jan '14 - inside pages - welcome | ccba · clark county bar association 500 w. 8th street,...

CLARK COUNTY BAR ASSOCIATION500 W. 8th Street, Suite 65Vancouver, WA 98660

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ccbawashington.orgJANUARY 2014

FOOD WARRIORpage 7

FOOD WARRIORpage 7

THIS MONTH’S ISSUE

President’s Message ............................................................................3CCBA General Meeting & Lunch ..........................................................5A Food Warrior ......................................................................................7CLE Calendar ........................................................................................8CCBA Board Meeting Minutes ..............................................................9The Nuts & Bolts of Handling a Sexual Harassment Case ................10Family Law Section December Report ..............................................11Young Lawyers’ Section......................................................................11Superior Court Bench/Bar Minutes ....................................................12Nuts and Bolts CLE: Estate Planning and Charitable Giving ..............15Inns of Court........................................................................................16Barristers’ Ball Nominations ..............................................................18CCBA Member Spotlight: The Source ................................................20

What You Always Wanted to Know About Lie Detector Tests ..........22Nuts & Bolts CLE: Employment Law Basics for the Business Lawyer ..24Premises Liability ......................................................................................26Double Hearsay ..........................................................................................29Hearsay Profile: Joshua Pops ............................................................30Clark County Volunteer Lawyers’ Program ........................................31 News You Can Use..............................................................................32Law Library News................................................................................32Attorney Bookkeeping Tips ................................................................32Legally Drawn......................................................................................32SW Washington Lawyer Referral Service ..........................................34Events Calendar ..................................................................................34

2013/2014 CCBA OFFICERS & TRUSTEES

HEARSAY is published 12 times per year and is design edited by: GOUGH CREATIVE GROUPJEFF GOUGH, Creative Director • 360-818-4GCG • [email protected]

An annual "green" subscription is included with annual membership dues. Members may purchase a hardcopy subscription for $48.00. Letters, news items, upcoming events and announcementsare welcome. Articles by members are accepted. Submissions should be presented in Microsoft Word and may be edited for length, clarity and style. Submissions by members are published atthe editor’s discretion and space available. Views expressed in articles represent the authors’ opinions, not necessarily the CCBA’s. The publication does not purport to offer legal advice.

CCBA OFFICE HOURS: Monday through Friday, 12:00 p.m. to 4:00 p.m.

360-695-1624 [email protected] www.nwinjurylawcenter.com

Don Jacobs will handle your cases in Washington... and Oregon.A past-president of the Oregon Trial Lawyers Association, Jacobs isavailable to take your cases to court in either state.

He delivers. In two states.

360-695-1624 [email protected]

ases in our cobs will handle yon JacDTegon rt of the OesidenA past-prouro cases tour ce yo takailable tva

360-695-1624 om .certencwylawinjurom.certencwylawinjur

egon.ron... and OashingtWases in obs istion, Jacssociaers Aywarial LT

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IMMEDIATE PAST PRESIDENTJohn Fairgrieve(360) [email protected]

TRUSTEEJill Sasser(360) [email protected]

TRUSTEELaura Mancuso(360) [email protected]

TRUSTEEGideon [email protected]

VLP REPRESENTATIVELe Ann Larson(360) [email protected]

OFFICE MANAGERLisa Darco(360) [email protected]

MEMBER SERVICESHeather Norton(360) [email protected]

PRESIDENTJane Clark(360) [email protected]

VICE PRESIDENTArin Dunn(360) [email protected]

SECRETARYRick [email protected]

TREASURERJ.D. Nellor(360) [email protected]

Law office of:

JANE E. CLARKA T T O R N E Y A T L A W

1014 Franklin StreetFranklin Suites, Suite 108

Vancouver, WA 98660

Available for Referral or Association

Vancouver 360.859.3823Portland 503.974.4161

Email [email protected]

MEDICAL MALPRACTICEWRONGFUL DEATHPERSONAL INJURY

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800-693-9006 • Phone 360-514-9550 • Fax 360-514-9551

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February 5, 2014CCBA Board MeetingCCBA Office - Noon

February 11, 2014Superior Court Bench/BarClark County Courthouse - Noon

February 12 - 13, 2014Mock TrialClark County Courthouse

February 12 , 2014Nuts & Bolts CLE: The Nuts & Bolts ofHandling a Sexual Harassment CaseRed Lion at the Quay 3:00pm - 5:00pm

February 13, 2014Family Law Section Lunch and HolidayPartyVancouver Hilton - 11:30am

February 19, 2014Hearsay Committee MeetingCCBA Office - Noon

February 19, 2014Inns of CourtRed Lion at the Quay - 5:00pm

February 27, 2014Brown Bag CLE - Dog Bite & Animal lawPublic Service Center Noon - 1:00pm

March 1, 2014Barrister’s BallThe Heathman Lodge

HEARSAY - JANUARY 2014 334 CLARK COUNTY BAR ASSOCIATION

PRESIDENT’S MESSAGE

The CCBA’s Lawyer Referral Service is a program designed tohelp the general public find attorneys appropriate for their needs,while at the same time providing a source of new client businessexclusively to our members.

To participate, members pay a small one-time annual fee. (The service is free to the public.) For more information, call the CCBA at 360-695-5975.

THE SWLRS REFERRED 129 CLIENTS IN THE MONTH OF DECEMBERAdministrative Law ............................................................13Bankruptcy............................................................................2Business & Corp ..................................................................1Consumer ............................................................................7Criminal ..............................................................................10Debtor/Creditor ....................................................................9Family Law..........................................................................23General Litigation................................................................22Labor & Employment ..........................................................10Real Property ......................................................................16Wills & Trusts ....................................................................11Worker’s Comp ....................................................................5

SW WASHINGTON LAWYERREFERRAL SERVICE

UPCOMING EVENTSMEETING

MEETING

MEETING

MEETING CLE

CLE MEETING

SOCIALSOCIAL

So here we finally are in 2014. It’s the time of year for all thoseNew Year resolutions, diets and a breather from the hectic holidayperiod. Much as I love the holiday season I do always breathe asigh of relief when we get to January and back into some kind ofroutine. That will last about 4 weeks and then I will start longingfor the cold wet weather to end and summer to arrive.

My family spent 10 daysin Trinidad over theChristmas holiday. Myhusband was asked topresent a seminar thereand it seemed like a goodopportunity for us all toget away. We always tryto immerse ourselves inthe community and cul-ture when we travel so werent houses in local com-munities as often as wecan rather than staying inhotels. Trinidad is acountry of contrasts. Inthe north it is very rural

with small villages, rainforests and beaches. As we spent our firstfew days in the north we concluded that is what the country waslike until we drove south for 2 days to visit some people we knowand passed multiple malls, Kentucky fried chicken outlets andcommercials for liposuction and weight loss. The south is veryAmericanized, primarily because of the wealth derived from oil.

It was good to be away in a warm climate and I had a true breakfrom work staying away from all work email for 10 days. I feelmuch better for it.

Our CCBA Christmas social with Christmas ships and Santa wasa great success. Thanks to all who helped - particularly to Santaand to our photographer John Hoefer who provided at no chargefamily shots and photos of your kids with Santa. If there is enoughinterest we may make this an annual event.

Forthcoming events for your calendar are of course our Barrister’sBall and Casino Night at the Heathman Lodge on March 1 andour General Meeting on March 5 which will be followed by a CLEfrom Lainie Hammond on trust accounts.

I also have some exciting news to share with you. The SupremeCourt justices will be in Vancouver on May 12 and 13 to hear oralarguments on cases. This will take place at Clark College. JudgeMelnick has been instrumental in facilitating this visit and ourlegal community is honored to have them. The letter to accept-ance is included at the end of this message.

The current plan is that the court will hear oral argument on May13. On the evening of May 12 the CCBA will be hosting a recep-tion for CCBA members to meet the justices and enjoy somesocial time. We are still in the process of working out the detailsbut save the date. It is sure to be a great event.

Wishing you all a very happy and healthy New Year.

JANE CLARKCCBA President

specializing in

BANKRUPTCYCONSUMER BANKRUPTCY - CHAPTER 7 & 13

MARK A.CARTERL A W O F F I C E

Serving Washington

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694-8955markcarterlaw.com

2414 MAIN STREET • VANCOUVER, WA 98660


Representing InjuredWorkers on Their

Washington ClaimsBusick Hamrick, PLLC

Steven L. Busick Frances R. Hamrick Douglas M. Palmer

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Outstanding legal help on complex claims

Brain Injury, Spinal Cord Injury, Death Claims

Medical Malpractice, Accidents, Premises Liability

Referral Fees/Fee Splits, as per RPCs.

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MOCK TRIALThe Clark County District

Mock Trial Tournament will be held at the courthouse on

Wednesday and Thursday, February 12th and 13th.

GOT COPIES?The CCBA office now offers self-service copies

to members for only .05¢ per page*

Need your copies stapled, hole punched, collated, or double sided?Our machine can do that! Think of the possibilities.

*Black and White onlyCall Lisa at: 695-5975

NEWS YOU CAN USE

New Address:Maggie Smith Evanson1010 Esther StreetVancouver, WA 98660

LAW LIBRARY NEWS

After hours law library access keycards for current keycard hold-ers is due by the end of January in the amount of $36. If you donot have a keycard and are interested in obtaining one, pleaseask the law librarians for the application.

FOR SALETHROUGH FEBRUARY, 2014The law library is taking blind bids on the following items:

1. Represent Yourself in Court, 7e, by NOLO 2. How to File for Chapter 7 Bankruptcy, 17e, by NOLO 3. Foreclosure Survival Guide, 3e, by NOLO 4. Electronic Discovery and Records and Information Manage-

ment 2012-2013 5. Washington Practice Handbook on Civil Procedure v. 15A

2011-2012 6. Washington Practice Handbook on Evidence v. 5D 2011-

20127. Washington Practice Elements of an Action v. 29 2011-20128. Washington Practice Torts v. 16-16A with 2011-2012 supple-

ments9. Elder Law Forms Manual CD Rom Forms on Disc 7/1310. Washington, Oregon, Alaska LLC forms 2013 CD Rom11. Construction Litigation Handbook 2012 (2 volumes012. Social Security and Medicare Answer Book 4e with 2013

supplement

Give your bid to the law librarian through the end of February.Bids must indicate your name, phone number, amount, anditem(s) on which you are bidding. Winners will be notified inearly March. We reserve the right to withdraw an item frombidding.

ATTORNEY BOOKKEEPING TIPS

BOOKKEEPING MATTERSFor 2014 license fee/dues, the non-deductible portion for the WSBA(Washington State Bar Association) and MBA (Multnomah BarAssociation) are as follows. Tip: Record the non-deductible portionunder a separate category to easily identify.

Ø WSBA ~~~ $7.92Ø MBA ~~~ $5.00

The IRS mileage reimbursement rates are:Ø 56.5¢ per mile for 2013Ø 56¢ per mile for 2014

In general, meals are limited to 50% deductibility. Holiday companyparties for employees are 100% deductible.


LISA DARCOCCBA Office Manager

EMANUELA SANDRIAttorney Bookkeeping Services, Inc.

MARIA SOSNOWSKILaw Librarian

Reproduced with permission. For more cartoons and information, go to http://www.legallydrawn.com.

LEGALLY DRAWNDon't be the 29th wheel.

Advertise in next month’s HEARSAYCall Lisa Darco at 360.695.5975 for rates and availability.

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The Clark County Bar Association Presents:

What’s New In Ethics

Presented by Lainie Hammond & Gale Kirsopp

Wednesday, March 5, 2014 12:45 pm—1:45 pm

Red Lion in at the Quay

1 CLE Ethics Credit—$25.00

To register: call the CCBA at (360) 695-5975, OR email: [email protected], OR

FAX this flyer to (360) 737-6891 with your BAR NUMBER _____________________________,

NAME _____________________________________ PHONE #__________________________,

and EMAIL ___________________________________________________________________.

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Susan Arney, Executive DirectorAshley Belisle, Program CoordinatorAdministrative: 360-823-0423E-mail: [email protected]

Happy New Year! If you haven’t signed up for clinic dates in2014 please contact me soon. The dates are filling up but thereare still plenty left. Remember, you can get free CLE credit forvolunteering. You can get 2 CLE hours for training with me and 4CLE hours for 4 hours of volunteering. That is only 2 clinic dates.

