing lilt to the lines ‘My money don’t jiggle jiggle, it folds/I’d like to see you wiggle, wiggle, for sure.’”[2]

How is TikTok Different from other Social Media?

First, TikTok is for very short attention spans.  Videos are often 15, 30, or 60 seconds.  Recently, the maximum time was expanded from 3 minutes to 10 minutes but apparently anything over 1 minute “stresses users out” and users will watch longer videos at double speed.[3] Second, unlike other social media where you need to build up a  significant base of followers to gain viral status, TikTok’s algorithm allows creators to go viral with few to no followers making it less of a barrier to entry for those first starting out. Third, TikTok is very, very popular. It was “the most downloaded app of 2021 and boasts more than a billion monthly active users. Mobile researcher Data.ai estimates that the average user spends nearly twice as much time on TikTok every month as they do on Facebook – 28.7 hours, compared to 15.5 hours.”[4]

How are Lawyers Using TikTok?

Some lawyers like Cecillia Xie of Morrison & Foester, Joanne Molinaro of Foley Lardner and Fumnany Ekhator, a recent Penn Law grad, use TikTok to discuss the law but more in connection with their personal lives.[5]  Clothes, food, and relationships get blended into posts about the law school experience or what it’s like to  practice law.  Other attorneys use TikTok as a medium to give legal information in a bite-size, entertaining format as a marketing and outreach tool.  Mike Mandell, lawbymike, uses goofy videos to describe basic concepts of criminal law like police stops or spousal privilege.   Ethen Ostroff, “The TikTok Lawyer” has videos geared to other attorneys – grow your business on social media; using virtual assistants – as well as videos aimed at potential clients – boating accidents; CPAP machine side effects. Brad Shear, bradshear, does very short legal takes on current events. Maclen and Ashleigh Stanley, the.law.says.what., married recent Harvard Law grads, do slightly longer explainers on current news stories.

What are the Upsides?

Cecillia Xie makes a compelling case for the upsides of attorneys on TikTok and mentions the following ways that creating a presence on TikTok can be a smart move. 1. “Creating content on TikTok can raise your profile. Early adopters of any social media platform tend to reap outsize rewards compared to later adopters. As the creator pool becomes more saturated over time, it becomes increasingly difficult to stand out and effectively reach your target audience.  Take advantage of TikTok’s relative nascency and current momentum while you can.”[6]  Case in point, most of the articles that come up in a search for lawyers on TikTok either feature or at least mention one Cecillia Xie.  2. “Being one of the first to interface with a consumer product like TikTok can help you develop familiarity with its technological features and better understand the competitive landscape facing your clients.”[7]   As TikTok continues to dwarf Twitter and Snapchat in advertising market share, it is likely that more potential clients will be using TikTok and working knowledge of the vagueries of TikTok can prepare one for future client issues.  3. “Compelling branding on TikTok can deepen your relationships with clients…. With the press of the record button, TikTok allows you to showcase your personality and knowledge simultaneously – a hybrid short-form power lunch and client alert distributed to as many people as are on your mailing lists, or more.  And even if all of your clients are not on TikTok, their kids definitely are.”[8]

What are the Pitfalls?

Leila Bijan of Zuckerman Spaeder noted six ethical pitfalls for lawyers on TikTok.  They include:

1. Inadvertently creating attorney-client relationships with followers – Many lawyers on TikTok offer advice on what their followers should do in different types of legal situations, such as police encounters. If the advice is specific enough, it could create an attorney-client relationship…
2. Revealing client confidences – Lawyers who want to discuss interesting clients and cases on TikTok are playing with fire, since—subject to a few exceptions—lawyers are prohibited from revealing information about the representation of a client….
3. Getting caught up in TikTok trends and entertainment value at the expense of your ethical obligations — Anything that combines humor or sarcasm with legal advice should be approached with extreme caution….
4. Providing inaccurate legal information — Lawyers on TikTok should be crystal clear about the jurisdictional limitations to their legal commentary….
5. Making a lawyer advertisement that does not meet ethical requirements — Some lawyers on TikTok discuss past case successes, including the large verdicts they’ve won for their clients. But slight variations in wording can turn a lawyer’s celebration of success into a lawyer advertisement that might not comply with the relevant lawyer advertisement rules ….
6. Not knowing which jurisdiction’s ethical rules govern or what those rules are — If a lawyer reaches audiences beyond state lines (which is likely on such a popular platform), then that lawyer might be subject to those jurisdictions’ rules too—even if the lawyer is not an admitted member of those bars.[9]

How to Avoid Being “Cringe”

For those attorneys who successfully navigate a professional presence on TikTok, or any social media platform for that matter, a delicate balance between creating content that is entertaining, informative, and a bit whimsical is de rigueur.  Cecillia Xie suggests using a deep understanding of your audience and your brand to guide your content, along with mirroring the tools and effects that other trendsetters are using to create compelling content. “TikTok may feel casual, but posting publicly is anything but.  Before you post a video, always ask yourself whether you would be comfortable playing the video in Times Square or appearing as a headline in the New York Times.”[10] Ethen Osstroff also has some advice for success on TikTok.  He notes that self-promotion will backfire. “Think ‘reach out to me for questions’ instead of ‘contact a lawyer.’”  He also advises not to get overly caught up in reactions to the videos – people are bound to judge – just focus on putting up content with value. [11]

A  “Second Life” Cautionary Tale

Having looked at a bit of the attorney TikTok content I would have to say that my reaction is a solid “meh.”  TikTok is created for short attention spans, the law is not.  To me, a lot of the content made my ethics violations radar go “jiggle jiggle.”  Compelling TikTok videos also seem to require a lot of exposition of one’s personal life.  I imagine it’s a difficult dance to balance that level of personal exposure with maintaining a professional demeanor.

