Category: From the Director

FROM THE DIRECTOR: SEPTEMBER 2022

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/

FROM THE DIRECTOR: August 2022

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.

FROM THE DIRECTOR: June 2022

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)

FROM THE DIRECTOR: APRIL 2022

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.

FROM THE DIRECTOR: MARCH 2022

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).

FROM THE DIRECTOR: FEBRUARY 2022

Open the Pod Bay Doors HAL

Barbara Engstrom, Executive Director, King County Law Library

While the public patron computers at the law library weren’t quite as old as HAL from 2001: A Space Odyssey, they were close. The law library’s first public computers were purchased for the grand opening of the Kent branch in the Regional Justice Center in 1997. It took a few years for Seattle to catch up but by 2000 the KCBA had donated a few PCs that were located on the Seattle service desk counter and had access to Westlaw, KCBA Deskbooks and CD-Law. Remember when we used to do case law research using CD-ROMs?

In 2002, the library was awarded a Gates Foundation grant to purchase computer equipment. Astoundingly, this was the last time that the law library was able to purchase new public patron computers.

“The 9000 series is the most reliable computer ever made. No 9000 computer has ever made a mistake or distorted information. We are all, by any practical definition of the words, foolproof and incapable of error.” – HAL 9000.

The grant enabled the law library to set up a technology training room where patrons could learn not only how to research the law on the newfangled Internet, but also learn about using Westlaw and other databases. We have a long-time public patron who often mentions that he has been trained on Westlaw and still has his Westlaw certificate (from a training class in the early aughts) to prove it. With the new computers, the law library moved forward on a bold new path of legal research technology. Without a tear shed, the CD-ROM method of case research soon became obsolete.

“I know I’ve made some very poor decisions recently, but I can give you my complete assurance that my work will be back to normal. I’ve still got the greatest enthusiasm and confidence in the mission. And I want to help you.” – HAL 9000.

The public patron computers most recently in use were installed in 2013 at the ripe old age of 7 after having outlived their useful purpose as law library staff computers. The law library managed to keep them ticking with gum and string for 18!! years but it was clearly only a matter of time before the wheels came off.

HAL 9000: “Hello Frank, can I have a word with you?

Frank Poole: “Yes, HAL, what’s up?”

HAL 9000: “It looks like we have another bad A.O. unit. My FPC shows another impending failure.”

New Computers at KCLL!

I can’t think of too many good things that have come out of the pandemic, but one silver lining was that the law library was awarded a $5000 grant from the American Recue Plan Act (ARPA) allocated for museums and libraries. The ARPA funding allowed the library to embark on a project to replace our

well-loved (realtor-speak for almost dead) public patron computers with brand new computers. As noted above, this is the first time we’ve been able to purchase new public machines since 2002.

While the ARPA grant enabled us to move the ball forward on replacing the public patron computers, it only covered a minor portion of the cost of replacing all the public PCs in both the Seattle and Kent branches. The bulk of the funding came from the generous support of the King County Law Library Foundation. To all of you who have donated to the KCLL Foundation, thank you!

A Very Special Thank You to Eric Long

I would like to make a special acknowledgement of a particular donor without whose generous support this long deferred project would not be possible. Eric Long, is a local CPA who attended several of our self-represented litigant workshops. As Eric has said, navigating the complexities of the legal system brings to mind his work on behalf of his clients with the IRS. He knows the difficulty that even educated people have navigating complex administrative structures and is keenly aware of how insurmountable representing oneself can feel to people who are not familiar with the legal system. Eric considers the staff, services, and workshops at the King County Law Library invaluable tools for shining a light in a dark tunnel of systemic injustice. As Eric notes, many people may assume that a donation to the law library goes to further enriching lawyers, in reality, however, much of the work of the law library that he has experienced revolves around helping the public to understand the legal process. “There is no justice until everyone has an equal playing field. So, I will continue to give to the law library.” We thank Eric for his incredibly generous donations to the library and his on-going support of our mission – Without access to information, there is no justice.

Come Say Hello

If you happen to be in either the Seattle or Kent courthouses and need to do some legal research on Westlaw, look up a jury verdict, use SupportCalc, or run a few quick prints please come by and say hello to our new computers. If you are still working remotely and have a legal research question, be sure to visit our website www.kcll.org or email us at services@kcll.org

While we’re incredibly happy to have our new computers up and running, after 18 years of (almost) uncomplaining service our relegated computers may have different ideas.