The big event of the year is coming up – The Barrister’s Ball. Thisyear the proceeds will be donated to the Volunteer Lawyers Pro-gram. We really appreciate this and hope all of you will attendand support us. Get your tickets from the Bar Association andjoin us for all the fun.

Thank you for volunteering.Susan

MANY THANKS TO ALL THE ATTORNEYS AND PARALEGALS WHO STAFFED THE ADVICE CLINICS,HOMELESS CLINICS, PROVIDED REPRESENTATION,AND VOLUNTEERED IN THE HOMELESS COURT INTHE MONTH OF NOVEMBER

DIRECT REPRESENTATIONSusan Hammann, Stanley Horak, Rob Russell,Lisa Toth, Todd Trierweiler

YWCA SAFECHOICE DV CLINIC:Sidney Dolquist, Marlene Hansen, Jeff Holmes

FAMILY LAW:Ed Dawson, Sidney, Dolquist, Marlene Hansen, Susan Hammann, Lincoln Harvey, Scott Horenstein, Brian Parker, Susan Stauffer, Lisa Toth

GENERAL LAW:Michael Borge, Stewart Martin

HOMELESS COURT:Heather Carroll, Jeff Courser, Todd George, Abby Powell,Diane Sweet

HOMELESS SHELTER:Peter Fels, Gavin Flynn

HOUSING JUSTICE PROJECT:Matt Crawford, Tresa Cavanaugh, Ed Dawson,Scott Matthews, David Nordeen

HOME FORECLOSURE PROJECT:Janie Wilson

Statistics for NOVEMBER

“Like Us”onstay connected

facebook.com/CCBAWA


This month, the CCBA introduces Aaron Wakamatsu: food blog-ger, YouTube entertainer, and contributing author. On the coverphoto, Aaron tackles a 6-pound cinnamon roll at Stuffy’s II inLongview, WA.

For the past two years, Hearsay has uncovered and highlightedClark County Bar Association members involved in interestingnon-lawyer activities. Past features included Allen Harvey (volun-teering as a ski patrol rescuer), Jonathan Gill (donninga clown costume to raise money for ShrinersHospital), Terry Lee (organizing summerconcerts at Esther Short Park), and SteveBusick (driving the same VolkswagenBeetle for over 30 years).

Now, there’s a food blogger in thecommunity who eats almost anything.Spicy foods, sweet treats, and evencombinations one may find repulsive ordisgusting.

How appropriate that Clark County has a dual-threatwarrior: in the foodie world and in the legal community.

Aaron Wakamatsu, associate attorney at Salmon Creek LawOffices, specializes in landlord-tenant law. Aaron was born andraised in Hawaii, on the island of Oahu. His father worked for thenow-defunct Aloha Airlines, while his mother works at HawaiianElectric Company in Honolulu. Aaron attended the University ofHawaii at Manoa, majoring in Economics and obtaining a minorin English. After working a few part-time jobs, Aaron earned hislaw degree at Willamette University.

Before becoming an attorney, Aaron started Aaron’s Food Adven-tures in May 2011, a food blog covering restaurants and food cartsin several U.S. states. Aaron also added Canada to his food adven-tures in November 2013. Aaron continues his weekly blogs todate, usually highlighting two or three places per week.

There are currently over 700 licensed food carts in Portland.About 450 are currently open for business, as some food carts maybe seasonal operations or on hiatus. Aaron has covered hundredsof Portland’s food carts alongside other Portland food bloggers.Check out Aaron’s blog at http://www.foodreviews.aaronwaka-matsu.com/. But beware, his posts may make you hungry!

Some of Aaron’s Portland food cart recommendations includeBig Ass Sandwiches (huge sandwiches with hand-cut fries insidethe sandwich), Chez Dodo (Mauritian cuisine), Pepper Box(New Mexican and Tex Mex-inspired dishes), and PDX 671(Guamanian food). For dessert, check out Salt & Straw, a busi-ness that started as a tiny ice cream push cart. Three scoop shops later, Salt & Straw has arguably the best ice cream in the Rose City.

Eventually, food writing was not enough forAaron. He started a YouTube channel in

August 2012, initially intending to focuson Portland’s food cart scene. After atrip to Salvador Molly’s to completethe “Great Balls of Fire” habanerofritter challenge, Aaron put a primaryfocus on spicy food for his YouTube

videos. You can find all of his videos athttp://www.youtube.com/user/Aaron-

FoodAdventures.

Whether it was reviewing ghost pepper tortilla chipsor eating an entire Carolina Reaper pepper (given the GuinnessWorld Record for world’s hottest pepper in November 2013),Aaron developed a willingness to deal with the pain.

Eating 10 McDonald’s hamburgers has been done before, butprobably not while chugging ghost pepper sauce with those ham-burgers. Ever wonder what wing sauce and pepper extract tastelike on Twinkies? Aaron also tried that one (“not good, but nothorrible”).

Eerily, Aaron appeared to enjoy putting himself through uncom-fortable stunts on a few videos. Aaron randomly came up with thenickname “spicochist” (a portmanteau of “spicy” and“masochist”) in 2012, and the name has stuck since.

While you may see large food challenges on his YouTube channel(such as Beth’s Café 12-egg omelet) or non-spicy food reviews(ever try a kangaroo taco?), spicy food clearly remains Aaron’s pri-mary passion.

While Aaron continues his food blog and YouTube channel, hehas also submitted pieces for forthcoming publications as a con-tributing food writer. Both are scheduled for release later in 2014.

A Food WarriorHEARSAY STAFF

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You may know that at the end of 2013 LoriVolkman retired from the Clark CountyProsecutor’s Office after 13 years of service.She has opened her own strategic communi-cations business and continues to advocatefor the Military Spouse, especially thosewith their J.D. She is also the Communica-tions Director for the organization Military

Spouse JD Network at www.msjdn.org. Looking forward tohearing more from Lori in her new world!

Say it isn’t so, Judge JohnNichols! Well repeated, and con-firmed rumor, is that JudgeNichols will retire at the end of2014 to spend more time withhis lovely wife, who is also retir-ing from the world of Real Estate,and to spend more time with kids

and grandkids. Life is too short! We will all miss his wry brand ofhumor and the unending patience he has honed over the last cou-ple of decades. Time to set for trial those lingering cases youhave. With this much lead time the list for his replacement couldreach double digits!

So if you practice in the Dead Zone (those of you with Estate,Trust, Guardianship, VAPO practices), you may know vibrantand zany Victoria Blachly, who hails from Portland, but is just ashome on this side of the river. Victoria is a hard-headed litigatorwith an eye for fun. Having attended the Simon Benson Awardsdinner in Portland several months ago, she was delighted to beintroduced to the keynote speaker that evening, AndersonCooper. Cooper captivated his audience with stories of travel-

ing around the world covering thebiggest stories of the decade. Thebest part was the photography ses-sion. Who wouldn’t want a hugfrom Anderson Cooper?

And a little something to warmthe cockles of your heart this Jan-uary day, is the story of Evan Hulland the notice the Columbian tookto his goal to end homelessness one person at a time. Evan is aboard vice president of Open House Ministries, an organizationthat provides transitional housing and job training for homelessfamilies. Evan has personally assisted several families, paying his

own funds to help keep them in their homes.Evan helped one family where the motheradmitted in Family Treatment Court thatshe would likely lose her residence, whichwould also mean losing her chance to regaincustody of her children. Evan heard thestory and provided funds to keep her home,and one of her daughters was allowed toreturn and live with her. In return, the fam-ily has provided volunteer hours at Open

House Ministries and is thankful that someone gave them achance. If you are also interested in helping, give Evan a shoutout next time you see him in the Courthouse.

Your esteemed colleague Raisa Judicata can’t be everywhere. If youhave a tidbit of news you would like the world to know, send a noteto [email protected]. Raisa usually checks in the first Mon-day of every month. Remember, it is your ethical duty to supportyour member organization with juicy gossip and goings on.

Victoria Blachly and Anderson Cooper – who would think he could get silly?

Evan Hull is a hero for thehomeless


CCBA CLE CalendarRegister now for any of our upcoming CLEs.

N&B The Nuts & Bolts of Handling aSexual Harassment CaseGideon Caron

Brown Bag CLE – Dog Bite & Animal LawDavid Nordeen & Denise Lukins

CLE –What’s New In EthicsLainie Hammond

N&B Estate Planning and CharitableGivingJill Sasser &Rafik Fouad, Financial Advisor

GAL Title 11 Certification

N&B Employment Law Basics for theBusiness LawyerEmily Sheldrick

N&B Immigration Law and its Impact inCriminal, Family and Employment LawCasesGretel Ness, Chris Anders & Tilman Hasche

N&B –Working with Medical ExpertsJane Clark & David Nordeen

N&B CLEs: $50 for Members$70 for Non – Members

General CLEs: $35/Hour for Members$45/Hour for Non Members

What CCBAMembers AreDoing About TownRAISA JUDICATAGuest Gossip Columnist

DOUBLE HEARSAY

Lori Volkman has her eyeon the Capitol!

Judge John Nichols will be missed!


December 4, 2013

Board members in attendance: J. Clark (presiding); A. Dunn(preparing minutes); J. Sasser; J. Fairgrieve, G. Caron; and L.Mancuso. LeeAnn Larson attending. Staff in attendance: L. Darco.

1. J.Clark called the meeting to order at 12:08 PM.

2. Approval of minutes from November 6, 2013. On motionduly made and seconded, and passed, minutes are APPROVED.

3. Treasurer’s Report. Tabled for discussion as JD isunavailable today in court.

4. Old Business.

a. Mentorship Program. Fairgrieve explained that he is workingwith a few interested mentees. Discussion of a possible monthlylunch.

b. Barrister’s Ball. Darco met with WildBill’s to set up casinonight options, dealers, etc. Clark: excited about developing anew theme that will hopefully resonate with members. Dunn:interested in keeping costs down as requested by members ofYLS. Darco is evaluating costs for Heathman. Total cost isestimated to be $13,149 if 150 people attend. The cost is perperson. Actual costs are estimated to be $85/person. Subsidiesby CCBA and sponsorships are estimated to allow ticket pricesat $35/person with game revenue to go to the charity. Mustobtain a liquor license to have wine at the auction. Discussionof possibly selling drinks and paying corkage fee to the venue.No host bar and wine/beer is not included in basic cost ofattending the event. The CCBA is expected to contribute$8,500, which is budgeted. Maximum capacity is 150 people atthis venue.

i. Clark Motion: Motion to charge $35/person (forMember and guest) and $55/person (non-Members). Onmotion duly made and seconded, and passed, motion isAPPROVED.

c. Bylaws. Discussion by the Board of issues to improve theBylaws. Mancuso drafted extensive changes by variousmembers and consolidated those issues in a single draft.

d. Policies and Procedures Manual. Darco and Dunn haveobtained draft language from the KCBA and plan to use that

language as a template for the CCBA to adapt rules andprocedures for its own use.

e. Attorney Service Day. Sasser is targeting a May/June serviceproject.

f. Holiday Ship Event. 86 confirmed attendees with a waitlist.The CCBA hopes to accommodate all members that want toattend to the best of its ability. The response and interest in thisevent was a welcome but unexpected surprise. Apologies toanyone on the waitlist for the uncertainty.

g. Directory. The CCBA conducted a SurveyMonkey survey onwhether to include all local attorneys or merely CCBAmembers. 124 people responded, a majority of the membership,responded. Survey said: 61% of responders vote to include alllocal attorneys in the CCBA database to be in the CCBADirectory. The Board agrees and will highlight CCBA members.

i. Sasser Motion: Motion to highlight CCBA members inbold or similar identifier and to omit practice areas for non-members. On motion duly made and seconded, andpassed, motion is APPROVED.

h. Website. Darco, Randy Grafton, and Dunn met to design thewebsite. The initial website should be available by the first of theyear. Caron will head a subcommittee to consider advertisingcosts.

i. Caron Motion: Motion to give members a 10% discount onadvertising off current non-member rates in Hearsay which aresubject to change without notice. Advertising rates will beseparate for Hearsay and the Website. On motion duly madeand seconded, and passed, motion is APPROVED.

i Supreme Court Social. They are coming and the CCBAwill further discuss logistics when a date is set.

j. New possible Awards. Discussion of a number of newcategories for awards.

5. There being no more business before the board, on motionduly made, seconded, and passed, the board meeting isADJOURNED, 1:23 PM.