On social media, a premium is placed on coming up with new, ever-evolving content.  For attorneys who are already overscheduled, the sheer amount of time it takes to create, review, and distribute content seems like a poor return on investment.  I’m reminded of the hype surrounding Second Life in the mid-2000s.  Many a university spent significant resources building a presence on Second Life with replicas of their real-life campuses and virtual classrooms where actual, for-credit classes were taught.  Second Life’s popularity fizzled before long, leaving those virtual campuses ghost towns.

But then again, what do I know?  I could never have imagined why anyone would want to use Twitter and I still read books in print, which I’m pretty sure is “cringe.”

Questions on TikTok or Other Social Media?

If you have questions on using social media to market your practice, how social media fits into the rules of professional conduct, or how social media has been handled by courts feel free to contact the King County Law Library at services@kcll.org.  We are also happy to help with non-trendy (re: cringe) research topics as well.

[1] Cecillia Xie, How Lawyers Can Benefit from TikTok Without Being ‘Cringe’ Law 360 (July 25, 2022) https://www.law360.com/articles/1514743

[2] Stephen Kurutz, How Louis Theroux Became a ‘Jiggle Jiggle’ Sensation at Age 52, New York Times (June 17, 2022) https://www.nytimes.com/2022/06/17/style/louis-theroux-jiggle-jiggle-tiktok.html

[3] Chris Stokel-Walker, TikTok Wants Longer Videos – Whether You Like It or Not, Wired (Feb 21, 2022) https://www.wired.com/story/tiktok-wants-longer-videos-like-not/

[4] See Xie supra

[5] Tianna Headley, Big Law’s TikTok Stars Embrace Industry’s New Social Media Norms, Bloomberg Law (July 12, 2021) https://news.bloomberglaw.com/business-and-practice/big-laws-tiktok-stars-embrace-industrys-new-social-media-norms

[6] See Xie, supra

[7] Id

[8] Id.

[9] Leila Bijan, Six Ethical Pitfalls to Avoid on Lawyer TikTok, JDSupra (Sept 30, 2021) https://www.jdsupra.com/legalnews/six-ethical-pitfalls-to-avoid-on-lawyer-9601327/

[10] See Xie, supra

[11] Jacob Sapochnick, 11 Lawyers Going Viral on TikTok Right Now, Enchanting Lawyer, https://www.enchantinglawyer.com/10-lawyers-going-viral-on-tiktok-right-now/

The New Supreme Court Paradigm: Legal Research Post-Roe

Barbara Engstrom, Executive Director, King County Law Library

Many people have used the term consequential to describe the October 2021 U.S. Supreme Court term.  Somehow, the word “consequential” doesn’t seem adequate to describe the seismic shift in jurisprudence that just happened and seems destined to continue. I find myself pondering the myriad ways in which the decisions of this term will impact how we argue, teach, and research the law going forward.

Even studying for the July bar exam was impacted.  In late June, Washington along with several state bar associations (and the National Conference of State Bar Examiners) felt compelled to issue statements to offset panic in July test takers that the raft of new U.S. Supreme Court decisions upending laws affecting reproductive rights, religion, gun restrictions, voting rights, criminal, and administrative law would not be tested.[1]  A prospective bar exam taker used a Calvinball analogy to compare the questions and answers in his test prep materials to the what the answers will be after this term. “There’s a bit from the comic strip Calvin and Hobbes that’s recently entered the legal lexicon: Calvinball. Calvinball is a game that has no actual rules; in the comic, Calvin and Hobbes just make up the rules as they play.”[2]

Law professors who have relied on essentially the same syllabi for years will have a busy summer figuring out how and when to cover the new decisions in their courses and what to say about precedent.  Legal research will be impacted in many ways as well,  including the following:

Keeping Closer Tabs on Other States’ Laws

One facet of some of the new and pending abortion bans in various states is the attempt to restrict a citizen’s ability to travel to a state where abortion is legal. Justice Kavanaugh addressed this in his concurrence, writing: “Second, as I see it, some of the other abortion-related legal questions raised by today’s decision are not especially difficult as a constitutional matter. For example, may a state bar a resident of that state from traveling to another state to obtain an abortion? In my view, the answer is no based on the constitutional right to interstate travel.”[3] As noted in the New York Times, “Rory Little, a law professor at the University of California’s Hastings College of the Law, noted a bit of irony on Twitter: “Justice Kavanaugh votes to overrule abortion protections because not specifically mentioned in the Constitution — and then his concurrence relies on an unwritten ‘constitutional right to interstate travel.’” The Times further observes, “Justice Kavanaugh, for his part, cited no precedents or constitutional provisions for his statement that a state may not ‘bar a resident of that state from traveling to another state to obtain an abortion.’”[4]

