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The short answer is, in large part, “Yes.”  As early as 1905, the United States Supreme Court upheld as constitutional a state law mandating vaccination of all adult citizens against smallpox.  See Jacobson v. Commonwealth of Massachusetts, 197 U.S. 11, 25 S.Ct. 538 (1905).

In the employment context, it is legal under both federal and state law for employers to require employees, as a condition of employment, to be vaccinated for diseases, including COVID-19.  However, in some circumstances, employers must provide reasonable accommodations for employees who cannot get vaccinated due to disabilities or sincerely held religious beliefs.  Both federal and state law require employers to engage in an interactive process with employees seeking an exemption to determine whether reasonable accommodation can be made.  However, even if an employee has a legitimate reason for a medical or religious exemption, an employer can still legally terminate the employee’s employment if accommodation would work a hardship on the employer.  Additionally, some employers may require vaccination due to job requirements where reasonable accommodation is not feasible.  For example, a hospital may require all health care workers to be vaccinated where remote work is not feasible.

On December 16, 2020, and again on May 28, 2021, the federal Equal Employment Opportunity Commission (EEOC) issued guidance containing an excellent overview of EEO laws and Frequently Asked Questions (FAQ’s) regarding vaccine requirements which can be found here.

On August 20, 2021, Washington Governor Jay Inslee issued a proclamation requiring vaccination by October 18, 2021 for most state employees and health care workers. The proclamation incorporates the federal and state exemptions for disability-related and religious accommodations.  Under this proclamation, employers are still required to engage in an interactive process with employees in determining whether reasonable accommodations can be made.

On September 9, 2021, President Biden announced that the federal Occupational Safety and Health Administration (OSHA) is developing a rule that will require employers of 100 or more to ensure their employees are either fully vaccinated or provide weekly negative COVID tests before coming to work.  It is anticipated that this rule will face legal challenges; however, many employers will likely comply with the rule while its validity plays out in the courts.

The bottom line is that being terminated from employment for refusing to get vaccinated is likely not grounds for a wrongful termination lawsuit.  If you have any questions about your rights in the workplace, please do not hesitate to give the lawyers at Deno Millikan Law Firm a call.

I do admire the writers of Better Call Saul for their generally accurate portrayal of legal proceedings. In Episode 6, there is an interesting courtroom scene where Kim Wexler is arguing against disclosure of her clients’ medical records. Recall that the Sandpiper Crossing lawsuit is in the discovery phase, and both sides are permitted to request documents from each other. The apparent procedural posture at issue in this instance is likely a motion by Schweikart and Cokely (“S&C”), the firm representing Sandpiper Crossing, to compel Hamlin, Hamlin & McGill (“HHG”) to turn over the medical records for all of their clients. All we see is the oral argument, which is just the tip of the iceberg in legal proceedings. As the judge mentions at the close of the hearing, he is going to review the briefs before ruling. In Washington, the person requesting relief is called the “moving party”, and the person resisting relief is the “non-moving” party. Generally, there is a motion, followed by a response, and then followed by a reply. The judge reviews the briefs and usually makes up his (or her) mind before the hearing. Indeed, courts have done away with oral argument in some cases.

Ultimately, I agree that the judge would probably rule to turn over the medical records. In discovery, the documents themselves don’t need to be relevant; they just need to be reasonably calculated to lead to relevant evidence. In this case, the clients’ “capacity” (the legal term for having most of your marbles), is relevant.

Impressed by Kim’s tenacity, Rich Schweikart offers her a job at S&C. Quite correctly, Kim raises an ethical issue regarding conflicts of interest. In Washington, conflicts of interest for former clients are governed by RPC (Rules of Professional Conduct) 1.8, which provides:

• A lawyer who has formerly represented a client in a matter shall not thereafter represent another person in the same or a substantially related matter in which that person’s interests are materially adverse to the interests of the former client unless the former client gives informed consent, confirmed in writing.
• A lawyer shall not knowingly represent a person in the same or a substantially related matter in which a firm with which the lawyer formerly was associated had previously represented a client
  • whose interests are materially adverse to that person; and
  • about whom that lawyer had acquired information protected by Rules 1.6 and 1.9(c) that is material to the matter; unless the former client gives informed consent, confirmed in writing.
• A lawyer who has formerly represented a client in a matter or whose present or former firm has formerly represented a client in a matter shall not thereafter:
  • use information relating to the representation to the disadvantage of the former client except as these Rules would permit or require with respect to a client, or when the information has become generally known; or
  • reveal information relating to the representation except as these Rules would permit or require with respect to a client.