CCBA Board Meeting MinutesARIN DUNNCCBA Vice President

work is performed, not simply whether there is an actual exerciseof control over the manner in which the work is performed.Kamla, 147 Wn.2d at 121.

The Supreme Court also analyzed in Kamla the issue of a jobsiteowner’s statutory duty to employees of subcontractors underRCW 49.17.060(2) to ensure compliance with WISHA safetyregulations. The Court stated the law regarding a jobsiteowner’s statutory duty to ensure compliance with safetyregulations as follows:

Although jobsite owners may have a similar degree of authorityto control jobsite work conditions, they do not necessarily havea similar degree of knowledge or expertise about WISHAcompliant work conditions. Jobsite owners can run the gamutfrom an owner/developer with the same degree of knowledgeabout WISHA compliant work conditions as that of a generalcontractor to a public corporation without any knowledge aboutWISHA regulations governing a specific trade. Because jobsiteowners may not have knowledge about the manner in which ajob should be performed or about WISHA compliant workconditions, it is unrealistic to conclude all jobsite ownersnecessarily control work conditions. Instead, some jobsiteowners may reasonably rely on the contractors they hire toensure WISHA compliance because those jobsite owners cannotpractically instruct contractors on how to complete the worksafely and properly.

If a jobsite owner does not retain control over the manner inwhich an independent contractor completes its work, the jobsiteowner does not have a duty under WISHA to “comply with therules, regulations, and orders promulgated under [chapter 49.17RCW].” RCW 49.17.060(2). Kamla, 147 Wn.2d at 124-125.

Thus, under Kamla, a jobsite owner that retains control orsupervisory authority over the manner in which an independentcontractor performs its work has a nondelegable duty to ensurecompliance with WISHA regulations under RCW 49.17.060(2).Afoa, 160 Wn. App. at 245, 247 P.3d at 489. Unlike the SpaceNeedle, which had no expertise in the type of work being done bythe subcontractor in Kamla (pyrotechnics), the regional grocerystore was a sophisticated jobsite owner with extensive experienceand expertise in the type of work being done by its contractor(moving trucks and cargo in a warehouse/distribution center).The facts show that the grocery store was “in the best position,both financially and structurally, to ensure WISHA complianceor provide safety equipment to workers . . . .” Kamla, 147 Wn.2dat 124.

The Supreme Court held in Kamla that the test for “control” is“whether there is retention of the right to direct the manner inwhich the work is performed.” Kamla, 147 Wn.2d at 121. Whethera right to control has been retained depends on the parties’ contract,the parties’ conduct, and other relevant factors. Phillips v. KaiserAluminum, 74 Wn. App. 741, 875 P.2d 1228 (1994).

Plaintiff argued that the evidence established as a matter of lawthat the grocery store exercised substantial control over how thecontractor personnel performed their work at the store’sdistribution center. The grocery store retained exclusive controlover the worksite, from controlling access onto the site to havingsole control of the layout of the site, pavement markings, andlighting at the site. The grocery store controlled the speed limitin the yard and required the contractor’s personnel to follow itssafety rules. The grocery store required computer screens in thecontractor’s yard trucks so that dock supervisors could monitoractivity in the yard, and dock supervisors/load planners directedthe contractor’s employees as to which trailers to move andwhere to move them on a daily basis.

Employer’s WISHA Duties to Independent ContractorsPlaintiff argued that the grocery store had a duty to employees ofits contractor to ensure compliance with WISHA regulationsbecause it retained (and exercised) control over how thecontractor’s employees performed their work. Plaintiff alsoargued that the undisputed facts established that the storeviolated its duty to ensure compliance with WISHA workplacesafety regulations requiring adequate lighting.

When a jobsite owner retains authority to control anindependent contractor’s work on a jobsite, the jobsite ownerhas the same responsibility to ensure compliance with WISHAsafety regulations that a general contractor has with respect toemployees of subcontractors. See, e.g., Kinney v. Space NeedleCorp., 121 Wn. App. 242, 248-249, 85 P.3d 918 (2004). UnderRCW 49.17.060(2), a general contractor or a jobsite owner thatretains control over the work of an independent contractor has anondelegable duty to employees of the independent contractorto ensure compliance with all WISHA regulations. See, e.g.,Morris v. Vaagen Bros. Lumber, Inc., 130 Wn. App. 243, 253, 125P.3d 141 (2005). Here, the grocery store had a nondelegableduty to ensure compliance with WISHA safety regulationsbecause of its retention and exercise of control over thecontractor’s work and worksite and its experience andknowledge operating distribution centers.

Summary Judgment Defeated – the parties settleThe trial court judge heard the grocery store’ summaryjudgment motion and denied it. This put the case on a trial trackand plaintiff’s experts were ready to testify. After extensivediscovery and the denial of summary judgment, the partiesagreed to mediate the case. After an intense mediation, the casewas resolved for $2.5M in total damages.

This was one of the most satisfying cases of my career. It is reallyenjoyable to successfully pursue a case that was previouslyrejected by another firm. Even more important, we were able tohelp a deserving widow obtain a monetary recovery on well-grounded legal principles.

HEARSAY - JANUARY 2014 27 10 CLARK COUNTY BAR ASSOCIATION

The Clark County Bar Association is pleased to announce its

Thirty Sixth Nuts and Bolts Lecture:

The Nuts & Bolts of Handling a Sexual Harassment Case

Presented by Gideon Caron

Wednesday, February 12, 2014, 3:00 PM – 5:00 PM Red Lion at the Quay

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Since the grocery store did not provide any designated walkwayor crosswalk for truckers to use to get from the designated truckparking area to the office, line drivers like John had to walkthrough this hub of activity, dodging goats and truck traffic. Thiswould be not unlike the video game “Frogger”.

The work area between the parking area and the office was darkand unlighted. A co-worker driving a loading truck had justparked a trailer in the dock. After pulling out from the dock, thedriver made a sudden U-turn to pick up a dolly. The driver failedto see John and ran him over with the loader, severely injuringJohn. John died in the hospital five days later as a result of hisinjuries.

Linda, John’s widow, was by John’s side during the five days hewas in the hospital. She watched her husband go throughtremendous amounts of pain, in and out of surgery, andeventually witnessed John’s death.

While John was in the hospital, Linda contacted a big regionallaw firm. She had seen their advertisement on TV and decidedto contact them to discuss her husband being run over at work.The firm met with Linda and agreed to take a look into theincident. The firm even sent one of their employees to thehospital to take photographs of John, Linda and their family inJohn’s ICU room prior to John’s death.

A Washington Department of Labor and Industriesinvestigation was launched after the accident. That investigationfound the lighting where John was struck to be well below thelighting levels required by the Washington Administrative Code.The DLI cited the grocery store for this unsafe work area, notingthat the grocery store was “the creating and controllingemployer” for purposes of yard safety.

The incident was also investigated by the Puyallup PoliceDepartment. The reporting Detective stated in his police reportthat there was “Little ambient lighting. The location of thecollision was fairly dark.” The Detective further reported thatthe loader drivers drove quickly while moving the trailersaround in the yard. Detective Lewis found that the grocery storehad no policy regarding the use of designated pedestrian walkingpaths and that the truck drivers were not required to wearreflective safety vests when walking in the yard.

The conclusions I drew from these materials was that thegrocery store was responsible for and had control over outdoorlighting and pavement markings at the Distribution Center.Also, it was clearly known to the grocery store that truck driverswalk through the trucking yard to get from the parking area tothe office given the location of the parking area and the office.

As the litigation commenced, one of the grocery store’s securityguards at the Puyallup distribution center testified that he hadbeen concerned about being seen when walking in the yard atnight because it got very dark in the yard. About two monthsbefore the incident, the guard talked with his supervisor, a lossprevention manager, about equipping security personnel with

safety vests while walking around the yard. Simply put,plaintiffs had evidence to support the argument that the grocerystore protected its own employees with safety vests, but did notwarn outside drivers of the illegally dark work area or requirethem to wear safety vests in the yard.

Plaintiff’s Theories of Liability1) Failure to have adequate/proper lighting in the yard (i.e., the

available artificial lighting in the yard fell well-belowapplicable regulations);

2) Failure to have a designated pedestrian walkway for driverswho must walk through the hub of activity between the truckparking area and the office;

3) Failure to require safety vests for all pedestrians in the yard;4) Breach of the common law duty of maintaining its premises in

a reasonably safe condition;5) Breach of WISHA regulations;6) Placing a computer screen in the goat which creates a blind

spot to the right , (i.e., where the goat struck John)

The grocery store filed its motion for Summary Judgmentagainst the widow on the following grounds: 1) No breach ofduty as Landowner; 2) No affirmative active of negligence; and3) No breach of duty to John, since the grocery store had hiredJohn’s company as an independent contractor.

Plaintiff argued that since the grocery store owned the land, hadfull control of the distribution center, and gave specificinstruction to the contracted drivers. The grocery store wasresponsible for maintaining the distribution center, and makingit safe for all business invitees.

Employer Liability for Independent ContractorsIn general, an employer that contracts with an independentcontractor is not liable for injuries sustained by the independentcontractor’s employees. However, an employer does haveliability for injuries to an independent contractor’s employeeswhen the employer retains control over some part of theindependent contractor’s work. Afoa v. Port of Seattle, 160 Wn.App. 234, 239, 247 P.3d 482, 485 (2011).

The Supreme Court addressed the issue of a property owner’sliability to employees of subcontractors in Kamla v. Space NeedleCorp., 147 Wn.2d 114, 52 P.3d 472 (2002). Kamla involved aclaim by an employee of a pyrotechnics company that wasinstalling a fireworks display at the Space Needle. Thepyrotechnic worker’s safety line dragged across an open elevatorshaft at the 200-foot level of the Space Needle. While he wasworking, the elevator traveled down the shaft, snagged his safetyline, and dragged him through the elevator shaft. The SpaceNeedle argued that the test for control should be actual controlrather than retention of the right to control. The Supreme Courtconcluded as follows:

We cannot accept Space Needle’s implicit invitation to abandonthe “retained control” inquiry. When we distill the principlesevident in our case law, the proper inquiry becomes whetherthere is a retention of the right to direct the manner in which the


Family Law Section December ReportMEREDITH MCKELL GRAFFSecretary/Editor

The December Family Law Section had a visit from Santa,otherwise known as Judge Gonzales, and his helper, “Gigi”Darfluer, at the Hilton Hotel on December 12, 2013. Nospeaker or CLE credits were offered for this meeting.

Among the notable gifts distributed by “Santa,” was abook on dinosaurs for new attorney, Faye BreitReed, so that shecould readily identify the different attorneys she would beencountering in her family law practice; a “glow in the dark”rubber snake for Vern McCray, so that he could recognize thereal “snakes in the grass” that he deals with; and a tropical islandcalendar for Alison Greene, because she travels so much towarm, tropical places. Judge Rulli received a penalty flag tothrow down when long-winded attorneys don’t take the hint andstop their oral arguments! Guardian ad Litem registrant, PennyVian, was given an undercover spy kit to assist her with her GALinvestigations. Marie Tilden received a magic wand to make herdifficult clients disappear! Laura Mancuso received a scentedcandle for her office to improve the scents of three maleattorneys that she works with. Scott Horenstein was given some

new dental veneers with lovely bling on one tooth to spruce uphis appearance. Santa surprised Terry Lee with T Rex bubblesso that he can appear less intimidating at court if he blows thebubbles while making his arguments! There were many moredistributed and we had a great turn out!

The next meeting will be January 9, 2014 at the HiltonHotel, which has been working out great for the section. TheHilton has more space than our previous locations, and the foodis always great. An email will be going out to all Family Lawsection members in the next couple of weeks announcing thetopic and speaker for January’s meeting. If you aren’t on theFamily Law Section “Evite” list, contact Matthew Blum,President, at [email protected] or 360-690-0822 to beadded to the list. There are six more meetings before we breakfor the summer, and the opportunity to get 6 hours of CLEcredit at a very reasonable price, along with a great lunch. Wehope to see you at our next meeting!

Young Lawyers’ SectionELIZABETH ARWOODYLS President

Our annual holiday party, at Shannahan's, was well-attended andtook place on Thursday December 5th and included a fun whiteelephant gift exchange.