Dave Bowman: “Open the pod bay doors HAL”

HAL 9000: “I’m sorry Dave, I’m afraid I can’t do that.”

FROM THE DIRECTOR: JANUARY 2022

Fighting Word(s): Using Microsoft Word More Effectively in Your Law Practice

Barbara Engstrom, Executive Director, King County Law Library

There are certain documents that I find drafting on Microsoft Word unendingly frustrating. From unwanted autocorrections to automated formatting issues, it can often feel like a wrestling match to get a document properly formatted. I’m certain that most of you have similar experiences. In good news, there are techniques that can help you improve the efficiency of drafting legal documents on Word. Ross Zimmerman, our Outreach Services Librarian, teaches a CLE to help attorneys tame the beast that is Word and will share some tips in this column. Look for his upcoming CLE, Microsoft Word for Attorneys.

BE: Except for the brave souls trying to make do with Google Docs, it seems like most attorneys are already using Word for legal drafting. How are they doing it wrong?

RZ: Word is a great product, a very capable product—but many of its very helpful capabilities are hidden behind menus or are otherwise obscured. Technically you could just use Word as a simple word processor, like you might use Notepad or TextEdit. Alternatively, you could use Word as an advanced user, with specialized formatting and user-focused workflows. Is the former group’s usage wrong? Perhaps not, if all you need is text on a page. But most attorneys I work with want their documents to look a certain way but have deadlines and don’t want to futz around with Word for hours. And the important part is that advancing your Word skills isn’t hard, it just takes some time to dig through the menus and set the program up to meet your requirements. It’s an investment. Learning some advanced techniques (which really means understanding which functions are under which menu) now, will save you much more time later.

BE: You cover a lot of ground in the class. Give us a quick run-down of what you discuss.

RZ: It’s a lot to fit in an hour. I start with the Why – why bother? I already touched on that – but let’s just say it’s really about feeling some level of proficiency. Word used to make me feel like an idiot, and that’s not a good feeling. To get past that, my class centers on two aspects of a Word document: the formatting of the text and the formatting of the document itself. For the latter piece, we look at how documents are saved, and how they can be saved in other formats. Many people don’t know that Word can be used to edit PDF documents. So, there’s that technical side, as well as concepts like metadata. Word documents contain information about the amount of time you’ve worked on it, about the author, and other information that you might not want shared. There are ways to remove or edit metadata. The other portion of the class is formatting the text of your document: using the “Styles” functionality to easily template out your work. Styles unlocks instant tables of contents and tables of authorities. This sounds like a lot, I know, but you’ll see that it’s simply a matter of clicking your mouse a few times.

BE: What are the top three techniques that you recommend attorneys immediately start using on Word.

RZ: I already mentioned Styles but that is my #1 technique. Styles makes it very easy to make documents look the way you’d like. I don’t want to think about the dozens of hours of my life I’ll never get back because I was stuck in the weeds formatting Word documents, when I could have been using Styles to streamline my processes. Another technique that I touch on in the class is using key commands to make certain tasks more expedient. Off the top of my head, holding down Ctrl and K lets you insert a hyperlink. Holding down Alt and then typing 21 inserts the section symbol (§). Then there’s also a handy button to make your text ALL CAPS, Sentence casing, or Capitalize Every Word. Lastly, this might be cheating since it’s not really a technique per se, but what’s crucial is having a desire to understand. I spent years wandering in the wasteland of Word complacency, just scraping by, and making documents that were just serviceable. But once I buckled down and spent a few hours understanding why the program functions as it does, I’m all the better for it. You can understand Word!

BE: Are there resources either in print or online that you would recommend for attorneys to learn more about using Word effectively?

RZ: In crafting this CLE webinar, I used a book series called The Lawyer’s Guide To Microsoft Word (available at both KCLL locations) and the very thorough Help & Learning website provided by Microsoft. Truthfully though, in my own life I’ve relied on a lot of YouTube videos. If you’re having a particular issue with Word, or if you want it to do something unique, the Good News/Bad News is that none of us are that unique, someone else out there has already had that problem, and they’ve already made a How To video on YouTube! I’ve also heard of a local law library that offers compelling CLE webinars — that sounds immensely helpful…

BE: Nice one Ross – I’ll take that as a hint to plug your upcoming Microsoft Word for Attorneys CLE which will be offered as a webcast on February 15th. For more information on the class or to register go to https://kcll.org/classes-at-the-law-library/classes/cles/

As always, if you need more information on using Word, CLEs, or any other legal research issue, feel free to contact the King County Law Library at services@kcll.org.