This rule applies to law firms as well as individual clients.

Mr. Schweikart responds to Kim’s ethical inquiry with the statement that she will not be working on Sandpiper Crossings, and would not be asked to disclose anything she knows about the case. In law firms, they refer to this shield as a “Chinese Wall”; a term that confuses me. My recollection from high school was that the Great Wall of China didn’t stop anyone. However, law firms are dead serious about avoiding even the appearance of conflicts of interest. You can take that to the bank.

Later, and feeling good about herself, Kim picks up a voice mail from Jimmy where he sings the song “Bali Ha’i” from the Rogers and Hammerstein musical, South Pacific (I despise the movie version of South Pacific for a lot of reasons, not the least of which is wretched color filters they used when filming many of the song sequences. Trivia: Did you know that South Pacific was filmed on Hanalei Bay on the Hawaiian island of Kauai? This is the same Hanalei of Puff the Magic Dragon fame!).

Bali Ha’i is an unreachable mythical paradise, and Kim is seduced by Jimmy’s overture and reaches out to him for another barroom scam. This time, the scam is directed towards an unsuspecting engineer who is deceived into investing in a non-existent corporation known as “Ice Station Zebra”.

At this point, I’m shouting at the television, imploring Kim to sever her ties to Jimmy. He’s a bad influence little girl, and you’ve got so much going for you.

The conflict between Hector Salamanca and Mike Ehrmantraut continues to escalate, and is my favorite aspect of this series. For those of you who were Breaking Bad fans, recall that Hector Salamanca appeared in that series as a drooling, wheelchair bound invalid, unable to speak, who communicated with the outside world through a bell (the kind your elementary school teacher had on her desk), fastened to his wheelchair. Able to move only the index finger on one hand (I’ve forgotten which), he tapped once for “yes”, and silence for “no”.

Hector had become aware that Walter White had killed Hector’s son, Tuco, and he longed for revenge. However, his desire for revenge was surpassed by his hatred for law enforcement. In one particularly memorable episode, the FBI was questioning Hector, who had the opportunity to provide them with incriminating information regarding Walter White and his meth-manufacturing operation. Because Hector was unable to speak, and could only move his index finger, the FBI agents used the painstaking method of constructing Hector’s testimony one letter at a time by moving their finger across a matrix containing letters of the alphabet. Hector would ring his bell when the agent’s finger crossed the next letter in the sentence. Rather than cooperate with the FBI, Hector wets himself (or was it the “other”?), sitting right in his wheelchair. That’s commitment.

Shortly thereafter, Hector meets his maker when he gets blown up by a wheelchair bomb rigged to detonate when he rings his bell.

Better Call Saul is turning into a Breaking Bad reboot, with many of the characters returning to reprise their roles, not unlike Star Wars, Episodes 1, 2, and 3. However, as George Lucas found out, it’s hard to go back in time and construct a compelling past for characters when you already know their future. In my mind, it generally detracts from the suspense. But, in Breaking Bad, we were not aware that Mike and Hector had a history, and this dimension is really well done. Like I said last week, how do Mike, Hector, and Tuco manage to co-exist?

I would like to thank my readers for sticking with me. Life has intervened over the past few weeks, and I’ve fallen a little behind on this blog, so I’m going to combine the last two episodes into this edition.

The reason for my tardiness comes not only from my law practice, but from my extra-curricular activities. I’ve been a musician my entire life and currently occupy the keyboard chair in BroHamM. We are a funk-soul vocal band. We don’t yet have a website, but we do have a Facebook page. We’ve been working hard to get ready to gig. Stand by for a link to our website, which is currently under development.

So, after that act of shameless self-promotion…

Let me say that I am very disappointed with Jimmy McGill’s character development. Most of his dialog is contrived, and not very convincing. Like his conversation with his brother in Episode 4, where he and Charles get into an argument regarding the commercial that Jimmy did for the Sandpiper Crossings lawsuit. On the one hand, it’s true that he didn’t get authorization from the partners at Davis & Main, and their anger was fully justified. Jimmy should probably have been fired.

However, it’s hard to deny the emotional appeal and the effectiveness of his commercial. Rather than taking months, he did the commercial in an evening, for basically nothing. In the real world, people with this kind of initiative and creativity are rewarded, not criticized.