The Young Lawyer Section Board met on Wednesday January 8,2014 to discuss spring events. Present at the meeting wasElizabeth Arwood, President; Nathan Petersen, Vice President;Travis O'Neil, Treasurer; Katie Sinclair, Secretary; Social Chair,Jeff Ott; and Immediate Past President, Christie Martin. Here iswhat we are working on:

1) In lieu of January and February Happy Hour, we are workingon scheduling group seats for a Portland Trail Blazers basketballgame. Date and details will follow by email to YLS members. Ifyou are not a YLS member, or do not get YLS emails, but areinterested in attending, please [email protected].

2) We are also looking at the possibility scheduling a groupevent for a Portland Winter Hawks sometime in January orFebruary and a Portland Timbers game in the Fall.

3) YLS CLE series will resume in the Spring. We are consideringchanging the time from the lunch to 4 or 5 p.m. and combing theCLEs with our monthly happy hour. Specific details will follow.

4) We are working on sponsoring a First Responder Will Clinic.Christie Martin is communicating with the State Bar to arrangeattendance at a training. Lawyers will volunteer at the clinic toprovide basic estate planning documents to First Responders.

YLS events are not just for new bar members. We welcome andappreciate attendance from more experienced attorneys as well.We look forward to seeing you at some of our upcoming SpringEvents!

If you have seen Grant Gehrmannaround the Courthouse, you wouldlook around for movie cameras. Heis pretty distinguished and looks likehe could be a movie star. He is,however, a very committed personalinjury attorney, and at least one ofhis stories could be a made-for-TVmovie.

Here is his story on how a case that was rejected by a largeregional firm ended with Grant getting a $2,500,000.00 recoveryfor his client:

When I receive a call from a potential client that has been “fired”by another law firm my first instinct is to be somewhat careful inmy evaluation of the case. I generally assume that the case wascarefully and properly evaluated, particularly when done by ahigh-profile regional injury law firm.

This was my mindset when I got a call from Linda, who had losther husband in a tragic accident at a commercial truck loadingyard near Tacoma. Linda’s husband had been run over andkilled by a co-worker driving a loading truck. The regional lawfirm had sent Linda a letter withdrawing from the case becauseLinda had no legal claims other than a worker’s compensationclaim. Linda did not understand the details of how her husbandhad been killed. She was seeking another attorney to help her atleast understand the details of how John had been killed andwhether she could do anything to make sure it did not happen toanyone else at that facility in the future.

I agreed to help Linda and began my investigation by obtainingthe police reports and all DLI investigation reports about thefatal accidents. The police reports and DLI investigation reportswere clearly important documents, but they were not in the filesent down to my office from the Seattle firm.

After obtaining the DLI reports myself, I saw that these reportsincluded a detailed analysis alleging non-compliance with WACjobsite requirements. After reading these reports, along with thepolice reports, it became clear to me that the other law firmmade a critical mistake in not fully evaluating and advising theclient on a premises liability claim. I was very relieved that wewere still within the statute of limitations and that Linda haddecided to call me for a second opinion.

What we can all glean from the first part of my story are threekey things:

1) Obtain and review all key evidence before closing out a file; 2) Do not tell a client that she does not have a claim unless you

REALLY KNOW the client does not have a claim; and 3) If you are the “second opinion” attorney, don’t assume that

the first law office was correct in its legal analysis—give thecase a fresh look.

Facts of the CaseA large regional grocery store owns and operates a distributioncenter in Puyallup. The “distribution center” (DC) is a hugefacility that has trucks from all over the northwest coming in,unloading shipped product to the DC, and also loading trucks fordelivery to grocery stores in the Pacific Northwest and Alaska.

Linda’s husband, John, was an employee (semi-truck driver) of acompany in contract with the grocery store to transportmerchandise from the store’s distribution center to the store. Inother words, John’s company provided drivers, semi-trucks, yardtrucks, and trailers for the transport of the grocery store’smerchandise out of the distribution center.

The trailers for the semi-trucks were moved to and from docksfor loading. The trailers were moved around the distributioncenter by yard trucks, which are like big forklifts and are speciallydesigned to attach to trailers to move them. The yard truckswere equipped with a knob on the steering wheel, which allowsthem to turn quickly.

The grocery store’s loading yard had a high volume of traffic,both vehicle and pedestrian. Despite the pedestrian traffic, thegrocery store had not designated a walkway or crosswalk forpedestrians to get from the parking area to the building to gettheir agendas and/or go to the break room. In addition to thelack of a designated walking area for pedestrians, the ground alsohad significantly low lighting for a work area.

On the day of the accident, John had delivered a load of cargo tothe distribution center. While John waited for his cargo to beunloaded, he went to the provided break room at thedistribution center.

John had parked in the designated parking area for truckers. Toget from the parking area to the break room, all drivers had towalk about 75 yards across the main working area for hostlers,who were busy moving trailers to the warehouse docks forloading and unloading of grocery products. The grocery store’strucking expert admitted that this area is a “hub of activity” forthe distribution center.

Premises LiabilityClark County Attorney Takes a Second Look


The meeting began shortly after noon. Persons present wereJudge Robert Lewis, Judge John Nichols, Ann Christian, JoleneSell, Emily Sheldrick, Karen Campbell and John Fairgrieve.

OLD BUSINESS:1. Competency Evaluations and Western State Hospital(WSH): Judge Lewis told the committee that WSH is not meet-ing its target of completing 50% of competency evaluations incriminal cases within its timelines, and that there is a need tofind out if there are any local psychologists interested in con-ducting competency evaluations for the state authorizedcompensation ($800 per evaluation conducted). Ann Christiantold the committee that she would reach out to local psycholo-gists, gather information, and report back to the committee.

2. Publishing Jury Selection Procedures: Judges Nichols andLewis told the committee that they had each been interviewed byClark College Paralegal Program students and that the processseems to be moving forward. Emily Sheldrick told the committeethat the goal is to finish the project by the end of the year.

3. Restoration of the Right to Bear Arms- Criminal or CivilProceeding: The Judges told the committee that a local rule out-lining how petitions to restore firearms rights will be handled inour county is in the process of being drafted.

4. Jail Access. Ann Christian told the committee that she hasrecently spoken to a number of criminal defense attorneys andthat attorney access to criminal defendants in the jail does notseem to be a problem at this time.

5. Readiness Docket: Judge Lewis reported that due to the sizeof the docket for November 27 it will be split into four dockets,two handling readiness hearings and two dealing with changes ofplea. He told the committee that the next few weeks are better,

but that one of the readiness dockets for January 2014 alreadyhas 107 items on it.

NEW BUSINESS1. Indigent Criminal Defense Contracts: Ann Christian toldthe committee that she is providing the superior court judgeswith a calendar that has the names of the indigent defense attor-ney contractors on it and the number of points each hasremaining on his or her contract. Ann further stated that nextyear Vancouver Defenders has a slightly larger contract but therewere no other major changes in the criminal defense contractsfor next year.

2. 2014 Mock Trial: Judge Lewis told the committee that thisyear’s Clark County Mock Trial competition will occur the sec-ond week in February. He stated that he would be meeting soonwith volunteers to organize the competition.

Judge Lewis subsequently provided the following information inan e-mail on January 8:

The competition will be held on Wednesday, February 12 andThursday, February 13. There will be six rounds of competition,with 4 trials each round. The round start times will be:

Wednesday, 2/12 Thursday, 2/131 - 12:30-3:00 4 - 12:30-3:002 - 3:00-5:30 5 - 3:00-5:303 - 5:30-8:00pm 6 - 5:30-8:00pm

There will be no championship round. Results will beannounced Thursday night at around 8:15pm. (All times areapproximate, depending on conditions -- raters should be pre-pared to be flexible).

SUPERIOR COURT BENCH/BAR COMMITTEE

MEETING MINUTESDECEMBER 12, 2013

JOHN FAIRGRIEVEHearsay Special Correspondent

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We will need 12-15 raters per round. The goal is to sign up asmany attorneys as possible, so raters will not have to judge mul-tiple rounds. Raters should come to the jury assembly roomabout 15-20 minutes before the round starts, to receive theirassignments, last minute orientation, and food and drink.

Attorneys interested in participating as raters or judges in thecompetition should contact Jill Sasser([email protected]), who has agreed to serve as volun-

teer coordinator this year. Please provide contact informationand the round or rounds you are willing to rate.

3. Next Meeting: The next bench/bar meeting will be held onJanuary 14, 2104 at 12:00 p.m. in Judge Nichols’ jury delibera-tion room.

Respectfully submitted,John Fairgrieve

Bench Bar Meeting, Wednesday Jan 22, 2014Noon - 1:00 pm in Judge Zimmerman's Court Room, Second Floor

Agenda:• Warrants - Mark Muenster• Booking levels for release on warrants - Chief Bishop• City of Vancouver's DWS lll Diversion Program - Kevin McClure

District Court Bench Bar


Thirty Eighth Nuts and Bolts Lecture:

Employment Law Basics for the Business Lawyer

Presented by Emily Sheldrick

Wednesday, April 16, 2014, 3:00 PM – 5:00 PM Red Lion at the Quay

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Special thanksto our Barristers’ Ball sponsors!

We are looking forward to a fun and exciting Barristers’ Ball onMarch 1st, at 5:30 pm, at the Heathman Lodge.

All proceeds from the event will benefit the Clark County Volunteer Lawyers Program. As a non-profit organization, events like this depend upon sponsors like these.

The CCBA wishes to express our thanks to our sponsors for making this evening possible.

Sponsorship opportunities are still available!

Call the CCBA office at (360) 695-5975to sponsor a casino table or make a donation.

ATTORNEYBOOKKEEPINGSERVICES, Inc.


U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469). In essence, theCourt said that the standard of general scientific acceptance wasnot as important as whether expert testimony can assist jurors.Soon thereafter, several federal courts reconsidered their long-standing ban on polygraph evidence and determined that theynow had the discretion to permit its introduction at trial.

Congress also reexamined the use of the polygraph in industry.In 1988, lawmakers responded to civil liberty concerns aboutthe abuse of polygraph testing in private industry by passing theEmployee Polygraph Protection Act (29 U.S.C.A. §§ 2001 etseq.). The law bars preemployment testing in banking, retail, andother private industries and also makes it illegal for employers tofire, discriminate against, or discipline employees who refuse tosubmit to polygraph tests. The act exempts governmentemployers, private industry when an employee is underinvestigation for economic injury suffered by the employer, andall security services and industries that manufacture, distribute,or dispense controlled substances.

In military trials, the situation was different. In United States v.Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413(1998), the Supreme Court addressed the claim of airmanEdward G. Scheffer that prohibiting the introduction ofpolygraph evidence during his Court-Martial (military criminaltrial) violated his constitutional rights. Under Military Rule ofEvidence 707, polygraph evidence is not allowed in court-martial proceedings. So, although Scheffer, who was accused of,among other things, taking illegal drugs, passed a polygraph, itwas inadmissible as evidence. A federal court of appeals reversedthe court-martial, stating that excluding the polygraph evidencedid, in fact, violate Scheffer's right to present a defense asguaranteed by the Sixth Amendment. Upon review, theSupreme Court upheld Military Rule of Evidence 707. In theopinion of the Court, "State and federal governmentsunquestionably have a legitimate interest in ensuring thatreliable evidence is presented to the trier of fact in a criminaltrial." However, "there is simply no consensus that polygraphevidence is reliable."

(-Much of the above information from West’s Encyclopedia ofAmerican Law, 2nd Ed.)

WASHINGTON LAWIn Washington, administering polygraphs to job applicants isillegal, and actually a misdemeanor. RCW 49.44.120 et seq. Theexception to this rule is that polys are authorized for lawenforcement agencies applicants and agencies that handlecontrolled substances, plus federal and military. Supra

Polys may also be administered to sexual psychopaths as part oftheir evaluation and treatment, plus plethysmographs, a distantelectronic cousin of the polygraph, may be used. RCW 71.09.096

By statute, a prosecutor may consider the results of a polygraphexam when making a charging decision. RCW 9.94A.411

STEVE NORTON, PRIVATE POLYGRAPH OPERATORSteve Norton, the only local full-time private polygraph operator

in Clark County, is a retired Vancouver police investigator whohas administered in his career more than 7,000 polygraph exams.

Steve says criminal defense attorneys often seek his services tosee if a client is lying, or to get control of a client (by showinghe’s lying about the crime) or to present the results to theprosecutor.