FROM THE DIRECTOR: NOVEMBER 2021

Ransomware Attacks and Your Practice

Barbara Engstrom, Executive Director, King County Law Library

Ransomware attacks on Colonial Pipeline, JBS (the world’s largest meat processing plant), and various hospitals and schools became major news stories over the last year. Law firms were no strangers to cybersecurity risk either. The first well-publicized law firm attack was on DLA Piper in 2017. In early 2020 five law firms were attacked in short order, with three firms hit in a 24-hour period in February.¹ There were high profile attacks at the New York firm of Grubman, Shire, Meiselas & Sack in May of 2020, the Chicago firm Seyfarth Shaw in October of 2020 and as recently as this July, Campbell Conroy & O’Neil was attacked.² Of course, these are the attacks that received media attention; presumably many more were never reported or went under the media radar.

My assumption has always been that large law firms are the main targets for ransomware attacks. The findings from the Q1 2021 Coveware Quarterly Ransomware Report had some very troubling statistics conveying that is not the case. The Coveware report delivered a grim cybersecurity assessment for the current small and medium law firm model.

The most notable change in industries impacted by ransomware attacks in Q1 was the Professional Services industry, specifically law firms. Small and medium sized law firms continue to succumb to encryption ransomware and data exfiltration extortion attacks. (Emphasis added.) Unfortunately, the economics of many small professional service firms do not encourage or enable adequate cyber security.³

According to the report, in the first quarter of 2021 the average ransom payment was $220,298 (an increase of 43% from Q4 2020), and the median ransom payment was $78,398 (an increase of 59% from Q4 2020). The threat by hackers to release stolen data increased to 77%, a 10% change from Q4 2020. The average downtime was 23 days, also a 10% increase from Q4 2020.

Attack Vectors

For small and medium law firms, vulnerabilities associated with Remote Desktop Protocols (RDP) and phishing emails were by far the largest attack vectors. While the switch to remote work opened law firms up to new paths of exposure, 86% of ransomware attacks still begin with a person clicking on a virus-laden email.⁴ Other attack vectors included passwords that were insufficiently strong, software that was not updated, and insufficient cybersecurity training and audits.

Ethics Considerations

In addition to the business operations and reputational harm that ransomware attacks cause for any business, lawyers are subject to the additional burden of potential ethics violations. In their 2019 report on cybersecurity, the ABA delineated several RPCs implicated in a cybersecurity breach. The report notes that Comment 8 to the competency requirements of Model Rule 1 clearly requires competency in cybersecurity. “To maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology.” The report also notes that with much client communication done through email, Model Rule 1.4’s requirement to keep clients reasonably informed would require that the channels of communication are secure. The report also points out the cybersecurity implications of Model Rule 1.6’s requirement to “make reasonable efforts to prevent the inadvertent or unauthorized disclosure of, or unauthorized access to, information relating to the representation of a client.”⁵

The report also discusses two relevant ethics Opinions. ABA Formal Opinion 477, which discusses special security precautions to protect against the inadvertent or unauthorized disclosure of client information, lists seven factors to consider when determining the appropriate level of cybersecurity: (1) the nature of the threat; (2) how confidential client information is stored and sent; (3) the use of reasonable electronic security measures;(4)how electronic communications should be protected; (5) the need to label client information as privileged and confidential;(6) the need to train lawyers and nonlawyer assistants, and (7) the need to conduct due diligence on vendors who provide technology services.⁶

ABA Standing Committee on Ethics and Professional Responsibility Formal Opinion 483, “Lawyers’ Obligations After an Electronic Data Breach or Cyberattack,” (October 17, 2018) states “the potential for an ethical violation occurs when a lawyer does not undertake reasonable efforts to avoid data loss or to detect cyber-intrusion, and that lack of reasonable effort is the cause of the breach.” The opinion further states that “As a matter of preparation and best practices, however, lawyers should consider proactively developing an incident response plan with specific plans and procedures for responding to a data breach.”⁷

Advisability/ Legality of Ransomware Payments

After being forced to shut down its operations, Colonial Pipeline paid a $4.4 million ransom (though they later were able to recover $2.3 million of the Bitcoin payment). JBS paid an $11 million ransom as the domino effects of the attack rattled the meat processing and restaurant industries.