At any rate, this is not a particularly interesting moral dilemma.

In a similar vein, Kim Wexler is also in the doghouse at Hamlin, Hamlin, and McGill for endorsing Jimmy, and has been relegated to “document review.” I’ve never worked at a large firm with a document review department (it wasn’t for lack of trying, as I applied to all of them. In retrospect, this was a stroke of good fortune).

We discussed “discovery” in a previous edition of this blog. To refresh your memory, it is the stage of a lawsuit where the parties obtain information from each other. Documents are an important source of information, and the folks in “document review” are combing through tens-of-thousands of pages of documents, looking for the proverbial needle-in-the-haystack. The fate of millions of dollars can ride on a few precious pieces of paper.

DISCOVERY SANCTIONS IN WASHINGTON STATE

For example, we have a famous case here in Washington, Washington State Physicians Insurance Exchange & Associations v. Fisons Corp.  In 1986, a two year-old girl suffered seizures and permanent brain damage as a result of a prescribed drug, theophylline. The parents sued the physician and the drug company on behalf of their child. The physician cross-claimed against the drug company.

A year after the physician settled with the parents, a letter surfaced from an anonymous source, indicating that the drug company was previously aware of potential toxicity in children who suffer from a viral infection, and had failed to give appropriate warnings. This was the first that the plaintiffs had seen this letter.

The physician’s attorneys asked for “discovery sanctions” against Fisons for their failure to turn over this document, arguing that it should have been supplied in response to a previous discovery request. Discovery sanctions, such as monetary penalties, are sometimes used to punish a party who resists legitimate discovery requests. Attorneys are required to play fair; it’s the law:

A lawyer shall not .  .  . in pretrial procedure .  .  . fail to make [a] reasonably diligent effort to comply with a legally proper discovery request by an opposing party.

RPC 3.4

Caught red-handed, Fisons turned over approximately 10,000 documents, and out of this haystack, the attorneys located a 1985 memo, further attesting to the known toxicity of theophylline. Shortly after this memo was revealed, the child’s parents settled with the drug company for $6.9M.

DOCUMENT REVIEW: BUSY WORK, BUT NECESSARY

So, those folks doing the thankless task of document review actually have an incredibly important job.

In Episode 5, still stuck in document review, Kim says to Jimmy, “I am going to save me.”  To do this, she tracks down a new corporate account for HHG, (the legal term is “Rainmaking”). Unfortunately, Howard is still vindictive, and puts her back in document review. Ho-hum.

Frankly, I think Kim is far more of an interesting character than Jimmy. But my favorite character is the retired cop, Mike Ehrmantraut, who exudes a sinister radiance on the one hand, but is utterly devoted to his dead son’s widow, and his granddaughter. Sort of a Vito Corleone crossed with Don Quixote.

I also love Tuco, the meth-head dealer. Talk about a sinister radiance! I have trouble sleeping at night after seeing him. He is a brutal, meth-head, sociopath, sort of a cross between Charles Manson and a komodo dragon. (On the other hand, he’s probably not such a bad guy after you get to know him.)

I also like Tuco’s father, Hector Salamanca. Not sure how Mike, Tuco, and Hector all survive this series, but this will keep me tuning in.

July 1, 2019

April 1, 2016 – Originally published on HeraldNet.com by Diana Hefley, Herald Writer

EVERETT – The panic often is written on their faces.

People threatened with eviction or foreclosure could lose their apartment or house, and they need help to sort things out.

Everett attorney Patrick Songy hopes at the very least to buy them more time, maybe a few weeks to find another place to go or enough notice to put their belongings in storage.

“We try to help them move with dignity, even if that means just having time to pack up their possessions,” Songy said.

Songy is among the 200 lawyers and paralegals who volunteer with Snohomish County Legal Services. He volunteers his time with the Housing Justice Project, which provides free legal counsel to people facing eviction or foreclosure who can’t afford to hire their own lawyers. The clinic operates a few hours a day Tuesdays through Fridays, on the first floor of the Snohomish County Courthouse.

The goal is to help people find solutions before court action is taken. An eviction filing becomes part of a person’s permanent public record even if it’s dropped. That can affect a person’s ability to find housing in the future, Snohomish County Legal Services executive director Benjamin Haslam said.