CAN THE POLYGRAPH EXAM BE BEATEN?Steve agrees that it can if a subject has plenty of access to theinstrument and lots of time and mentoring on how to deceivethe test. He says such instances are rare and can usually bedetected by a skillful operator. He rates in general the polygraphresults as over 90 percent accurate depending on the test format.

CHUCK CORRIGAN

Administering the polygraph exam. Note that the equipment is basically a PC wired to thesubject. Big black polygraph machines are no longer used.

Let your CCBA membership pay for itself! . . .

We are pleased to be partnering with the following vendors who are generously offering discounts to our members!

For the these vendors, simply present your member card to receive the following discounts:

A-Affordable Bail Bonds: 8% bond for any bond over $2500 The Source Climbing Center: Climb 201 at 1/2 price

The Spa at Esther Short Park: 15% off all spa services (excludes hair services) Grays at the Park & Vancouver Pizza Company: 15% off (excludes drinks)

Bleu Door Bakery: 10% off ~ Roots: 10% off lunch only, food only Paci�ic Of�ice Automation: Free enrollment in Platinum Printer Service. Members receive free,

unlimited labor, cleanings and travel time for all printers. (a savings of $150/hour)

Lexis Nexis, Law Pay ,

Of�ice Depot: Call the CCBA of�ice for

details

Vuezz.com: 25% off your entire

purchase. Enter CCBA25 at checkout


ALFRED “ART” BENNETTHearsay Special Correspondent

Polygraph n. a lie detector device, from Greek for “many” (poly)“graph” (message) since numerous physiological responses aretested when questions are asked.

POLYGRAPH - An instrument used to measure physiologicalresponses in humans when they are questioned in order todetermine if their answers are truthful.

Also known as a "lie detector," the polygraph has a controversialhistory in U.S. law. First developed in the late nineteenthcentury, its modern incarnation is an electromechanical devicethat is attached to a subject's body during an interview. Thediscipline of polygraphy is based on the theory that by recordinginvoluntary physiological changes in the subject, the polygraphyields data that can be interpreted to determine whether thesubject is telling the truth. Supporters of the scientific validity ofthe polygraph claim that results are approximately 90 percentaccurate. For much of the twentieth century, however,polygraph evidence was inadmissible in criminal cases ongrounds of unreliability. Polygraph evidence was admissible incivil cases, however, and it was also used widely in lawenforcement, government, and industry.

Polygraphy uses a variety of formats. Until the 1950s the formatwas the relevant/irrelevant (R/I) test; it rested on the nowdiscredited belief that a subject produces a specific identifiablephysiological response when lying. The R/I test has beenreplaced by the control question (CQ) format, the only formatroutinely used in forensic tests. Typically, a trained examiner fitsa subject with sensors to measure respiration, heart rate andblood pressure, and perspiration, and motion sensor, which thepolygraph records using pens on graph paper. The examiner asksa series of questions, including control questions that aredesigned to provoke anxiety and denial. Later, another examinercompares these answers with answers pertaining to the matter athand. This is known as numerical CQ testing. So-called globalCQ testing includes a more subjective component: oneexaminer scores the test while also factoring in the subject's

observable physical responses, such as movement, expression,and voice.

In U.S. courts, the use of the polygraph was first addressed in1923. In refusing to admit polygraph evidence in a murder case,the Court of Appeals for the District of Columbia created a legalstandard that would last for nearly 70 years (Frye v. UnitedStates, 54 App. D.C. 46, 293 F. 1013 [1923]). This standardcame to be known as the Frye rule, or general acceptance test.To be admissible in court, novel Scientific Evidence first musthave gained general acceptance in its scientific field.

The Frye rule applied broadly to all scientific evidence, includingpolygraph evidence. Other appellate courts followed the court'sstandard throughout most of the century, primarily becausepolygraphy never gained widespread acceptance amongscientists. Nonetheless, polygraph evidence was used in civillawsuits, and police agencies, businesses, and government officescontinued to use the polygraph regularly to provide evidence,screen job applicants, and investigate security risks.

Advances in polygraphy helped spur a judicial reevaluation, butmore important was the adoption of the Federal Rules ofEvidence in the 1970s. Rule 702 set an important new standardfor the admission of scientific evidence:

If scientific, technical, or other specialized knowledge will assistthe trier of fact to understand the evidence or to determine a factin issue, a witness qualified as an expert by knowledge, skill,experience, training, or education, may testify thereto in the formof an opinion or otherwise.

Over the next two decades, appellate courts authorized use ofpolygraph evidence in a few state courts, a trend followed by theU.S. Court of Appeals for the Eleventh Circuit and the militarycourts. Then, in 1993, in a case not specifically related to thepolygraph, the U.S. Supreme Court held that Rule 702 replacedthe Frye test (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

What You Always Wanted to Know About Lie Detector Tests,

But Were Afraid to Ask


Thirty Seventh Nuts and Bolts Lecture:

Estate Planning and Charitable Giving

Presented by Jill Sasser and Rafik Fouad

Wednesday, March 12, 2014, 3:00 PM – 5:00 PM Red Lion at the Quay

�

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The George and Donald Simpson Inns of Court is back insession after the holiday break. January’s meeting was a lot funand garnered a large turnout for Judge Johnson’s and JudgeGregerson’s team presentation.

The next meeting will be February 19, 2014 with Judge Nichols’and Judge Langsdorf’s team presenting in line with this year’stheme “Great Cases in History.”

The meetings are at The Quay, located at 100 Columbia Street,Vancouver, WA. They always occur every third Wednesday ofthe month from 5:00 p.m. to 6:30 p.m.

You still may join the Inns in 2014! The meetings will continuethrough the month of May so there is still time to get involved.The Inns offers a wonderful opportunity for the legal communityto get connected while promoting professionalism and ethics.

If you are interested in joining, please contact me [email protected]. For more information aboutthe Inn of Court generally, please visit www.innsofcourt.org.

Inns of CourtELIZABETH CHRISTYInns of Court President

WANTED!!!The Hearsay is in search of new and exciting material and new and exciting contributors!

Please join us on the third Wednesday of every month at noon at the CCBA office! If you have a great idea to share please don't hesitate to contact us.

Call Lisa in the CCBA office at 695-5975

We’ve gotholes in our Lawyer

Referral Service.....and you can fill them!

Call Lisa Darco today! 360.695.5975

Each month the LAWYER REFERRAL SERVICE refers hundreds of po-tential clients to our attorneys. But in some of our referral areas, our at-torneys are ...well ...sparse. This is a great opportunity for YOU! If you practice in any of these areas, consider joining the LRS today!

- ADMINISTRATIVE LAW- CONSUMER- DEBTOR/CREDITOR- LABOR AND EMPLOYMENT

MEMBERSHIP IS ONLY $150 PER YEAR. Plus, we are expanding our advertising efforts to include an active link on our brand new website. . . COMING SOON!

Hear what some of our LRS members have to say:

“The lawyer referral service is a great resource for the public and a great source of work for local attorneys. Not every case is a good case but that is the same no matter where the referral comes from. The fee for joining is reasonable and the way I look at it if you get one good case from the service it will probably more than pay your fee for the next 5 years. I have had several good cases from the services during the 6 years I have been a member.”

~Jane Clark

“The LRS has helped me grow my family law practice, andhas increased the number of family law consultations I do. It is a nice way to attract potential new clients.”

~Elizabeth Arwood


CCBA CLEs: They just make Cents!We know you have options when choosing a CLE.

Here’s why you should take your CLEs from the Clark County Bar Association.

NO ONE FEEDS YOU LIKE WE DO!You know the feeling... you’re trying to stay awake during that afternoon CLE just when your bloodsugar tanks. We offer delicious appetizers and coffee service at each Nuts and Bolts CLE. So stayingawake is not only a breeze... but tasty, too.

COST EFFECTIVEStarting at only $25 per credit hour*, our CLEs offer more value for your money than any other CLEaround *$25/credit: Nuts & Bolts; $35/credit: General CLEs (for CCBA members)

NETWORK WITH LOCAL ATTORNEYSOnly CCBA CLEs give you the benefit of rubbing shoulders with attorneys who work right around thecorner. Our bar association is known for its sense of community. Come see why we are the friendliestcounty bar in the Northwest.

CONVENIENTLY LOCATEDOur CLEs are held in the heart of downtown Vancouver—just a stone’s-throw from the court house.With no traffic headaches or parking problems, our attorneys can get in, get out, and get back to work.

LEARN FROM CLARK COUNTY JUDGESWe plan multiple CLEs throughout the year that include advice and perspectives from our very ownClark County Judges. Learn what they love (and what drives them nuts) so you can be at the top ofyour game when you find yourself in their courtroom. THERE’S SOMETHING FOR EVERYONEThey say ‘you can’t please all the people all the time... But we sure try. Our CLE topics cover a wide rangeof topics—from administrative law to litigation. Join our judges for our annual “View from the Bench”CLE, or grab some last minute Ethics credit in December. There’s something on our calendar for you.

Conference Roomavailable to rent

The CCBA’s office conference roomis available for meetings

and depositions at reasonable rates.

Call Lisa at: 695-5975

Linda E. FrischmeyerATTORNEY

Availablefor Consults

Washington& OregonLicensed

• Wage payment • Independent contractors• Confidentiality• Nonprofits• Non-compete

• Performance • Challenging behaviors• Leave laws • Disability accommodation• Drug testing

Respectful. Clear. Helpful.

[email protected]

805 Broadway, Ste. 1000 • Vancouver, WA 98660

Over 25 Years Assisting to Achieve Employment Goals

Tell me a little about The Source’s history and how it came to be. The Source Climbing Center is the beginning of dreamsrealized for longtime friends ,Guruhans ‘Hanz’ Kroesenand myself. We first met in 2002 and grew as friends whileworking at the Portland Rock Gym. The idea ofVancouver’s own climbing center began in 2007 over apint of beer. After finding local interest and investmenthere in Vancouver, the search for the right location began.Construction began on the new facility in May 2011 andthe new Source Climbing Center opened its doors onNovember 11, 2011.

What’s your favorite thing about climbing?At first, it was the community. Climbing is great exercise;but more importantly, it builds great relationships. Later, Icame to love the movement. There is a flow, and it cantruly feel like a dance. More recently, I've come to mostadmire the commitment and responsibility it requires.Culture often encourages us to ignore or avoid risk.Climbing forces you to face risk and make your owndecisions. In the middle of the climb, you get to be theonly person making those decisions... It is incrediblyempowering.

What would you say to someone who has never climbed before? Try it. Even those people that do not climb again, theynever regret giving their time to try and always cherishthat experience. Nearly everyone decides to climb again.

What sets The Source apart from other gyms or even climbing facilities (i.e. what makes you special)?Relationships. We are the newest and cleanest facility inthe area, the first to offer autobelays, and climbers knowus for the best route-setting. Still, what people commenton the most is our friendly staff and members.

What do you love about going to work every day?Teaching. I still love teaching classes from beginner toadvanced, and seeing those people feeling empowered.Also, I have great co-workers.

What the best success story you’ve seen at The Source?So many... but recently we had a group of blind climbersat the Source. One in particular was much older,completely blind with very limited hearing. I wasn't certainhe even realized what the group was here to do. Still, wegot him into a harness and placed his hands on the first twoholds. He climbed only 6 feet up the wall, and thenstruggled to stay balanced when he fell back into theharness. I carefully lowered him back to the ground, notsure if he could be enjoying this experience. But the firstthing he said, and the only two words I heard him speak allday, was "good stuff." He quickly reached back to the wall,ready to climb again...

CCBA Member Spotlight

Sooooo. . . how are those New Year’s resolutions coming? If you’ve made a few trips to the gym and arebeginning to wonder what you were thinking, we’ve got just what you need. Rock climbing! (SERIOIUSLY,try it once and you’ll be hooked). The Source Climbing Center, one of our member benefits partners,generously offers our members Climb 201 at half price! I sat down with owner Michael Larry to get thescoop on this member benefit.


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CCBA CLEs: They just make Cents!We know you have options when choosing a CLE.

Here’s why you should take your CLEs from the Clark County Bar Association.

NO ONE FEEDS YOU LIKE WE DO!You know the feeling... you’re trying to stay awake during that afternoon CLE just when your bloodsugar tanks. We offer delicious appetizers and coffee service at each Nuts and Bolts CLE. So stayingawake is not only a breeze... but tasty, too.