While there may be situations where paying a ransom is the least bad option, many cybersecurity experts take a very dim view of that choice. The Coveware Q1 2021 report had an interesting take:

Over hundreds of cases, we have yet to encounter an example where paying a cyber criminal to suppress stolen data helped the victim mitigate liability or avoid business / brand damage. On the contrary, paying creates a false sense of security, unintended consequences and future liabilities. Coveware’s position remains unchanged and we advise victims of data exfiltration extortion to assume the following:

      • The data will not be credibly destroyed. Victims should assume it will be traded to other threat actors, sold, misplaced, or held for a second/future extortion attempt.
      • Exfiltrated data custody was held by multiple parties and not secured. Even if the threat actor deletes a volume of data following a payment, other parties that had access to it may have made copies so that they can extort the victim in the future.
      • The data may be deliberately or mistakenly published before a victim can even respond to an extortion attempt.
      • Complete records of what was taken may not be delivered by the threat actor, even if they explicitly promise to provide such artifacts after payment.⁸

While laws such as the Computer Fraud and Abuse Act and the Foreign Corrupt Practices Act touch on some of the issues involved in ransomware payments, there is no overarching statute that bans payment of ransom for a cyberattack. There is movement on both the federal and state levels to create legislation to ban ransomware payments. New York (Senate Bill 6806A), North Carolina (House Bill 813), Pennsylvania (Senate Bill 726) and Texas (House Bill 3892) all considered legislation that would prohibit the payment of ransom.⁹ Those who oppose legislation maintain that banning payments may cause unforeseen problems and do more harm than good to the victims. Legislative bans may also incentivize not reporting cyberattacks to law enforcement, potentially leading to further extortion.¹⁰

Cyber Liability Insurance

According to the ABA 2020 Cybersecurity Report survey, the number of firms investing in cyber liability insurance is steadily increasing. 36% of survey respondents reported carrying cyber liability insurance in 2020 which is up 10% from 2017. Interestingly, firms in the 10-49 attorney range reported a higher percentage of coverage (40%) than firms with 100+ attorneys (38%). 36% of firms with 2-9 attorneys and 33% of solo attorney reported coverage.¹¹

As with all insurance, the devil is in the policy details, but ransomware attacks have layers of complexity and may have repercussions that are not immediately discovered or covered. “Cyber liability policies generally require prompt notice. Most also require consent before engaging incident response and security firms as well as other professionals and vendors needed to respond to the attack and restore the company’s network. And many (but not all) cyber liability policies require prior consent to make a ransom payment.” ¹²

Best Practices for Law Firm Cybersecurity

So, what can you do to protect your firm from ransomware attacks? A recent roundtable discussion of the impacts of the Microsoft hack on law firms suggested the following:

Create a security-first mindset – “While top-down mandates from management are an important component, the entire environment should be one that recognizes the preeminent importance of stressing to the entire organization that security of the clients’ data is a key component of a professional, confidential relationship.”

Establish safety protocols for transferring files – “Each transfer is a potential point of vulnerability that requires a secure method to prevent unauthorized access.”

Create and maintain an ongoing security process – “Fundamentally, law firms need to assess the state of their cybersecurity program, create a remediation plan to close any gaps, execute that plan and then repeat this process on at least an annual basis. Cybersecurity is process-oriented, and requires management to make it a priority to keep the firm—and the firm’s clients—as reasonably safe as possible.”

Cover the Model Rule 1.6 basics – “Such reasonable steps include using current virus and malware scanners and firewalls, regularly installing patches and updates, using cryptographically strong passwords, routinely replacing default passwords on networks, avoiding risky software downloads from the Internet, eschewing the use of public cloud providers or file-sharing services for sharing documents, avoiding the use of web-based email services and public Wi-Fi, and training employees to recognize deception (“phishing”) attacks.”¹³

The Law Library is Here to Help

If you’d like to learn more about the legal implications of ransomware attacks on law firms, the law library has databases and resources to help. Feel free to reach out with questions on this or any other topic at services@kcll.org

References

1 See AJ Shankar, Ransomware Attackers Take Aim at Law Firms, Forbes (Mar 12, 2012) available at https://www.forbes.com/sites/forbestechcouncil/2021/03/12/ransomware-attackers-take-aim-at-law-firms/?sh=49af643aa13e