Indeed, many states where abortion is protected quickly moved to safeguard persons traveling to obtain abortions. Soon after Dobbs was handed down, Governor Inslee issued a directive to the Washington State Patrol to refuse cooperation with investigations related to abortion and is preparing to take “additional steps to further protect patients from investigative activities by agencies and vigilantes in anti-choice states.”[5]

Notwithstanding Justice Kavanaugh’s assurance, Dobbs portends protracted legal battles between states. For legal research, this underscores the importance of comparative statutory research.  Hein Online’s National Survey of State Laws database is an excellent tool to find legislative surveys comparing similarities and differences in statutory provisions among states. Hein updated their “hot button issues” (abortion, gun control, and voter law) to conform with the recent decisions. Hein Online is available for in-house use at the law library. Another valuable resource is the National Conference of State Legislatures website. https://www.ncsl.org/  The NCSL website is particularly helpful for tracking pending legislation.  Hein Online also has the Subject Compilation of State Laws which indexes law reviews and other scholarly works that include comparative legislative surveys.  With the lag in publication time for law reviews, this source might be best for historical comparisons for the time being.  Westlaw and Lexis both have 50 state statutory and regulatory surveys – though they should also be scrutinized for currency.  In addition to these traditional resources, newspapers and advocacy organizations can be helpful for finding current laws in a comparative context.

Ancient History

Another thread running through this term’s cases was the emphasis on history and tradition as a lodestar for Constitutional interpretation.  In Dobbs, Justice Alito writes, “Next, the Court examines whether the right to obtain an abortion is rooted in the Nation’s history and tradition and whether it is an essential component of ‘ordered liberty.’ The Court finds that the right to abortion is not deeply rooted in the Nation’s history and tradition.”[6] Leslie Reagan, a professor of history and law, contends that the court gets the history egregiously wrong. “Alito explicitly dismisses the distinction between ending a pregnancy before or after quickening, a distinction that my research has found was critical to the way American women and American physicians traditionally thought about pregnancy. In early America as in early modern England, abortion before “quickening” was legal under common law and widely accepted in practice.”[7]

The court’s emphasis on history and tradition was not limited to Dobbs. It ran through the New York gun law case[8] as well as the Bremerton praying football coach case.[9]  In fact, the words “history” and “tradition” were respectively used 67 and 47 times in Dobbs, and 95 and 51 times in NY Rifle & Gun Club.[10]

Since the court appears to be headed to all originalism, all the time, it’s a good idea to sharpen those multi-disciplinary historical research skills.  While Google Scholar https://scholar.google.com/ can be a good starting point, both Seattle Public Library and the King County Library System have deeper access to current and historical academic scholarship on their Academic OneFile and ProQuest databases.  The advantage of using these databases over Google Scholar is that you will be able to take advantage of search features such as advanced Boolean searching, abstract searches, and date range limiters.  JSTOR is an excellent database for deep dives into historical journals. While academic libraries are the primary subscribers to JSTOR, early journal content – published prior to the last 95 years in the U.S. and in the last 143 years internationally is available via JSTOR’s Open Access collection. https://about.jstor.org/oa-and-free/  That time frame would seem to hit the sweet spot for the current Supreme Court.

The Straight Story

There has been much discussion over whether Justice Gorsuch mischaracterized the facts in Kennedy (the praying football coach case).  The heated interchange between Gorsuch and Justice Sotomayor in the main opinion and the dissent echoed the same argument that occurred in the court of appeals. In essence, the dispute is whether Kennedy’s prayers were personal, quiet, and private or whether there was implicit pressure on the team to join in the prayers. Sotomayor took the unusual step of including a photograph of one of  the crowed prayer circles in her dissent. Seattle Times columnist Danny Westneat questioned the veracity of the majority’s narrative based on reporting that the Times had done on Kennedy in a 2015 article titled Football Coach Vows to Pray. “It describes — in Kennedy’s own words — how he was inspired to start holding midfield prayers with students after he saw an evangelical Christian movie called ‘Facing the Giants,’ in which a losing team finds God and goes on to win the state championship. Kennedy ‘has held his postgame ritual at midfield after each game for a motivational talk and prayer ever since,’ the story recounted. By doing so, Kennedy said he is ‘helping these kids be better people.’”[11] The Football Coach Vows to Pray article ended up in the court record.

Contemporaneous news accounts can be powerful for establishing factual narratives.  While Google searches are a good starting point, more targeted news searching can be done in the aforementioned Seattle Public Library and King County Library System’s Academic OneFile and ProQuest databases.  Both SPL and KCLS have specific databases to access both the current and historical New York Times and  Seattle Times and aggregator databases such as National Newspapers (including Chicago Tribune, Los Angeles Times, Wall Street Journal, and Washington Post) and Washington State Newspapers (over 130 sources across Washington State) that allow for deep dives into content with advanced Boolean searching.  These databases are great way to access news articles that are otherwise hidden behind paywalls.

Have Questions??

If you have questions about any of the resources discussed in this article or would like more research tips, feel free to contact the King County Law Library at services@kcll.org.