COST EFFECTIVEStarting at only $25 per credit hour*, our CLEs offer more value for your money than any other CLEaround *$25/credit: Nuts & Bolts; $35/credit: General CLEs (for CCBA members)

NETWORK WITH LOCAL ATTORNEYSOnly CCBA CLEs give you the benefit of rubbing shoulders with attorneys who work right around thecorner. Our bar association is known for its sense of community. Come see why we are the friendliestcounty bar in the Northwest.

CONVENIENTLY LOCATEDOur CLEs are held in the heart of downtown Vancouver—just a stone’s-throw from the court house.With no traffic headaches or parking problems, our attorneys can get in, get out, and get back to work.

LEARN FROM CLARK COUNTY JUDGESWe plan multiple CLEs throughout the year that include advice and perspectives from our very ownClark County Judges. Learn what they love (and what drives them nuts) so you can be at the top ofyour game when you find yourself in their courtroom. THERE’S SOMETHING FOR EVERYONEThey say ‘you can’t please all the people all the time... But we sure try. Our CLE topics cover a wide rangeof topics—from administrative law to litigation. Join our judges for our annual “View from the Bench”CLE, or grab some last minute Ethics credit in December. There’s something on our calendar for you.

Conference Roomavailable to rent

The CCBA’s office conference roomis available for meetings

and depositions at reasonable rates.

Call Lisa at: 695-5975

Linda E. FrischmeyerATTORNEY

Availablefor Consults

Washington& OregonLicensed

• Wage payment • Independent contractors• Confidentiality• Nonprofits• Non-compete

• Performance • Challenging behaviors• Leave laws • Disability accommodation• Drug testing

Respectful. Clear. Helpful.

[email protected]

805 Broadway, Ste. 1000 • Vancouver, WA 98660

Over 25 Years Assisting to Achieve Employment Goals

Tell me a little about The Source’s history and how it came to be. The Source Climbing Center is the beginning of dreamsrealized for longtime friends ,Guruhans ‘Hanz’ Kroesenand myself. We first met in 2002 and grew as friends whileworking at the Portland Rock Gym. The idea ofVancouver’s own climbing center began in 2007 over apint of beer. After finding local interest and investmenthere in Vancouver, the search for the right location began.Construction began on the new facility in May 2011 andthe new Source Climbing Center opened its doors onNovember 11, 2011.

What’s your favorite thing about climbing?At first, it was the community. Climbing is great exercise;but more importantly, it builds great relationships. Later, Icame to love the movement. There is a flow, and it cantruly feel like a dance. More recently, I've come to mostadmire the commitment and responsibility it requires.Culture often encourages us to ignore or avoid risk.Climbing forces you to face risk and make your owndecisions. In the middle of the climb, you get to be theonly person making those decisions... It is incrediblyempowering.

What would you say to someone who has never climbed before? Try it. Even those people that do not climb again, theynever regret giving their time to try and always cherishthat experience. Nearly everyone decides to climb again.

What sets The Source apart from other gyms or even climbing facilities (i.e. what makes you special)?Relationships. We are the newest and cleanest facility inthe area, the first to offer autobelays, and climbers knowus for the best route-setting. Still, what people commenton the most is our friendly staff and members.

What do you love about going to work every day?Teaching. I still love teaching classes from beginner toadvanced, and seeing those people feeling empowered.Also, I have great co-workers.

What the best success story you’ve seen at The Source?So many... but recently we had a group of blind climbersat the Source. One in particular was much older,completely blind with very limited hearing. I wasn't certainhe even realized what the group was here to do. Still, wegot him into a harness and placed his hands on the first twoholds. He climbed only 6 feet up the wall, and thenstruggled to stay balanced when he fell back into theharness. I carefully lowered him back to the ground, notsure if he could be enjoying this experience. But the firstthing he said, and the only two words I heard him speak allday, was "good stuff." He quickly reached back to the wall,ready to climb again...

CCBA Member Spotlight

Sooooo. . . how are those New Year’s resolutions coming? If you’ve made a few trips to the gym and arebeginning to wonder what you were thinking, we’ve got just what you need. Rock climbing! (SERIOIUSLY,try it once and you’ll be hooked). The Source Climbing Center, one of our member benefits partners,generously offers our members Climb 201 at half price! I sat down with owner Michael Larry to get thescoop on this member benefit.


�%��$��?��1��"N��&��!��%K � �O

�� #�C�� .��+�B �� * ��%�

• ,�� %��&�� • "� �� * ��%�" �� 2�7��%�• "��%�/�4�� • '� ��%�� B��#��

��&��' (�� B��* ��%��%�� 7��0��&�� &��6�� /(( �� 2�7=*�� 2��( �� '� ��&��* ��%��

The George and Donald Simpson Inns of Court is back insession after the holiday break. January’s meeting was a lot funand garnered a large turnout for Judge Johnson’s and JudgeGregerson’s team presentation.

The next meeting will be February 19, 2014 with Judge Nichols’and Judge Langsdorf’s team presenting in line with this year’stheme “Great Cases in History.”

The meetings are at The Quay, located at 100 Columbia Street,Vancouver, WA. They always occur every third Wednesday ofthe month from 5:00 p.m. to 6:30 p.m.

You still may join the Inns in 2014! The meetings will continuethrough the month of May so there is still time to get involved.The Inns offers a wonderful opportunity for the legal communityto get connected while promoting professionalism and ethics.

If you are interested in joining, please contact me [email protected]. For more information aboutthe Inn of Court generally, please visit www.innsofcourt.org.

Inns of CourtELIZABETH CHRISTYInns of Court President

WANTED!!!The Hearsay is in search of new and exciting material and new and exciting contributors!

Please join us on the third Wednesday of every month at noon at the CCBA office! If you have a great idea to share please don't hesitate to contact us.

Call Lisa in the CCBA office at 695-5975

We’ve gotholes in our Lawyer

Referral Service.....and you can fill them!

Call Lisa Darco today! 360.695.5975

Each month the LAWYER REFERRAL SERVICE refers hundreds of po-tential clients to our attorneys. But in some of our referral areas, our at-torneys are ...well ...sparse. This is a great opportunity for YOU! If you practice in any of these areas, consider joining the LRS today!

- ADMINISTRATIVE LAW- CONSUMER- DEBTOR/CREDITOR- LABOR AND EMPLOYMENT

MEMBERSHIP IS ONLY $150 PER YEAR. Plus, we are expanding our advertising efforts to include an active link on our brand new website. . . COMING SOON!

Hear what some of our LRS members have to say:

“The lawyer referral service is a great resource for the public and a great source of work for local attorneys. Not every case is a good case but that is the same no matter where the referral comes from. The fee for joining is reasonable and the way I look at it if you get one good case from the service it will probably more than pay your fee for the next 5 years. I have had several good cases from the services during the 6 years I have been a member.”

~Jane Clark

“The LRS has helped me grow my family law practice, andhas increased the number of family law consultations I do. It is a nice way to attract potential new clients.”

~Elizabeth Arwood


ALFRED “ART” BENNETTHearsay Special Correspondent

Polygraph n. a lie detector device, from Greek for “many” (poly)“graph” (message) since numerous physiological responses aretested when questions are asked.

POLYGRAPH - An instrument used to measure physiologicalresponses in humans when they are questioned in order todetermine if their answers are truthful.

Also known as a "lie detector," the polygraph has a controversialhistory in U.S. law. First developed in the late nineteenthcentury, its modern incarnation is an electromechanical devicethat is attached to a subject's body during an interview. Thediscipline of polygraphy is based on the theory that by recordinginvoluntary physiological changes in the subject, the polygraphyields data that can be interpreted to determine whether thesubject is telling the truth. Supporters of the scientific validity ofthe polygraph claim that results are approximately 90 percentaccurate. For much of the twentieth century, however,polygraph evidence was inadmissible in criminal cases ongrounds of unreliability. Polygraph evidence was admissible incivil cases, however, and it was also used widely in lawenforcement, government, and industry.

Polygraphy uses a variety of formats. Until the 1950s the formatwas the relevant/irrelevant (R/I) test; it rested on the nowdiscredited belief that a subject produces a specific identifiablephysiological response when lying. The R/I test has beenreplaced by the control question (CQ) format, the only formatroutinely used in forensic tests. Typically, a trained examiner fitsa subject with sensors to measure respiration, heart rate andblood pressure, and perspiration, and motion sensor, which thepolygraph records using pens on graph paper. The examiner asksa series of questions, including control questions that aredesigned to provoke anxiety and denial. Later, another examinercompares these answers with answers pertaining to the matter athand. This is known as numerical CQ testing. So-called globalCQ testing includes a more subjective component: oneexaminer scores the test while also factoring in the subject's

observable physical responses, such as movement, expression,and voice.

In U.S. courts, the use of the polygraph was first addressed in1923. In refusing to admit polygraph evidence in a murder case,the Court of Appeals for the District of Columbia created a legalstandard that would last for nearly 70 years (Frye v. UnitedStates, 54 App. D.C. 46, 293 F. 1013 [1923]). This standardcame to be known as the Frye rule, or general acceptance test.To be admissible in court, novel Scientific Evidence first musthave gained general acceptance in its scientific field.

The Frye rule applied broadly to all scientific evidence, includingpolygraph evidence. Other appellate courts followed the court'sstandard throughout most of the century, primarily becausepolygraphy never gained widespread acceptance amongscientists. Nonetheless, polygraph evidence was used in civillawsuits, and police agencies, businesses, and government officescontinued to use the polygraph regularly to provide evidence,screen job applicants, and investigate security risks.

Advances in polygraphy helped spur a judicial reevaluation, butmore important was the adoption of the Federal Rules ofEvidence in the 1970s. Rule 702 set an important new standardfor the admission of scientific evidence:

If scientific, technical, or other specialized knowledge will assistthe trier of fact to understand the evidence or to determine a factin issue, a witness qualified as an expert by knowledge, skill,experience, training, or education, may testify thereto in the formof an opinion or otherwise.

Over the next two decades, appellate courts authorized use ofpolygraph evidence in a few state courts, a trend followed by theU.S. Court of Appeals for the Eleventh Circuit and the militarycourts. Then, in 1993, in a case not specifically related to thepolygraph, the U.S. Supreme Court held that Rule 702 replacedthe Frye test (Daubert v. Merrell Dow Pharmaceuticals, Inc., 509

What You Always Wanted to Know About Lie Detector Tests,

But Were Afraid to Ask


Thirty Seventh Nuts and Bolts Lecture:

Estate Planning and Charitable Giving

Presented by Jill Sasser and Rafik Fouad

Wednesday, March 12, 2014, 3:00 PM – 5:00 PM Red Lion at the Quay

�

2&�� <�� !'�� <5�� =�� # ��<�� =�� # -�2&� �$��%��# ��)*�� &�� (��+��3 �(��(��

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U.S. 579, 113 S. Ct. 2786, 125 L. Ed. 2d 469). In essence, theCourt said that the standard of general scientific acceptance wasnot as important as whether expert testimony can assist jurors.Soon thereafter, several federal courts reconsidered their long-standing ban on polygraph evidence and determined that theynow had the discretion to permit its introduction at trial.

Congress also reexamined the use of the polygraph in industry.In 1988, lawmakers responded to civil liberty concerns aboutthe abuse of polygraph testing in private industry by passing theEmployee Polygraph Protection Act (29 U.S.C.A. §§ 2001 etseq.). The law bars preemployment testing in banking, retail, andother private industries and also makes it illegal for employers tofire, discriminate against, or discipline employees who refuse tosubmit to polygraph tests. The act exempts governmentemployers, private industry when an employee is underinvestigation for economic injury suffered by the employer, andall security services and industries that manufacture, distribute,or dispense controlled substances.

In military trials, the situation was different. In United States v.Scheffer, 523 U.S. 303, 118 S. Ct. 1261, 140 L. Ed. 2d 413(1998), the Supreme Court addressed the claim of airmanEdward G. Scheffer that prohibiting the introduction ofpolygraph evidence during his Court-Martial (military criminaltrial) violated his constitutional rights. Under Military Rule ofEvidence 707, polygraph evidence is not allowed in court-martial proceedings. So, although Scheffer, who was accused of,among other things, taking illegal drugs, passed a polygraph, itwas inadmissible as evidence. A federal court of appeals reversedthe court-martial, stating that excluding the polygraph evidencedid, in fact, violate Scheffer's right to present a defense asguaranteed by the Sixth Amendment. Upon review, theSupreme Court upheld Military Rule of Evidence 707. In theopinion of the Court, "State and federal governmentsunquestionably have a legitimate interest in ensuring thatreliable evidence is presented to the trier of fact in a criminaltrial." However, "there is simply no consensus that polygraphevidence is reliable."