His agency works closely with social service agencies to help their clients avoid evictions, he said. If that’s not possible, the volunteer lawyers are there for court hearings, advice and mediation between the tenants and landlords.

The housing clinic is one of 10 operated by Snohomish County Legal Services. The nonprofit has been around since 1983. It helped nearly 1,400 new clients last year with various civil legal problems, including divorces, domestic violence, evictions, foreclosures, debt relief, bankruptcy and wills.

The organization prioritizes cases for victims of domestic violence and sexual assault and situations where children may be at risk, Haslam said.

The staff and volunteers also are “focused on preventing homelessness by ensuring tenants and homeowners facing eviction or foreclosure are treated fairly,” he said.

There are six lawyers and one paralegal on staff. The organization relies on lawyers volunteering their own time to help additional indigent clients. Those volunteers typically give about 2,200 hours a year. Volunteer paralegals donate additional time.

“We absolutely couldn’t do it without volunteers,” Haslam said.

Ann Brice has volunteered since 1994. She’s been on the board of directors and also helped the organization drum up donations.

“I truly believe in access to justice for all. We as attorneys are very fortunate and have knowledge that can be very important in someone’s life. We have a responsibility to help people navigate the legal system. We have a responsibility to give back,” Brice said.

She is a partner at the Law Office of Brice & Timm in Everett and generally works at juvenile court.

There is an interesting subplot woven throughout this series, that being the challenge that a lawyer has of finding clients. You may recall that, early in the series, Jimmy was a public defender. For those of you that may not fully appreciate what a public defender does, they represent those criminal defendants who don’t have the means to retain their own private counsel. It’s a common place where new lawyers start out; not just for the money, but for the experience of getting into court and trying cases. But how does a young lawyer expand his practice?

Before 1977, lawyers were forbidden from advertising by bar association rules. It took two young Arizona lawyers, Bates and O’Stein, to change that. At the time, Arizona Bar Association rules forbade advertising. Bates and O’Stein ran an ad, promoting their low rates. After losing at the Arizona Supreme Court, Bates and O’Stein took their case all the way to the US Supreme Court, which not only found that advertising fulfilled a critical role in informing the public about the availability of legal services, but also found that the rules against advertising violated the lawyer’s First-Amendment rights to free speech.

However, this did not open up the floodgates. Advertising by lawyers is still strictly regulated by court rules, specifically, the Rules of Professional Conduct (“RPC’s”). These rules vary from state to state. In Washington State, RPC  (Rules of Professional Conduct) 7.3 prohibits direct contact with a prospective client unless the contact meets one of the following criteria:

(a) A lawyer shall not, directly or through a third person, by in-person, live telephone, or real-time electronic contact solicit professional employment from a prospective client when a significant motive for the lawyer’s doing so is the lawyer’s pecuniary gain, unless the person contacted:

(1) is a lawyer or an LLLT;
(2) has a family, close personal, or prior professional relationship with the lawyer; or
(3) has consented to the contact by requesting a referral from a not-for-profit lawyer referral service.

In other words, a lawyer simply can’t cold-call a prospect. If you are interested in seeing the Rules of Professional Conduct for New Mexico, the situs of Better Call Saul, they can be found here:  New Mexico Rules of Professional Conduct.

With this information as a background, Episode 3 opens with Jimmy bribing a bus driver to allow him on an excursion bus to speak with a little old lady. As we later learn, this woman actually returned a mailing that was sent out to residents of Sandpiper Crossings. (Mailers are a permissible means of advertising, provided they don’t contain a material misrepresentation.) Of course, Jimmy carefully chose the timing and place of this meeting to ensure that other Sandpiper residents were within earshot. (A violation of the rules regarding confidentiality, but I digress.) Understandably curious, others inquired about what was going on and, after some carefully choreographed coercion, Jimmy signed up a number of them.

In the board room at HHG, Jimmy’s brother, Charles, was dubious about Jimmy’s success in signing up clients. Charles is a lawyer’s lawyer. He recognizes the challenge that Jimmy faces, and knowing Jimmy’s history, Charles correctly concluded that Jimmy is using unethical means to get people to sign up for representation.

Desperate to expand the number of clients, Jimmy prepared a commercial, hoping to target a specific audience, e.g. the Sandpiper residents. Unfortunately, he specifically mentioned the name “Sandpiper Crossings” in the commercial. I predict that this is going to get him in a ton of trouble. If not in violation of an ethical rule, the context and content of the commercial clearly calls Sandpiper Crossings’ billing practices into question. I predict a lawsuit for defamation against Davis and Main, with dire consequences for Jimmy.