[1] See WSBA Announcement: Examinees taking the NCBE-developed July 2022 MBE, MPT, and MEE will not be required to be familiar with this term’s U.S. Supreme Court decisions. Available at https://admissions.wsba.org/allnews.action

[2] See Aaron Regunberg, How the Calvinball Supreme Court Upended the Bar Exam, The New Republic July 12, 2022 Available at: https://newrepublic.com/article/167032/dobbs-roe-bar-exam-calvinball

[3] Dobbs v. Jackson Women’s Health Org.,___U.S. ____  No. 19-1392 (2022). Kavanaugh Concurrence at 11. https://www.supremecourt.gov/opinions/21pdf/19-1392_6j37.pdf

[4] See Adam Liptak, The Right to Travel in a Post-Roe World, New York Times (July 11, 2022) available at https://www.nytimes.com/2022/07/11/us/politics/the-right-to-travel-in-a-post-roe-world.html

[5] See Press Release: Inslee Issues Directive Prohibiting State Law Enforcement Cooperation with Abortion-Related Investigations (June 30, 2022) https://www.governor.wa.gov/news-media/inslee-issues-directive-prohibiting-state-law-enforcement-cooperation-abortion-related

[6] Dobbs v. Jackson Women’s Health Org.,___U.S. ____  No. 19-1392 (2022) at 2

[7] See Leslie J. Reagan (Professor of History and Law at the University of Illinois, Urbana-Champaign) What Alito Gets Wrong About the History of Abortion in America, Politico (June 2, 2022) available at https://www.politico.com/news/magazine/2022/06/02/alitos-anti-roe-argument-wrong-00036174   (Reagan also explains “quickening” in the historical context. “If it were possible to eavesdrop on conversations among women and some doctors in early America, you might overhear the phrase ‘bringing on the menses.’ If a woman didn’t menstruate when expected, she was considered to be sick and action was required to bring her back to health. Women who had ‘a common cold’ — a euphemism for ‘obstructed’ menses — used a variety of methods, teas and concoctions to bring ‘their menses back.’ In other words, returning menstruation to its normal cycle was within the purview of a woman’s own self-health care and was not regulated by the state until after ‘quickening’ — the moment during a pregnancy when a woman could feel a fetus kick and recognized a life ‘stirring’ within her. Quickening occurred between the fourth and sixth month of pregnancy. Only after quickening was an induced miscarriage, an abortion, considered immoral and banned by law.”)

[8] “To justify its regulation, the government may not simply posit that the regulation promotes an important interest. Rather, the government must demonstrate that the regulation is consistent with this nation’s historical tradition of firearm regulation. Only if a firearm regulation is consistent with this nation’s historical tradition may a court conclude that the individual’s conduct falls outside the Second Amendment’s ‘unqualified command.’” New York State Rifle & Pistol Association Inc. v. Bruen .,___U.S. ____  No. 20-843 (June 23, 2022) at 2

[9] “An analysis focused on original meaning and history, this Court has stressed, has long represented the rule rather than some “ ‘exception’ ” within the “Court’s Establishment Clause jurisprudence.” Kennedy v. Bremerton School District .,___U.S. ____  No. 21-418 (June 27, 2022) at 4

[10] Joe Brandt, The Supreme Court Keeps Citing ‘History and Tradition.’ Whose History? NBC LXNews (June 24, 2022) https://www.lx.com/politics/the-supreme-court-keeps-citing-history-and-tradition-whose-history/54733/

[11] See Danny Westneat, The Myth at the Heart of the Praying Bremerton Coach Case (June 29, 2022) available at https://www.seattletimes.com/seattle-news/politics/the-myth-at-the-heart-of-the-praying-bremerton-coach-case/

Moments of Joy – Art in the Law Library

Tamara Hayes, Technical Services Librarian

Those who visited the downtown courthouse in the before times and entered on Third Avenue should be quite familiar with the murals that cover the first floor of the King County
Courthouse, but did you know there’s more public art to be seen in the building? In the Law Library we have over a dozen works by various artists throughout our space. When the courthouse and Law Library were remodeled back in 2004, the library staff worked with 4Culture to choose pieces that would t in our new space. We’ve added more pieces since the early aughts to fill even more of our large wall space.

Let’s take a tour of some of those pieces.

First, we’ll start at the reference desk where you’ll notice two traditional style rugs hanging on the wall. We get many questions and comments about these rugs. Most people assume they are old and precious, but the truth is they were bought out of necessity from a home goods store to tamper our voices from bouncing around the walls. I think they’ve served their purpose well in addition to looking like works of art.

Now let’s move on to the real art. The first two pieces I’d like to draw your attention to are the sister pieces by Michael Brophy called Past Present: King County Courthouse & Present Past: King County Courthouse. These pieces depict the changing view of the city through a window, presumably in the courthouse. These are the large gray scale pieces done in charcoal that are located on either side of the entrance. These two pieces were among the first to be commissioned for the remodel of the courthouse back in 2001.

When you first walk into the library and look to your left, you’ll see a large colorful piece by Patrick Siler called The Meeting. This lithograph depicts three men wearing hats gathered. This piece is interesting in that the frame isn’t just a frame but is part of the art. The frame is carved and extends the scene depicted. This is probably the most colorful of the pieces in the library.