(-Much of the above information from West’s Encyclopedia ofAmerican Law, 2nd Ed.)

WASHINGTON LAWIn Washington, administering polygraphs to job applicants isillegal, and actually a misdemeanor. RCW 49.44.120 et seq. Theexception to this rule is that polys are authorized for lawenforcement agencies applicants and agencies that handlecontrolled substances, plus federal and military. Supra

Polys may also be administered to sexual psychopaths as part oftheir evaluation and treatment, plus plethysmographs, a distantelectronic cousin of the polygraph, may be used. RCW 71.09.096

By statute, a prosecutor may consider the results of a polygraphexam when making a charging decision. RCW 9.94A.411

STEVE NORTON, PRIVATE POLYGRAPH OPERATORSteve Norton, the only local full-time private polygraph operator

in Clark County, is a retired Vancouver police investigator whohas administered in his career more than 7,000 polygraph exams.

Steve says criminal defense attorneys often seek his services tosee if a client is lying, or to get control of a client (by showinghe’s lying about the crime) or to present the results to theprosecutor.

CAN THE POLYGRAPH EXAM BE BEATEN?Steve agrees that it can if a subject has plenty of access to theinstrument and lots of time and mentoring on how to deceivethe test. He says such instances are rare and can usually bedetected by a skillful operator. He rates in general the polygraphresults as over 90 percent accurate depending on the test format.

CHUCK CORRIGAN

Administering the polygraph exam. Note that the equipment is basically a PC wired to thesubject. Big black polygraph machines are no longer used.

Let your CCBA membership pay for itself! . . .

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We will need 12-15 raters per round. The goal is to sign up asmany attorneys as possible, so raters will not have to judge mul-tiple rounds. Raters should come to the jury assembly roomabout 15-20 minutes before the round starts, to receive theirassignments, last minute orientation, and food and drink.

Attorneys interested in participating as raters or judges in thecompetition should contact Jill Sasser([email protected]), who has agreed to serve as volun-

teer coordinator this year. Please provide contact informationand the round or rounds you are willing to rate.

3. Next Meeting: The next bench/bar meeting will be held onJanuary 14, 2104 at 12:00 p.m. in Judge Nichols’ jury delibera-tion room.

Respectfully submitted,John Fairgrieve

Bench Bar Meeting, Wednesday Jan 22, 2014Noon - 1:00 pm in Judge Zimmerman's Court Room, Second Floor

Agenda:• Warrants - Mark Muenster• Booking levels for release on warrants - Chief Bishop• City of Vancouver's DWS lll Diversion Program - Kevin McClure

District Court Bench Bar


Thirty Eighth Nuts and Bolts Lecture:

Employment Law Basics for the Business Lawyer

Presented by Emily Sheldrick

Wednesday, April 16, 2014, 3:00 PM – 5:00 PM Red Lion at the Quay

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Special thanksto our Barristers’ Ball sponsors!

We are looking forward to a fun and exciting Barristers’ Ball onMarch 1st, at 5:30 pm, at the Heathman Lodge.

All proceeds from the event will benefit the Clark County Volunteer Lawyers Program. As a non-profit organization, events like this depend upon sponsors like these.

The CCBA wishes to express our thanks to our sponsors for making this evening possible.

Sponsorship opportunities are still available!

Call the CCBA office at (360) 695-5975to sponsor a casino table or make a donation.

ATTORNEYBOOKKEEPINGSERVICES, Inc.


The meeting began shortly after noon. Persons present wereJudge Robert Lewis, Judge John Nichols, Ann Christian, JoleneSell, Emily Sheldrick, Karen Campbell and John Fairgrieve.

OLD BUSINESS:1. Competency Evaluations and Western State Hospital

(WSH): Judge Lewis told the committee that WSH is not meet-ing its target of completing 50% of competency evaluations incriminal cases within its timelines, and that there is a need tofind out if there are any local psychologists interested in con-ducting competency evaluations for the state authorizedcompensation ($800 per evaluation conducted). Ann Christiantold the committee that she would reach out to local psycholo-gists, gather information, and report back to the committee.

2. Publishing Jury Selection Procedures: Judges Nichols andLewis told the committee that they had each been interviewed byClark College Paralegal Program students and that the processseems to be moving forward. Emily Sheldrick told the committeethat the goal is to finish the project by the end of the year.

3. Restoration of the Right to Bear Arms- Criminal or CivilProceeding: The Judges told the committee that a local rule out-lining how petitions to restore firearms rights will be handled inour county is in the process of being drafted.

4. Jail Access. Ann Christian told the committee that she hasrecently spoken to a number of criminal defense attorneys andthat attorney access to criminal defendants in the jail does notseem to be a problem at this time.

5. Readiness Docket: Judge Lewis reported that due to the sizeof the docket for November 27 it will be split into four dockets,two handling readiness hearings and two dealing with changes ofplea. He told the committee that the next few weeks are better,

but that one of the readiness dockets for January 2014 alreadyhas 107 items on it.

NEW BUSINESS1. Indigent Criminal Defense Contracts: Ann Christian toldthe committee that she is providing the superior court judgeswith a calendar that has the names of the indigent defense attor-ney contractors on it and the number of points each hasremaining on his or her contract. Ann further stated that nextyear Vancouver Defenders has a slightly larger contract but therewere no other major changes in the criminal defense contractsfor next year.

2. 2014 Mock Trial: Judge Lewis told the committee that thisyear’s Clark County Mock Trial competition will occur the sec-ond week in February. He stated that he would be meeting soonwith volunteers to organize the competition.

Judge Lewis subsequently provided the following information inan e-mail on January 8:

The competition will be held on Wednesday, February 12 andThursday, February 13. There will be six rounds of competition,with 4 trials each round. The round start times will be:

Wednesday, 2/12 Thursday, 2/131 - 12:30-3:00 4 - 12:30-3:002 - 3:00-5:30 5 - 3:00-5:303 - 5:30-8:00pm 6 - 5:30-8:00pm

There will be no championship round. Results will beannounced Thursday night at around 8:15pm. (All times areapproximate, depending on conditions -- raters should be pre-pared to be flexible).

SUPERIOR COURT BENCH/BAR COMMITTEE

MEETING MINUTESDECEMBER 12, 2013

JOHN FAIRGRIEVEHearsay Special Correspondent

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Family Law Section December ReportMEREDITH MCKELL GRAFFSecretary/Editor

The December Family Law Section had a visit from Santa,otherwise known as Judge Gonzales, and his helper, “Gigi”Darfluer, at the Hilton Hotel on December 12, 2013. Nospeaker or CLE credits were offered for this meeting.

Among the notable gifts distributed by “Santa,” was abook on dinosaurs for new attorney, Faye BreitReed, so that shecould readily identify the different attorneys she would beencountering in her family law practice; a “glow in the dark”rubber snake for Vern McCray, so that he could recognize thereal “snakes in the grass” that he deals with; and a tropical islandcalendar for Alison Greene, because she travels so much towarm, tropical places. Judge Rulli received a penalty flag tothrow down when long-winded attorneys don’t take the hint andstop their oral arguments! Guardian ad Litem registrant, PennyVian, was given an undercover spy kit to assist her with her GALinvestigations. Marie Tilden received a magic wand to make herdifficult clients disappear! Laura Mancuso received a scentedcandle for her office to improve the scents of three maleattorneys that she works with. Scott Horenstein was given some

new dental veneers with lovely bling on one tooth to spruce uphis appearance. Santa surprised Terry Lee with T Rex bubblesso that he can appear less intimidating at court if he blows thebubbles while making his arguments! There were many moredistributed and we had a great turn out!

The next meeting will be January 9, 2014 at the HiltonHotel, which has been working out great for the section. TheHilton has more space than our previous locations, and the foodis always great. An email will be going out to all Family Lawsection members in the next couple of weeks announcing thetopic and speaker for January’s meeting. If you aren’t on theFamily Law Section “Evite” list, contact Matthew Blum,President, at [email protected] or 360-690-0822 to beadded to the list. There are six more meetings before we breakfor the summer, and the opportunity to get 6 hours of CLEcredit at a very reasonable price, along with a great lunch. Wehope to see you at our next meeting!

Young Lawyers’ SectionELIZABETH ARWOODYLS President

Our annual holiday party, at Shannahan's, was well-attended andtook place on Thursday December 5th and included a fun whiteelephant gift exchange.

The Young Lawyer Section Board met on Wednesday January 8,2014 to discuss spring events. Present at the meeting wasElizabeth Arwood, President; Nathan Petersen, Vice President;Travis O'Neil, Treasurer; Katie Sinclair, Secretary; Social Chair,Jeff Ott; and Immediate Past President, Christie Martin. Here iswhat we are working on:

1) In lieu of January and February Happy Hour, we are workingon scheduling group seats for a Portland Trail Blazers basketballgame. Date and details will follow by email to YLS members. Ifyou are not a YLS member, or do not get YLS emails, but areinterested in attending, please [email protected].

2) We are also looking at the possibility scheduling a groupevent for a Portland Winter Hawks sometime in January orFebruary and a Portland Timbers game in the Fall.

3) YLS CLE series will resume in the Spring. We are consideringchanging the time from the lunch to 4 or 5 p.m. and combing theCLEs with our monthly happy hour. Specific details will follow.

4) We are working on sponsoring a First Responder Will Clinic.Christie Martin is communicating with the State Bar to arrangeattendance at a training. Lawyers will volunteer at the clinic toprovide basic estate planning documents to First Responders.

YLS events are not just for new bar members. We welcome andappreciate attendance from more experienced attorneys as well.We look forward to seeing you at some of our upcoming SpringEvents!

If you have seen Grant Gehrmannaround the Courthouse, you wouldlook around for movie cameras. Heis pretty distinguished and looks likehe could be a movie star. He is,however, a very committed personalinjury attorney, and at least one ofhis stories could be a made-for-TVmovie.

Here is his story on how a case that was rejected by a largeregional firm ended with Grant getting a $2,500,000.00 recoveryfor his client:

When I receive a call from a potential client that has been “fired”by another law firm my first instinct is to be somewhat careful inmy evaluation of the case. I generally assume that the case wascarefully and properly evaluated, particularly when done by ahigh-profile regional injury law firm.

This was my mindset when I got a call from Linda, who had losther husband in a tragic accident at a commercial truck loadingyard near Tacoma. Linda’s husband had been run over andkilled by a co-worker driving a loading truck. The regional lawfirm had sent Linda a letter withdrawing from the case becauseLinda had no legal claims other than a worker’s compensationclaim. Linda did not understand the details of how her husbandhad been killed. She was seeking another attorney to help her atleast understand the details of how John had been killed andwhether she could do anything to make sure it did not happen toanyone else at that facility in the future.

I agreed to help Linda and began my investigation by obtainingthe police reports and all DLI investigation reports about thefatal accidents. The police reports and DLI investigation reportswere clearly important documents, but they were not in the filesent down to my office from the Seattle firm.

After obtaining the DLI reports myself, I saw that these reportsincluded a detailed analysis alleging non-compliance with WACjobsite requirements. After reading these reports, along with thepolice reports, it became clear to me that the other law firmmade a critical mistake in not fully evaluating and advising theclient on a premises liability claim. I was very relieved that wewere still within the statute of limitations and that Linda haddecided to call me for a second opinion.

What we can all glean from the first part of my story are threekey things:

1) Obtain and review all key evidence before closing out a file; 2) Do not tell a client that she does not have a claim unless you

REALLY KNOW the client does not have a claim; and 3) If you are the “second opinion” attorney, don’t assume that

the first law office was correct in its legal analysis—give thecase a fresh look.

Facts of the CaseA large regional grocery store owns and operates a distributioncenter in Puyallup. The “distribution center” (DC) is a hugefacility that has trucks from all over the northwest coming in,unloading shipped product to the DC, and also loading trucks fordelivery to grocery stores in the Pacific Northwest and Alaska.