Episode 3 ends with Jimmy on the phone with Clifford Main, one of the partners at Davis & Main, who was livid that Jimmy would run a commercial without first clearing it with the partners. We all knew that Jimmy was going to have a downfall; I just didn’t expect it to be so soon. Is he taking Kim down with him? Has Jimmy crashed on the rocks?

Season 2, Episode 1 ends with Jimmy McGill accepting a position at the fictitious Santa Fe law firm of Davis and Main. At long last, he receives all of the trappings of success: company car, fancy desk, money, and respect. If one were to see only the last five minutes of this episode, Jimmy looks like a heroic figure who has overcome overwhelming odds to achieve success through hard work. (Cue “We are the Champions” by Queen)

But we already know it can’t last. We all met Jimmy years ago (or was it years in the future, after all, Better Call Saul is a prequel to Breaking Bad,) when, under the name of Saul Goodman, he became a caricature of a lawyer: corrupt, manipulative, fearless, and utterly remorseless.

But that is in the future. In Better Call Saul, Jimmy is a sociopath in training. He still has a conscience.

As we learned last season, Jimmy McGill earned his law degree while working full time in the mail room at the Albuquerque law firm of Hamlin, Hamlin & McGill. At the same time, Jimmy attended correspondence school at the American Samoan Law School. He also cared for his older brother, Charles, who suffers from an imaginary (or is it real?) hyper-sensitivity to electromagnetic radiation. Jimmy coddles Charles almost as if he is an infant. Jimmy idolizes his brother, who is everything he is not. Charles was also a founding partner of Hamlin, Hamlin & McGill.

Despite the fact that he worked as a mail clerk at Hamlin, Hamlin & McGill for 10 years, despite the fact that he attended law school while working full time, and despite the fact that he cared for his brother, Hamlin, Hamlin, and McGill refused to hire Jimmy after he passed the bar. After working for 10 years to earn his brother’s respect, Jimmy gets stabbed in the back.

So, Jimmy did what many new lawyers do to build a practice: he became a public defender, and attempted to establish himself as an “Elder Law” attorney. In an effort to put himself in a place where potential clients could be found, Jimmy also volunteered at an assisted living center, the Sandpiper Crossing Retirement Home. One of my favorite scenes from Season 1 showed an elderly woman gazing at the bottom of her Jello cup, which read, “Need a Will? Call McGill”.

While volunteering at the assisted living center, Jimmy discovered that the residents were being victimized by systematic overbilling, which led to a class action lawsuit that is the centerpiece of Season 2. (BTW, the “Sandpiper” case has many interesting dimensions, and most of the lawyering done during Season 1 was spot on.)

As a con-artist, we are led to believe that Jimmy was pretty good. Just between you and me, I don’t know much about con artists, but I know something about lawyering, and Jimmy has some skills. (Cue Steppenwolf’s “Born to be Wild”).

In Better Call Saul, Season 2, Episode 2, the Sandpiper Crossing’s lawsuit is in the “discovery” stage. “Discovery” is a term of art to a lawyer. It’s the phase of a lawsuit where both sides (the “plaintiff” and the “defendant”) obtain “evidence”.

In the conference room at Hamlin, Hamlin & McGill (HHG), the attorneys discussed documents (such as lease agreements) that they hope will support their case against Sandpiper Crossings. Documents are a particularly rich source of evidence. Other types of evidence include, but are not limited to: audio recordings, video recordings, testimony, physical objects, and photographs. In a case such as Sandpiper Crossings, there will be thousands of pages of documents; it will be a formidable task to sort through them to find the “relevant” evidence. Under the Rules of Evidence, even the lack of evidence can be evidence.

You may recall last season where Jimmy was denied access to the retirement home. As he was leaving, he noticed a woman in a back room shredding documents. Sensing an opportunity, Jimmy secreted himself in the bathroom and wrote a demand for preservation of evidence, which was partially written on a roll of toilet tissue. Although humorous in its execution, this scene made a very good point and was an example of Jimmy’s occasional brilliance. Jimmy also points out that the destruction of evidence is called “spoliation”.