Another of the first pieces to be noticed when lingering near the reference desk or circulation desk is “The Lawyer” or should I say Super Lawyer. This linocut by Katherine Aoki was inspired by the Powerpuff Girls and is part of a series called Women as Superheroes based on their vocational skills. This is a fun piece that depicts a woman lawyer flying over the city, business card in hand!

Located behind the computers next to the windows is a large design that looks much like a question mark. Patrick Holderfield’s Untitled #91 appears to incorporate watercolor as well as charcoal and colored pencil drawings. I’m certain this work of art was chosen to represent the fact that libraries, historically, are where people bring their unanswered questions.

If you head for the three conference rooms on the north end of the library, you’ll pass a photo of a stack of red books. On the only non-red book spine it reads “People are Important.” This print is by Zack Bent and is called Preaching to the Choir. Next, you’ll run into a display case that holds Black Law Spiral, an intricate glass sculpture by Ginny Ruffner. This is the only sculpture in the library and one of my favorites. Just down the hallway from the sculpture is what I like to call the two heads. These two pieces depict the back of two bald individuals with different colored backgrounds. Both untitled pieces are by LA artist Salomon Huerta. The two heads are among the latest pieces added to our walls.

Tucked away on the wall heading towards the Washington state collection, you’ll see a large bright colorful piece called Hardangerfjord by Suzanne Caporael. Ms. Caporael was inspired by freighters in a Norwegian harbor and I think once you understand that you’ll be able to see the movement of the water in the lithograph and maybe even imagine boats bobbing in the water.

Near the state Supreme Court Briefs, you’ll find a painting of a teacup waiting to be filled by the steaming blue and white jug and maybe a cherry as a sweet treat. This painting, titled Jug, was done by local husband and wife duo Julie Paschkis & Joe Max Emminger. Though each artist has their own style they were able to collaborate and create a piece that looks seamless

Finally, I want to draw your attention to a few pieces that are tucked away in conference rooms. The first, a charcoal drawing by Douglas Cooper, can be found in our Legal Research and Training Center. Mr. Cooper is also responsible for the murals on the first floor of the courthouse. The drawing is called South Seattle Bridge and depicts the Jose Rizal Bridge looking towards Elliott Bay. In conference room one, you’ll find a Brad Brown piece called Third Drift 46-54 which is made up of nine squares that are composed of different torn pieces of paper. In conference room six there’s a photo of a fountain surrounded by a fence with what looks to be signs leaning against it. Fountain #1 by Jeff Krolick reminds me of a reflecting pool where you might want to sit and enjoy the sunshine for a bit.

I once heard art described as a moment of joy in a home. We hope the next time you’re in the library you take a moment to enjoy a couple of the art pieces in our space. Keep an eye on our website for a video tour of the law library’s art collection. www.kcll.org.

Tamara Hayes is the law library’s technical services librarian and in-house art aficionado. She has worked at the library for 20+ years and is the glue that holds the place together.

Fantastic Beasts of Administrative Law and Where to Find Them

Barbara Engstrom, Executive Director, King County Law Library

Unless the focus of one’s practice is a heavily regulated area of law, most attorneys don’t engage with Washington administrative law very often. If the occasion arises where one must enter this murky realm, fear and trepidation can ensue. Not to worry, the following tips will guide you to resources to find and tame the fantastic beasts of Washington administrative law.

Is it Lurking in the Shadows?

Whether or not regulatory law impacts a legal issue can sometimes be difficult to determine. A good rule of thumb at the outset of any research project is to check whether there is a statute that applies. If there is, you’ll want to make sure you are aware of any related regulations. The fastest way to do this is to use an annotated code. Annotated codes are like the Room of Requirements [1] to aid a seeker in need. If your research question involves a controlling statute, an annotated code can quickly give you a bird’s eye view of the statute in context . While most people use annotated codes to find case law discussing a statute, the annotations also include other information like relevant law review articles, Washington treatise sections, legislative history and commentary, and … applicable regulations.

You may be tempted to skip this step, but remember, when passing laws, legislators often draft the language in broad brushstrokes and task administrative agencies with effectuating the details. In essence, legislators create the broad statutory mandate and rely on agency expertise to fill in the gaps.

Do You Have a Map?

The reason that legislatures delegate rulemaking authority to administrative agencies is because the issues are complicated and require professional, subject matter expertise. Similarly, for researchers, delving directly into primary regulatory sources can be a fool’s errand. A better bet is to use the Marauder’s Map [2] of secondary research resources to help you uncover what may otherwise appear hidden to the naked eye. For example, while some Washington administrative regulations stand on their own, others work in tandem with federal regulations. Think securities or environmental regulations. A good secondary source will not only help you analyze the applicable Washington regulations but will also help you understand how federal regulations may fit into the context.

I generally start with the agency website. While the first few layers are usually intended for lay persons, more technical information can be found by delving deeper or using advanced searching. Next, I search the WSBA deskbooks, Washington Practice, and other Washington specific treatises before moving on to general jurisdiction treatises. If you need contemporaneous discussion of regulations from when they  were created, law review articles from UW, SU, and Gonazga law schools and bar bulletin articles from that time period can often prove helpful, as can CLEs.