2 See AJ Shankar, Ransomware Attackers Take Aim at Law Firms, Forbes (Mar 12, 2012) available at https://www.forbes.com/sites/forbestechcouncil/2021/03/12/ransomware-attackers-take-aim-at-law-firms/?sh=49af643aa13e See also Brian Fung, Ransomware Hits Law Firm with Dozens of Major Corporate Clients, CNN Business (July 19 2021) available at https://www.cnn.com/2021/07/19/tech/ransomware-law-firm/index.html

3 Coveware Quarterly Ransom Report, Q1 2021, Ransomware Attack Vectors Shift as New Software Vulnerability Exploits Abound. (April 26, 2021) available at https://www.coveware.com/blog/ransomware-attack-vectors-shift-as-new-software-vulnerability-exploits-abound#companies

4 See Jim Ash, Prepare Now to Thwart Ransomware Attacks, Florida Bar Journal (Jun 28, 2021) available at https://www.floridabar.org/the-florida-bar-news/prepare-now-to-thwart-ransomware-attacks/

5 See John G. Loughnane, Techreport 2019: 2019 Cybersecurity (Oct 16, 2019) available at https://www.americanbar.org/groups/law_practice/publications/techreport/abatechreport2019/cybersecurity2019/

6 Id

7 Id

8 Id at 3.

9 See Cynthia Brumfield, Four States Propose Laws to Ban Ransomware Payments, CSO Spotlight (Jun 28, 2021) available at https://www.csoonline.com/article/3622888/four-states-propose-laws-to-ban-ransomware-payments.html

10 See Alvar Maranon & Benjamin Wites, Ransomware Payments and the Law, LawFare (Aug 11, 2021) available at https://www.lawfareblog.com/ransomware-payments-and-law

11 See John G. Loughnane, Techreport 2020: 2020 Cybersecurity (Oct 19, 2020) available at https://www.americanbar.org/groups/law_practice/publications/techreport/2020/cybersecurity/

12 See Ashley Jordan and J. Andrew Moss, Don’t Make the Cure Worse Than the Disease: Tips for Securing Prompt Insurance Recovery of Ransomware Losses, Reuters Legal News Beta (Sep 1, 2021) available at https://www.reuters.com/legal/legalindustry/dont-make-cure-worse-than-disease-tips-securing-prompt-insurance-recovery-2021-09-01/

13 See Nicholas Gaffney, How Microsoft’s Data Breach Impacts Law Firms (and Their Clients), Law Practice Today (Jun 15, 2021) available at https://www.lawpracticetoday.org/article/how-microsofts-data-breach-impacts-law-firms-and-their-clients/

FROM THE DIRECTOR: OCTOBER 2021

Keeping Up with the Law Librarians

Barbara Engstrom, Executive Director, King County Law Library

Yes, Keeping up with the Kardashians has been cancelled, but never fear, the law library has you covered for the newest trends (at least in law library land.) As we transition into fall, it’s a good time to update you on the latest happenings at the King County Law Library.

The Law Library Foundation Board is Expanding – We are Recruiting Board Members – Join Us!

One of the principal missions of the law library is to facilitate innovative ways to engage with the community. Our SRL Workshop partnerships with SPL and KCLS have taught us that many of those with legal needs have an initial point of contact at public libraries and then are referred to the Law Library. The new Foundation-provided laptops will allow staff to do outreach more effectively in the public libraries and throughout the community as things begin to reopen. We are hoping to create a program where KCLL librarians “ride the circuit” of public libraries in King County to offer legal research assistance at regularly scheduled times.

Another area of interest is spearheading a county-wide legal kiosk project similar to the Minnesota Legal Kiosk project. https://www.legalkiosk.org/about The Foundation envisions legal-help kiosks being placed around King County at community locations hosted by sponsor organizations. Currently, we are projecting two primary applications for the kiosks. The first application will facilitate retrieval of forms and self-help resources at community access points that are easily accessible. The second will create private, virtual connection points for contact with legal aid attorneys, courts, and other legal services providers to eliminate barriers for those without reliable access to transportation or technology.

The KCLLF Board of Directors is expanding and transitioning to a working board. We are looking for new board members excited about advocacy, equity, diversity, building community engagement and fundraising. The Board of Directors currently meets quarterly over Zoom, though we anticipate returning to in-person meetings in the future. Prior board service is not required to apply. Applications will be accepted on a rolling basis.