Why then, with all his talent and intuition, does Jimmy dabble in deception? If I’m not fully invested in a character’s motivations, I’m not fully invested in the character. Why does Jimmy find it necessary to cheat? Like his girlfriend, Kim Wexler says, he risks everything that he’s achieved: the company car, the office, prestige, his future. In my mind, I don’t see how Jimmy can turn his back on what he achieved. But, we already know that he has a personality defect that forces him to self-destruct. I predict his descent will be spectacular.

For example, why does Jimmy come to the aid of Pryce Wormald (the guy who dabbled in selling drugs)? The best explanation I can come up with is that Jimmy wants to be Mike Ehrmantraut’s “go-to” guy, setting up future shenanigans. I cringe to think what he may get into, but I can’t wait to see.

In any event, the scene I keep reflecting on from Season 2, Episode 2, is where Jimmy is wandering through his new office at Davis & Main when he hears his boss, Clifford Main, playing the guitar. Is this music a siren’s song drawing him to his doom, or has he found a home?

The Secret to Trial Mastery: Hard Work

By Joel P. Nichols
This article originally appeared in Washington State Association for Justice Trial News
June 2013, Vol. 48-10

Trial Guides’ “Masterworks” (1) is a 4-DVD and CD collection of presentations by men billed as “five of the finest trial lawyers of the 20th century.” Ignorant of these courtroom “giants”, I envisioned gleaning from their lectures instant insights I could implement in my own practice. I should have known better. There is nothing quick about it. At 3.75 hours, “Masterworks” takes time to digest. However, as is the case with any successful endeavor, the effort is worth it.

Disc 1 contains two lectures by past AAJ (formerly ATLA) President Theodore “Ted” Koskoff, “What is a Lawyer”, and “Cerebration”. Referencing the likes of Andrew Hamilton, John Adams, Clarence Darrow and Franklin Delano Roosevelt, the first lecture reminds the viewer of the important role lawyers have played in American history, bridging the chasm between the individual and abusive institutions. Koskoff’s second lecture implores us to “cerebrate” (think) about everything we do as lawyers in an effort to eliminate mistakes and maximize results in the courtroom – the theory being that if we have thought about every aspect of a case, then nothing is left to chance come trial. As Koskoff astutely articulates, good cases can be lost and bad ones won, simply by doing, or not doing, the hard work of “cerebration” – of chewing, digesting, and rethinking about everything from client presentation to summation.

Disc 2 takes the viewer back to first-year Torts, with a twist. Oxford- and Yale-educated Rhodes Scholar Thomas F. Lambert, Jr., a Nuremberg trial prosecutor and staunch opponent of tort deform, weaves his encyclopedic knowledge of tort law history into an apologetic advocacy for new theories of recovery. With sardonic delivery akin to comedian Lewis Black, Lambert praises “creativity by lawyers not smart enough to know otherwise.” Listening to Lambert makes even the most cynical among us believe we have fighting chances, if only we are willing to take them.

Disk 3 compares two lawyers’ different approaches to asking juries to award damages on the same set of tough facts: an aspiring young actress with contributory negligence, questionable lost income, and skill at pretending. Past AAJ president Marvin Lewis employs Gerry Spence-like empathy for the injured, animating the life-altering damage caused by the wrongdoer. By contrast, but certainly no less compelling, trial veteran Moe Levine demonstrates his mastery of persuasive speaking tools such as dramatic pauses, rhetorical questions, and simple truths. Both approaches, though vastly different, propel the listener to an understanding of the client’s dignity and right to just compensation for her injuries.

Disk 4 concludes the collection with a compelling lecture by veteran criminal defense and personal injury trial lawyer Stanley Preiser on the psychology of trial. Although originally presented 35 years ago, Preiser’s message resonates toady: trial lawyers must accept the truth that their cases and clients are unfashionable with average jurors. Lawyers who accept this basic premise, Preiser proffers, will win more often and achieve higher verdicts by distinguishing their cases from jurors’ deeply held beliefs about people who file lawsuits and the lawyers who represent them. Preiser declares jurors must 1) accept and believe the trial lawyer’s theory of the case, 2) understand the facts, the law, and the consequences of their decisions, and, most importantly, 3) remember the evidence.

Citing studies of juror psychology, Preiser preaches blending “telling” with “showing” to maximize retention. These maxims are a must, Preiser argues, to overcome the bias against large awards in civil cases or “not guilty” verdicts in criminal cases. Preiser explains courtroom techniques to maximize credibility with judges and jurors. Then, Preiser submits, the trial lawyer speaks with the conviction of a trusted authority figure, giving jurors the courage to do what is right in the face of preconditioned prejudices.