Do You Understand the Wizarding World?

Just like the Ministry of Magic [3], agencies wield quite a bit of power. They create regulations (a primary source of law), hold judicial proceedings, and can mete out fines and punishments. In order to effectively research administrative law, it’s good to have a baseline understanding of the administrative process. There are many mechanisms to keep agency powers in check, the most important of which is that agencies must have authority handed down to them before they can create rules. Rulemaking can be triggered by 1) a mandate from the state legislature, 2) a federal law or rule, 3) a court decision, or 4) a petition for rulemaking. Washington’s state Administrative Procedure Act ensures that the agencies are acting within the scope of their delegated authority for rulemaking and are fair and impartial in their adjudications.

The Washington Administrative Law Practice Manual is the go-to resource for understanding the intricacies of the rulemaking process and agency adjudications. For example: Can the agency’s proposed rule differ substantially from the final rule? See Chapter 7.06 [L]. Is hearsay allowed in administrative adjudications? See Chapter 9.05[E][1].

From What Swamp Did It Hatch?

Sometimes you’ll want to research the history of a regulation. While a Time Turner [4] would be nice, with a little bit of effort you’ll do just as well on your own. Much of your Washington regulatory history research will be done in the Washington State Register (WSR). Fortunately, most research from the mid-1990s forward can be done on-line. The Washington State Legislature’s website https://leg.wa.gov/ integrates regulatory history into Washington Administrative Code (WAC) entries. Just look for the bright yellow link that says, “Agency filings affecting this section” and you’ll be directed to the WSR entries for the proposed and permanent rules for the WAC you are researching.

A special point to consider. When doing a regulatory history, be sure to look for the Concise Explanatory Statement (CES). The concise explanatory statement is the method by which an agency ensures that it considered all the public comments/arguments as required by the Washington APA. It has been said that the CES is probably the most important document an agency must prepare in the rule-making process. [5] The CES is critical for determining whether agencies acted arbitrarily or capriciously when adopting the rule. Many agencies post their Concise Explanatory Statements on their websites. If you can’t find the CES you are looking for, just contact the agency and request it. If you commented on a rule during the rule-making process, the agency should automatically send you a copy.

Accio Law Library!

If you need more help researching Washington regulations or any other topic, use your summoning spell to contact the law library. Don’t worry, we don’t have a Restricted Section [6] of the dark arts and Madame Pince [7] will not be breathing down your neck when you use our resources. Email us at services@kcll.org and let us help you find and tame the fantastic beasts of Washington administrative law. In the words of Albus Dumbledore: “Help will always be offered to those who ask for it.”

1 See Harry Potter Glossary, available at https://www.bloomsbury.com/uk/discover/harry-potter/harry-potter-fun-stuff/harry-potter-glossary/ (Come and Go Room. Also known as the Room of Requirement, it is on the seventh floor of Hogwarts, opposite the Barnabus the Barmy tapestry. The room is sometimes there, sometimes not. It can only be entered by people with a real need, who must walk past the part of wall three times while concentrating on what they need. The room will then appear fully equipped with all their immediate requirements.)

2 Id (Marauder’s Map. A map that shows all the secret passageways and the current whereabouts of everyone in Hogwarts).

3 Id (Ministry of Magic. Government agency that tries to keep witches and wizards secret from non-magical people.)

4 Id (Time Turner. Hourglass that allows the wearer to travel back in time.)

5 See Washington Administrative Law Practice Manual [7.06][M] citing Aviation West Corp. v. Dep’t of Labor and Indus., 138 Wn.2d 413, 980 P.2d 701 (1999)

The Lies of Executive Order 9066

Barbara Engstrom, Executive Director, King County Law Library

February 19, 2022 marked the 80th anniversary of FDR’s signing Executive Order 9066, which authorized the forceable removal and incarceration of 120,000 Japanese Americans in concentration camps during World War II. Most of us were likely taught about the internment as part of our history curriculum in middle school or high school and read Korematsu in law school, but the full picture of how the internment came to fruition and the actual story behind how it came to be discredited is not as well known.

In order to help illuminate this history, the King County Law Library, in conjunction with the King County Bar Association, and the Asian Bar Association of Washington will present a free CLE with a screening of Alternative Facts: The Lies of Executive Order 9066 followed by a panel discussion with filmmaker Jon Osaki, King County Superior Court Presiding Judge Patrick Oishi, Professor Lori Bannai of Seattle University School of Law’s Korematsu Center, and moderated by Serin Ngai from Sound Family Solutions.

Filmmaker Jon Osaki’s documentary, Alternative Facts: The Lies of Executive Order 9066, takes an in-depth look at the legal rationale and evidence that undergirded the issuance of E.O. 9066 and Korematsu v. United States,1 the subsequent U.S. Supreme Court Case that upheld its constitutionality. Using historical footage, documents, and interviews, Alternative Facts covers the forces and players that brought E.O. 9066 into being, the work of researchers who uncovered evidence unmasking the manipulated record submitted to the Supreme Court in Korematsu, and the work of the attorneys pursuing coram nobis cases to vacate the convictions of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui.