If you are interested in serving, please forward a current resume and a brief statement of interest to KCLLF Executive Director Kristie Thompson thompsonk@kcllfoundation.org.

Remote Access to WSBA Deskbooks on Lexis Digital — Subscribers

Our e-Book selection on Lexis Digital continues to expand. The WSBA recently partnered with Lexis Digital to offer the suite of WSBA Deskbooks and that collection is now available to subscribers via https://lexisdl.com/library/kcll/ In addition to the Deskbooks, we’ve also expanded our Lexis eBook treatise collection. If there are any Lexis, ABA, or other titles that you would like the library to add to our collection, let us know and we will check on availability.

To find out about becoming a subscriber visit https://kcll.org/services/subscribe/

All Lexis Digital content is available for in-house use at the law library for all KCLL patrons in eBook or print format.

Remote Access to Legal Treatises on Cheetah/ Wolters Kluwer – Free to All KCLL Patrons

While remote access to the Lexis Digital collection is limited to subscribers, our Wolter’s Kluwer treatises are available for free to all KCLL patrons. You will find some of our most heavily borrowed titles including Scott and Asher on Trusts, the Law of Lawyering, the Administrative Law Treatise, and Areda & Hovenkamp’s Antitrust Law.

Our Wolter’s Kluwer treatise collection can be accessed via our Cheetah database. When you register with the law library as a Guest, you will receive at library card number that will allow you to access Cheetah. For more information on registering as a Guest visit https://kcll.org/join-kcll/

Researchers at Your Service — Let Us Do Your Research

For those in the know, the law library’s Let Us Do Your Research service is one of the best deals in town. For solo and small firm attorneys, it’s like having an on-demand, low-cost research assistant who comes armed with tens of thousands of dollars of legal research resources.

Subscribers submit research projects to us through our website. The first fifteen minutes of research is free as our staff reviews the request and determines: 1) if the question(s) fall within the scope of our expertise and our information resources; and 2) if we can meet the request deadline. Once we determine that the question meets these parameters, the subscriber decides if it makes sense to use the service and how much time she would like us to spend. The current rate for approved Let Us Do Your Research projects is $100 per hour, charged in 15-minute increments. Our researchers will limit the amount of time spent on the question to the predetermined amount. If the question takes less time than projected, we only charge for the time spent on the project. Subscribers receive a detailed research memo that includes references to the resources used, summaries of relevant caselaw as well as the full text of cases relied on in the research memo. This service is available only to subscribers.

Here’s what some of our Let Us Do Your Research service users have said:

I presented a fairly complicated question and didn’t want to spend my time down the rabbit hole. I wanted a pro to help me avoid the hours I would have taken to get to first base. I got a call a day after I sent the question from a gentleman who asked perfect questions and engaged in a fruitful and interesting back and forth on the issue. Three days later I got a clearly written road map memo that got me where I needed and then some. Overall great experience. Thank you, money well spent.

Very helpful! The problem with being an older attorney sometimes is I forget about other potential legal avenues I might pursue. In this case your research reminded me of Restatement of Judgments 2nd which gave me an excellent argument to hopefully defeat collateral estoppel

This is great and exactly what I was hoping for. As a solo practitioner who has zero staff, this type of assistance is invaluable. Thank you, again!

Making it Easier to Get What You Need Remotely — 5 Free Document Deliveries Per Month

We know that coming to the courthouse can be stressful in the best of times and is even more so in the middle of this pandemic. To make it easier to use the law library remotely we offer subscribers 5 free document deliveries per month. This can be a case, a section of a treatise, a law review article, or any

other document we have in our collection. We’ll shoot you a copy of the requested material over email. For non-subscribers, document deliveries cost $25 per document.

A Room of One’s Own — Conference Room Reservations

Many of you appreciate having a private, quiet place to use as a base of operations during trial or to strategize over the lunch break. Now that trials are starting to pick up our rooms our starting to book out into the next few months. Be sure to plan well in advance if you would like to reserve a conference room.

Law library subscribers get discounted rates on the use of the law library’s conference rooms. The rate for subscribers is $20/hr and for non-subscribers is $35/hr. Reservations are generally for the lunch period which runs from 11 a.m. – 1:30 p.m. or all day which runs from 8 a.m. – 4:30 p.m. Visit https://kcll.org/services/reserve-a-conference-room/ to find out more

What’s New with You?