Although hosted by the first female President of AAJ, Roxanne Barton Conlin, this collection of stalwart litigators consists of all white men. This is likely more a product of the age of these recordings than it is intentional oversight. As we reflect on the 150th anniversary of the Emancipation Proclamation, one would hope the next cadre of “trial masters” includes a more diverse roster. Still, the “masters” in this collection share techniques and insights surprisingly relevant to current day trial practice. “Masterworks” is a worthwhile addition to your library if, like a favorite meal, you are willing to spend the time to taste, chew and digest it – and to cerebrate.

(1) Trial Guides, LLC (2011), an iWin DVD (4 DVDVs & MP3s, 3.75 Hours, $245), http://www.trialguides.com/media/

Advice on how to handle inherited property

The Daily Everett Herald

Published: Sunday, January 3, 2010

By Eve Nicholas
Special to The Herald

For most property owners, it is relatively easy to decide what to do with investments. They evaluate their personal priorities such as cash flow, lifestyle and living space. They consider the state of the economy and real estate market. Then, based on these factors, they make a decision. Sell the property or hold on to it.

When real estate investments are passed on through wills and estates, real estate decisions may be more difficult. Surviving children, grandchildren, siblings or friends must weigh the practicality of finances and market trends against the sentimentality of family history.

In the state of Washington, when a property owner dies, real estate assets either transfer directly to the spouse (with a community property agreement in place) or they enter a period of probate. Kent Millikan, attorney and partner at Deno Millikan Law Firm, said the probate process is administered by a personal representative designated in the decedent’s will or appointed by the court. This individual locates assets, pays debts, files taxes and makes decisions to buy, sell or hold real estate and personal properties.

It may seem straightforward, but probate can be a tricky process. Following the death of a loved one, emotions can run high. Beneficiaries often have contradictory opinions about the management and distribution of investments. For example, more than one beneficiary may wish to take ownership of a homestead property. Depending on the family dynamic, this situation could lead to a seamless distribution of assets (through cash allocation or a partnership agreement), or it may incite conflict among heirs.

“In the probate process, emotions affect people significantly,” said Millikan. “These emotions can get in the way of dollar-and-cents decisions.”

So, how do you effectively navigate all of these factors — practical and emotional — in order to make sound real estate decisions? Here are a few ideas that may help:

Talk to qualified professionals. “There is no magic formula about the choice to hold on to properties, but the best way to proceed is to get the advice of experienced professionals,” Millikan said.

Find a certified public accountant for information on tax liabilities. Seek out legal advice to facilitate probate activities and resolve disputes. Speak to an accomplished real estate agent to learn about the real estate market and sell properties.

Simplify estate administration. Some estates are especially challenging because of multiple beneficiaries, incompatible viewpoints or complex investments. Since disputes can be expensive and stressful, many personal representatives choose to liquidate assets and divide cash equally among heirs.

When complications arise, try to come up with an evenhanded solution and work together to execute it. If compromises prove to be unattainable, enlist the help of a third-party, such as an attorney or mediator.

Research the property and real estate market. Experienced real estate agents can assist personal representatives and beneficiaries in evaluating the physical condition and value of land and building structures. They may also provide insight into market trends, sales strategies, timing and expectations.

As you move forward, remember that real estate agents are advisers, not decision makers. A good real estate professional will be sensitive to the special considerations that may exist following the death of a family member or friend.

Be honest about emotions. In most real estate transactions, it is best to set aside emotional connections and focus on rational matters including marketing, pricing and deal negotiations. However, many beneficiaries have sentimental ties to old houses and properties. Plus, they may possess strong feelings of grief and loss.

Before making snap decisions about inherited real estate, reflect on the emotional aspects of owning, managing and selling family assets. Consider the needs and expectations of your loved ones and try to make an honest assessment of your own feelings.

In the end, the choice to keep or sell a property remains with the personal representative and beneficiaries. To facilitate the process, find a trusted attorney and real estate agent with experience in dealing with inherited properties. Talk to an accountant about tax responsibilities. Finally, reflect on less practical matters — emotions — to help determine the best strategy for everyone involved.

Eve Nicholas writes a weekly column on getting a job for The Herald and is a freelance writer on Whidbey Island.

© 2010 The Daily Herald Co., Everett, WA