For me, one of the most eye-opening aspects of the documentary was the role that then California Attorney General, gubernatorial candidate, and subsequent U.S. Supreme Court Chief Justice Earl Warren played in the internment. While, as a state official, he didn’t have direct impact on the decision to establish E.O. 9066, he campaigned on his support of removal of Japanese Americans from California, and as Governor advocated for not allowing interned citizens of California back into the state after their release.

Even after Warren became a civil rights icon for Brown v. Board of Education and other civil liberties cases, he never publicly disavowed his support of the wartime exclusion of Japanese Americans. In his memoirs, published posthumously, Warren did, however, express regret. 2  The most interesting figure of the film, however, is Aiko Herzig-Yoshinaga. An honors student, Aiko was called into her principal’s office in 1942 and told “You don’t deserve to get your high school diploma because your people bombed Pearl Harbor.”3 She quickly married her high school sweetheart to avoid being separated when they were forcibly removed from their homes and imprisoned.

By 1943, Aiko was 18 years old with a newborn baby and living 1,800 miles from her parents, who were imprisoned in Jerome, Arkansas. After the war and her release, she moved to New York and began working with anti-war protests and other activist groups including the Asian Americans for Action. This work and the people she met, including Japanese-American activist Michi Weglyn, spurred her to start thinking more critically about the injustice of her experience in the concentration camps. After remarrying and moving to Washington D.C., Aiko began researching in the National Archives to find out more about her family’s incarceration.

After first finding personal files — school, medical and other records related to her family’s time in camp — she was told of other government records concerning the wartime incarceration. “I started to examine those records, and they grabbed me,” she said in a 1997 interview. Joined by Jack Herzig, by then her husband, she dove into the vast web of documents recording the events leading up to the incarceration, implementing it and then defending it.4

Working independently, Aiko kept meticulous records of her findings, indexing connections between disparate documents. Because of the knowledge acquired during her independent research, when the Congressional Commission on Wartime Relocation and Internment of Civilians was created in 1981, Aiko was hired as a researcher.

A 1943 official War Department report by General John DeWitt provided the justification for the removal and imprisonment of Japanese Americans. During Aiko’s research she came across an unbound version of the DeWitt report with handwritten notes in the margins. Upon examining this report, Aiko soon recognized that this was DeWitt’s original report that countered the official rationale for internment. Another researcher, attorney Peter Irons, had been able to find other documents that showed that the War Department had suppressed evidence and insisted on revisions to DeWitt’s original report to push their justifications for internment, but all copies of the original report had been ordered to be destroyed. Aiko, however, had heard rumors that one copy had gone missing. Because of her meticulous knowledge of the archive, she immediately understood that this was the missing original report and understood its significance as a smoking gun.

Her finding became key evidence in the commission’s report, “Personal Justice Denied,” published in 1982 and ’83. It concluded that the “internment” was based on “race prejudice, war hysteria and a failure of political leadership.” (Herzig Yoshinaga pushed the commission, and later the public, to use the term “concentration camps” to describe the experiences of Japanese-Americans, a majority of them United States citizens, imprisoned without cause or trial, behind barbed wire, surrounded by watchtowers and armed guards.)5

The Personal Justice Denied commission report also had broader impacts. It was instrumental in President Ronald Reagan’s issuing an apology in 1988 which included reparations of $20,000 for each survivor. Aiko’s work also enabled Peter Irons and several co-counsel including Dale Minami and Don Tamaki to bring coram nobis cases to overturn the convictions of Fred Korematsu, Gordon Hirabayashi, and Minoru Yasui. The film features interviews with Peter Irons, Dale Minami, Don Tamaki, and several of the other attorneys who worked on the coram nobis cases. Our CLE panelist, Lori Bannai, was also one of the attorneys on the coram nobis team. A recent law school graduate at the time, she had the opportunity to work on the case of a lifetime.

Please join us for the screening of this powerful film and for what I’m sure will be an equally enlightening panel discussion on Friday, April 29 and May 6, 2022. For information about registering visit https://kcll.org/classes[1]at-the-law-library/classes/cles/.

1 323 U.S. 214 (1944).

2 See G. Edward White, The Unacknowledged Lesson: Earl Warren and the Japanese Relocation Controversy, 55 Virginia Quarterly Review (1979).

3 See Maggie Jones, Aiko Herzig Yoshinaga: From Deep in the Archives, She Brought Justice for Japanese Americans, New York Times Magazine (Dec 27, 2018) available at https://www.nytimes.com/interactive/2018/12/27/magazine/lives-they-lived-aiko-herzig[1]yoshinaga.html

4 Id.

5 Id.

Wait! That’s Mine: Getting Stuff Back with Replevin

By Barbara Engstrom and Stephen Seely

For attorneys, replevin is likely not a question that comes across their desks very often. At county law libraries however, “How do I get my stuff back?” is asked with regularity. In order to help our patrons wend their way through this process, our intrepid Outreach Services Attorney, Stephen Seely created a self-help replevin packet. In this column, Stephen and I chat about all things replevin.

BE: Stephen, I know that creating the replevin self-help packet was a very involved process. Could you explain a bit about what replevin is and what it remedies?