Have a suggestion for a book/topic area you’d like to see in our collection? Would you like to teach a CLE or a workshop for pro se litigants? Do you have an idea for a new service that the law library could provide? Let us know. Reach out the to law library at services@kcll.org.

From the Director: August 2021

Climate Change and Your Law Practice

Barbara Engstrom, Executive Director, King County Law Library

In the past, a climate change practice might have been primarily limited to environmental laws dealing with technical, regulatory aspects of carbon emissions. The collapse of the Surfside condominium tower, the “heat dome” that brought Las Vegas-level temperatures to Seattle, and the shroud of wildfire smoke that increasingly envelopes the Puget Sound each summer are all stark reminders that the effects of climate change are pervasive and are already impacting virtually every practice area.

It was less than a decade ago that the ABA began the push for rules requiring a duty of technological competency for attorneys. Who would have imagined that in 9 short years that we would be at the point where attorneys working from home and remote court operations would become the norm? To illustrate how quickly regulation can fall behind practice norms, there are 11 states that still do not have a requirement for attorney technology competence, with California only recently approving their rule in February 2021.1

With the increasing speed and compounding effects of climate change, a duty of climate competency for attorneys may be the next attorney competency on the horizon. The ABA has already begun to lay the groundwork with Resolution 111 passed in 2019 which concluded with the exhortation to attorneys to “advise their clients of the risks and opportunities that climate change provides.”2

Within law schools there is an emerging recognition of the need for integration of climate-related instruction beyond niche environmental law seminars and into the core curricula. 3 This goes hand-in-hand with the understanding that attorneys already in practice will increasingly be called upon to provide climate-competent representation regardless of their practice area.4 The following practice areas offer a sampling of what climate change will have in store for attorneys. In good news, there are tools and resources currently being developed that will help attorneys transition to climate-competent representation.

Rising Seas & Coastal Law

Almost every article discussing the Surfside condominium collapse poses the question whether climate change played a role. Regardless of the cause of the collapse in that instance, saltwater intrusion from rising sea levels and severe and frequent storms surges are certainly taking a toll on coastal properties both around the world and closer to home in Washington State. Accretion and subsidence of beach profiles will affect not only the associated property lines but will also impact intertidal aquaculture and coastal freshwater aquifers.5 Part of an attorney’s due diligence for these types of issues will likely involve tracking sea level rise projections for affected properties or industries. Resources like the Washington Coastal Hazards Resilience Network will help attorneys understand sea level rise projections along with risk reduction strategies. https://wacoastalnetwork.com/

Corporate and Securities Law

Corporate

For years corporate involvement in climate-related issues was often relegated to lip-service proclamations that did little other than greenwash a business-as-usual approach. With the acceleration of climate-related litigation however, corporate attorneys are having to reassess exposure as more litigants are choosing to sue corporations for climate impacts rather than focusing primarily on governments.

The key areas of concern for corporate lawyers have been in legal risks from clients, shareholders, consumers and, increasingly, developing government legislation.

But lawyers are increasingly embroiled in avoiding or dealing with the results of transitional risks, notably that of stranded assets, where poor investment decisions on long-lived assets can lead to liability during their lifetime. These transitional risks arise, for example, when greenhouse gas emission limits are tightened in line with climate science, leading to costly upgrade or closure, when a given carbon-intensive or renewable energy technology becomes obsolete and when coastal developments become uninsurable as they are ill-equipped to withstand rising sea levels, storms and flooding. Investors are asking more questions, becoming more activist, and there is growing pressure to divest from carbon-intensive assets. 6

Securities

As financial regulators continue to study the issue and determine how to address impacts of climate change, companies are forging ahead with their own risk/opportunity analysis and disclosure protocols at the behest of investors who want more and better information regarding the effects of climate change on financial assets. These voluntary measures are impacting the course of regulation. Harvard’s Energy and Environment Law Program has a Financial Regulator Climate Action Tracker that monitors developments at various regulatory agencies to update the emerging regulatory landscape. They also have a continually updated Timeline of Investor and Bank Use of Climate Information to give a bird’s eye view of the impact of climate information at financial entities over the last few years.7

Columbia Law School’s Sabine Center for Climate Change Law also has several interesting resources for adapting to climate change for businesses and investors, including Legal Tools for Climate Adaptation Advocacy: Securities Law. 8 The Congressional Research Service Report, Climate Change Risk Disclosures and the Securities and Exchange Commission (April 20, 2021) is also worth a read. https://crsreports.congress.gov/product/pdf/R/R46766