SS: Replevin is the process used to get personal property back. If my neighbor has taken my lawnmower and won’t return it, I can sue him to determine who the rightful owner of the lawnmower is and I can use the replevin process to ask the court to give me temporary possession of the lawnmower until the ownership is determined at end of the case. (Or, if certain conditions are met, I can be declared the owner and get permanent possession using an expedited default judgment that is part of the replevin statute.)

BE: Are replevin cases heard in district court or superior court? I know that pro se litigants always want to use the small claims process. Is there any path to replevin via small claims court?

SS: Replevin cases can be heard in either district or superior court. The value of the personal property will decide which court you’ll end up in. (In District Court the value of the demand cannot be more than $100,000. In Superior Court the value of the demand must be at least $300.) Replevin isn’t available in small claims court.

BE: I was curious about the types of property that are the subject of replevin actions. I did a quick skim of the Washington replevin caselaw on Westlaw. There was a surprisingly wide variety of subject matter in the replevin suits including a Ferrari, stock certificates, drilling equipment, furniture suites, and stolen goods held by a pawnbroker. Granted, these are all cases that have made it up to the appeals level and tend to be higher value items. What subject matter do you most commonly see in your day-to-day work?

SS: I don’t see replevin very often, but when I do it’s usually pets. People generally decide that the time, effort, and expense of replevin isn’t worth it to recover their more common belongings. But, people seem to be ready to crawl through broken glass to get their pet back. The typical scenario is a couple who have been dating and living together are splitting up, there’s a dispute about who owns the pet, and the person who doesn’t currently have the pet wants possession of it.

BE: Could you give a quick overview of the replevin process in King County? Looking through the packet, it appears that several bonds are required to move the suit forward. Can you explain how and when the bonds come into play?

SS: Sure. The plaintiff files a lawsuit to determine ownership and recover the property. Then the plaintiff requests a show cause hearing on the issue of replevin and attaches a declaration explaining why the plaintiff should have temporary possession of the property. The Ex Parte Commissioner will decide if a show cause hearing will be held and issue the order to show cause. The show cause hearing will be held before your assigned trial judge.

At the show cause hearing the defendant will have to explain why they should keep temporary possession the property. Then one of three things happens: (1) the defendant keeps temporary possession of the property; (2) the plaintiff gets temporary possession of the property; or (3) the plaintiff gets a default judgment and permanent possession of the property.

With option one, the defendant keeps temporary possession the property and the case carries on like normal.

With option two, the plaintiff gets temporary possession of the property but will need to pay two bonds:

• The first bond is called the replevin bond (a.k.a., a delivery bond). It’s claimable by the defendant if the plaintiff does not act promptly in concluding the case or the replevin was wrongfully requested. The court can waive this bond under certain circumstances listed in RCW 7.64.035(1).
• The second bond is the Sheriff indemnity bond. It’s claimable by the Sheriff if the defendant later sues the Sheriff’s Office. The court cannot waive this bond.

The plaintiff then works with the Sheriff’s Office to have them seize the property and return it to the plaintiff. Once the plaintiff has temporary possession of the property, they complete their case to prove they are the true owner and get permanent possession of the property.

With option three, the plaintiff can get a default judgment under certain circumstances listed in RCW 7.64.035(3). This option finds the plaintiff to be the true owner of the property, gives the plaintiff permanent possession, and allows the Sheriff to seize the property and return it to the plaintiff. All in one nice concise source of legal authority.

BE: How does the valuation component of replevin work? Is compensation for the loss of use of the property available?

SS: Valuation can be one of the trickiest parts of a replevin case. It is important because the ballpark value of the bonds can be up to double the value of the property. But it can be very tricky to establish a reasonable value for some items (such as pets or sentimental heirlooms). People might turn to wholesale values, animal breeders, or start digging through their receipts in an effort to set a value.

Yes, damages are available for loss of use. RCW 7.64.035(3) provides for “[the value of the property] if possession cannot be obtained, damages, court costs, reasonable attorneys’ fees, and costs of recovery.”

BE: I know that you did a really deep dive into the replevin process. Were there any cases that you found intriguing?

SS: Intriguing might not be the right word, but I got a good chuckle when a court in Westchester County, New York, determined that when valuing a dog “depreciation is no factor at all; manifestly, a good dog’s value increases rather than falls with age and training.”1 Even if you can’t teach an old dog new tricks, they’re still a fantastic return on investment.

BE: Any last bits of sage wisdom for an attorney embarking on a replevin action?

SS: Yes, watch out for the re-delivery bond. There’s an optional bond called a re-delivery bond. It’s paid by the defendant to offset the plaintiff’s replevin bond and it allows the defendant to keep temporary possession of the property. It’s claimable by the plaintiff if the plaintiff wins the case and the defendant doesn’t give back the property or pay out the damages awarded to the plaintiff. The defendant can post a re-delivery bond up until the time the Sheriff’s Office hands the property off to the plaintiff.

BE: Thanks for that tour of all things replevin Stephen!

If you have questions on replevin or any other legal research issues be sure to contact the law library. You can email us at services@kcll.org. To find out more about the replevin packet or any of the other packets available from the King County Law Library visit our website https://kcll.org/forms-main/.

1 Stettner v. Graubard, 82 Misc. 2d 132, 133, 368 N.Y.S.2d 683 (N.Y. Town Ct. 1975).