Contract Law

A major component of climate-competent representation involves contract drafting. Climate-conscious contracting helps attorneys manage foreseeable risks, remain in compliance with climate regulations, and respond to consumer demands for climate action. The Climate Contract Playbook, a fantastic, free resource makes this drafting much easier. The Playbook is product of the Chancery Lane Project, https://chancerylaneproject.org/ a world-wide, collaborative effort of attorneys to develop contract language to address climate change issues. The Playbook includes model contract clauses organized by industry and glossary entries to assist in drafting climate-aligned contracts. The industries covered include corporate, insurance, real estate, construction, employment, and litigation & arbitration among others.9

Insurance Law

As climate change-related wildfires, hurricanes, and other natural disasters continue to increase in frequency and intensity, the impacts are felt not only in the immediate environs but have collateral impacts that affect supply chains, energy markets, and local economies. As more of these events occur, insurance rates will rise, and as insurance rates become less affordable, rates of private insurance will go down, potentially leaving states and local governments left holding the bag.

The impact of wildfires on the insurance market seems to be a bellwether for the industry. Generally, homeowner’s insurance covers wildfire loss. However, in many wildfire prone areas, insurers are cancelling existing policies or refusing to insure in the first place, which can impact mortgages. Taking mitigation measures can sometimes help get insurance reinstated but the issue is also causing many to question whether municipalities need to start declaring highly prone wildfire areas off limits to new development.10

Current, standardized insurance models will soon be outstripped by climate-related events and their corollary impacts. The book Climate Change and Insurance11 is available for checkout at KCLL and will help attorneys understand the intersection of climate change and insurance, especially with regard to general commercial liability, directors & officers liability, professional liability and renewable energy-related policies along with other potential liability and exposure drivers.

Conclusion

The aforementioned represent the tip of the (melting) iceberg of practice areas impacted by climate change. For more information on how you can prepare for climate-competent representation, check out the multitude of resources at the King County Law Library. Be sure to use our remote resources from the comfort of your home or office. www.kcll.org. As always, if you need assistance on the or any other topic, please feel free to contact us at services@kcll.org.

 

1 See Bob Ambrogi, California Becomes the 39th State to Adopt Duty of Technology Competence, (March 24, 2021) https://www.lawsitesblog.com/2021/03/california-becomes-39th-state-to-adopt-duty-of-technology-competence.html

2 American Bar Association House of Delegates, Resolution 111’August 12-13, 2019) https://www.americanbar.org/content/dam/aba/directories/policy/annual-2019/111-annual-2019.pdf

3 See Warren G. Lavey, Toolkit for Integrating Climate Change into Ten High-Enrollment Law School Courses, 49 Envtl. L. 513, 516 (2019)

4 See Warren G. Lavey, Training All Law Students and Lawyers for Climate-Competent Representation, (April 23, 2020) https://www.iucn.org/sites/dev/files/content/documents/2020/training_all_law_students_and_lawyers_for_climate-competent_representations.pdf

5 See D.D.Huppert, A. Moore, & K. Dyson, The Washington Climate Change Impacts Assessment: Evaluating Washington’s Future in a Changing Climate, Chapter 8 (Climate Impacts Group University of Washington 2009). doi:10.7915/CIG0MS3K2

6 See Paul Hatchwell, Corporate Lawyers in a Climate of Change (International Bar Association) https://www.ibanet.org/article/82bd7fb4-c46c-4819-a56f-be9d7f683fa6

7 https://eelp.law.harvard.edu/climate-related-disclosure-and-financial-risk-management/

8 See Securities and Climate Finance, https://climate.law.columbia.edu/content/securities-and-climate-finance

9 DLA Piper has a nice overview of the Climate Contract Playbook https://www.dlapiper.com/pl/poland/insights/publications/2020/11/contracting-for-the-climate-the-climate-contract-playbook-is-a-trove-of-climate-clauses/

10 Sophie Quinton, As Wildfire Risk Increases, Home Insurance is Harder to Find (Jan 3, 2019) https://www.pewtrusts.org/en/research-and-analysis/blogs/stateline/2019/01/03/as-wildfire-risk-increases-home-insurance-is-harder-to-find

11 Christina Carroll, Climate Change and Insurance Law, (ABA 2012) https://kcll.bywatersolutions.com/cgi-bin/koha/opac-detail.pl?biblionumber=3966 (FYI – this is the most recent edition of this book)