Linda’s husband, John, was an employee (semi-truck driver) of acompany in contract with the grocery store to transportmerchandise from the store’s distribution center to the store. Inother words, John’s company provided drivers, semi-trucks, yardtrucks, and trailers for the transport of the grocery store’smerchandise out of the distribution center.

The trailers for the semi-trucks were moved to and from docksfor loading. The trailers were moved around the distributioncenter by yard trucks, which are like big forklifts and are speciallydesigned to attach to trailers to move them. The yard truckswere equipped with a knob on the steering wheel, which allowsthem to turn quickly.

The grocery store’s loading yard had a high volume of traffic,both vehicle and pedestrian. Despite the pedestrian traffic, thegrocery store had not designated a walkway or crosswalk forpedestrians to get from the parking area to the building to gettheir agendas and/or go to the break room. In addition to thelack of a designated walking area for pedestrians, the ground alsohad significantly low lighting for a work area.

On the day of the accident, John had delivered a load of cargo tothe distribution center. While John waited for his cargo to beunloaded, he went to the provided break room at thedistribution center.

John had parked in the designated parking area for truckers. Toget from the parking area to the break room, all drivers had towalk about 75 yards across the main working area for hostlers,who were busy moving trailers to the warehouse docks forloading and unloading of grocery products. The grocery store’strucking expert admitted that this area is a “hub of activity” forthe distribution center.

Premises LiabilityClark County Attorney Takes a Second Look

HEARSAY - JANUARY 2014 27 10 CLARK COUNTY BAR ASSOCIATION


Thirty Sixth Nuts and Bolts Lecture:

The Nuts & Bolts of Handling a Sexual Harassment Case

Presented by Gideon Caron

Wednesday, February 12, 2014, 3:00 PM – 5:00 PM Red Lion at the Quay

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Since the grocery store did not provide any designated walkwayor crosswalk for truckers to use to get from the designated truckparking area to the office, line drivers like John had to walkthrough this hub of activity, dodging goats and truck traffic. Thiswould be not unlike the video game “Frogger”.

The work area between the parking area and the office was darkand unlighted. A co-worker driving a loading truck had justparked a trailer in the dock. After pulling out from the dock, thedriver made a sudden U-turn to pick up a dolly. The driver failedto see John and ran him over with the loader, severely injuringJohn. John died in the hospital five days later as a result of hisinjuries.

Linda, John’s widow, was by John’s side during the five days hewas in the hospital. She watched her husband go throughtremendous amounts of pain, in and out of surgery, andeventually witnessed John’s death.

While John was in the hospital, Linda contacted a big regionallaw firm. She had seen their advertisement on TV and decidedto contact them to discuss her husband being run over at work.The firm met with Linda and agreed to take a look into theincident. The firm even sent one of their employees to thehospital to take photographs of John, Linda and their family inJohn’s ICU room prior to John’s death.

A Washington Department of Labor and Industriesinvestigation was launched after the accident. That investigationfound the lighting where John was struck to be well below thelighting levels required by the Washington Administrative Code.The DLI cited the grocery store for this unsafe work area, notingthat the grocery store was “the creating and controllingemployer” for purposes of yard safety.

The incident was also investigated by the Puyallup PoliceDepartment. The reporting Detective stated in his police reportthat there was “Little ambient lighting. The location of thecollision was fairly dark.” The Detective further reported thatthe loader drivers drove quickly while moving the trailersaround in the yard. Detective Lewis found that the grocery storehad no policy regarding the use of designated pedestrian walkingpaths and that the truck drivers were not required to wearreflective safety vests when walking in the yard.

The conclusions I drew from these materials was that thegrocery store was responsible for and had control over outdoorlighting and pavement markings at the Distribution Center.Also, it was clearly known to the grocery store that truck driverswalk through the trucking yard to get from the parking area tothe office given the location of the parking area and the office.

As the litigation commenced, one of the grocery store’s securityguards at the Puyallup distribution center testified that he hadbeen concerned about being seen when walking in the yard atnight because it got very dark in the yard. About two monthsbefore the incident, the guard talked with his supervisor, a lossprevention manager, about equipping security personnel with

safety vests while walking around the yard. Simply put,plaintiffs had evidence to support the argument that the grocerystore protected its own employees with safety vests, but did notwarn outside drivers of the illegally dark work area or requirethem to wear safety vests in the yard.

Plaintiff’s Theories of Liability1) Failure to have adequate/proper lighting in the yard (i.e., the

available artificial lighting in the yard fell well-belowapplicable regulations);

2) Failure to have a designated pedestrian walkway for driverswho must walk through the hub of activity between the truckparking area and the office;

3) Failure to require safety vests for all pedestrians in the yard;4) Breach of the common law duty of maintaining its premises in

a reasonably safe condition;5) Breach of WISHA regulations;6) Placing a computer screen in the goat which creates a blind

spot to the right , (i.e., where the goat struck John)

The grocery store filed its motion for Summary Judgmentagainst the widow on the following grounds: 1) No breach ofduty as Landowner; 2) No affirmative active of negligence; and3) No breach of duty to John, since the grocery store had hiredJohn’s company as an independent contractor.

Plaintiff argued that since the grocery store owned the land, hadfull control of the distribution center, and gave specificinstruction to the contracted drivers. The grocery store wasresponsible for maintaining the distribution center, and makingit safe for all business invitees.

Employer Liability for Independent ContractorsIn general, an employer that contracts with an independentcontractor is not liable for injuries sustained by the independentcontractor’s employees. However, an employer does haveliability for injuries to an independent contractor’s employeeswhen the employer retains control over some part of theindependent contractor’s work. Afoa v. Port of Seattle, 160 Wn.App. 234, 239, 247 P.3d 482, 485 (2011).

The Supreme Court addressed the issue of a property owner’sliability to employees of subcontractors in Kamla v. Space NeedleCorp., 147 Wn.2d 114, 52 P.3d 472 (2002). Kamla involved aclaim by an employee of a pyrotechnics company that wasinstalling a fireworks display at the Space Needle. Thepyrotechnic worker’s safety line dragged across an open elevatorshaft at the 200-foot level of the Space Needle. While he wasworking, the elevator traveled down the shaft, snagged his safetyline, and dragged him through the elevator shaft. The SpaceNeedle argued that the test for control should be actual controlrather than retention of the right to control. The Supreme Courtconcluded as follows:

We cannot accept Space Needle’s implicit invitation to abandonthe “retained control” inquiry. When we distill the principlesevident in our case law, the proper inquiry becomes whetherthere is a retention of the right to direct the manner in which the


December 4, 2013

Board members in attendance: J. Clark (presiding); A. Dunn(preparing minutes); J. Sasser; J. Fairgrieve, G. Caron; and L.Mancuso. LeeAnn Larson attending. Staff in attendance: L. Darco.

1. J.Clark called the meeting to order at 12:08 PM.

2. Approval of minutes from November 6, 2013. On motionduly made and seconded, and passed, minutes are APPROVED.

3. Treasurer’s Report. Tabled for discussion as JD isunavailable today in court.

4. Old Business.

a. Mentorship Program. Fairgrieve explained that he is workingwith a few interested mentees. Discussion of a possible monthlylunch.

b. Barrister’s Ball. Darco met with WildBill’s to set up casinonight options, dealers, etc. Clark: excited about developing anew theme that will hopefully resonate with members. Dunn:interested in keeping costs down as requested by members ofYLS. Darco is evaluating costs for Heathman. Total cost isestimated to be $13,149 if 150 people attend. The cost is perperson. Actual costs are estimated to be $85/person. Subsidiesby CCBA and sponsorships are estimated to allow ticket pricesat $35/person with game revenue to go to the charity. Mustobtain a liquor license to have wine at the auction. Discussionof possibly selling drinks and paying corkage fee to the venue.No host bar and wine/beer is not included in basic cost ofattending the event. The CCBA is expected to contribute$8,500, which is budgeted. Maximum capacity is 150 people atthis venue.

i. Clark Motion: Motion to charge $35/person (forMember and guest) and $55/person (non-Members). Onmotion duly made and seconded, and passed, motion isAPPROVED.

c. Bylaws. Discussion by the Board of issues to improve theBylaws. Mancuso drafted extensive changes by variousmembers and consolidated those issues in a single draft.

d. Policies and Procedures Manual. Darco and Dunn haveobtained draft language from the KCBA and plan to use that

language as a template for the CCBA to adapt rules andprocedures for its own use.

e. Attorney Service Day. Sasser is targeting a May/June serviceproject.

f. Holiday Ship Event. 86 confirmed attendees with a waitlist.The CCBA hopes to accommodate all members that want toattend to the best of its ability. The response and interest in thisevent was a welcome but unexpected surprise. Apologies toanyone on the waitlist for the uncertainty.

g. Directory. The CCBA conducted a SurveyMonkey survey onwhether to include all local attorneys or merely CCBAmembers. 124 people responded, a majority of the membership,responded. Survey said: 61% of responders vote to include alllocal attorneys in the CCBA database to be in the CCBADirectory. The Board agrees and will highlight CCBA members.

i. Sasser Motion: Motion to highlight CCBA members inbold or similar identifier and to omit practice areas for non-members. On motion duly made and seconded, andpassed, motion is APPROVED.

h. Website. Darco, Randy Grafton, and Dunn met to design thewebsite. The initial website should be available by the first of theyear. Caron will head a subcommittee to consider advertisingcosts.

i. Caron Motion: Motion to give members a 10% discount onadvertising off current non-member rates in Hearsay which aresubject to change without notice. Advertising rates will beseparate for Hearsay and the Website. On motion duly madeand seconded, and passed, motion is APPROVED.

i Supreme Court Social. They are coming and the CCBAwill further discuss logistics when a date is set.

j. New possible Awards. Discussion of a number of newcategories for awards.

5. There being no more business before the board, on motionduly made, seconded, and passed, the board meeting isADJOURNED, 1:23 PM.

CCBA Board Meeting MinutesARIN DUNNCCBA Vice President

work is performed, not simply whether there is an actual exerciseof control over the manner in which the work is performed.Kamla, 147 Wn.2d at 121.

The Supreme Court also analyzed in Kamla the issue of a jobsiteowner’s statutory duty to employees of subcontractors underRCW 49.17.060(2) to ensure compliance with WISHA safetyregulations. The Court stated the law regarding a jobsiteowner’s statutory duty to ensure compliance with safetyregulations as follows:

Although jobsite owners may have a similar degree of authorityto control jobsite work conditions, they do not necessarily havea similar degree of knowledge or expertise about WISHAcompliant work conditions. Jobsite owners can run the gamutfrom an owner/developer with the same degree of knowledgeabout WISHA compliant work conditions as that of a generalcontractor to a public corporation without any knowledge aboutWISHA regulations governing a specific trade. Because jobsiteowners may not have knowledge about the manner in which ajob should be performed or about WISHA compliant workconditions, it is unrealistic to conclude all jobsite ownersnecessarily control work conditions. Instead, some jobsiteowners may reasonably rely on the contractors they hire toensure WISHA compliance because those jobsite owners cannotpractically instruct contractors on how to complete the worksafely and properly.

If a jobsite owner does not retain control over the manner inwhich an independent contractor completes its work, the jobsiteowner does not have a duty under WISHA to “comply with therules, regulations, and orders promulgated under [chapter 49.17RCW].” RCW 49.17.060(2). Kamla, 147 Wn.2d at 124-125.

Thus, under Kamla, a jobsite owner that retains control orsupervisory authority over the manner in which an independentcontractor performs its work has a nondelegable duty to ensurecompliance with WISHA regulations under RCW 49.17.060(2).Afoa, 160 Wn. App. at 245, 247 P.3d at 489. Unlike the SpaceNeedle, which had no expertise in the type of work being done bythe subcontractor in Kamla (pyrotechnics), the regional grocerystore was a sophisticated jobsite owner with extensive experienceand expertise in the type of work being done by its contractor(moving trucks and cargo in a warehouse/distribution center).The facts show that the grocery store was “in the best position,both financially and structurally, to ensure WISHA complianceor provide safety equipment to workers . . . .” Kamla, 147 Wn.2dat 124.

The Supreme Court held in Kamla that the test for “control” is“whether there is retention of the right to direct the manner inwhich the work is performed.” Kamla, 147 Wn.2d at 121. Whethera right to control has been retained depends on the parties’ contract,the parties’ conduct, and other relevant factors. Phillips v. KaiserAluminum, 74 Wn. App. 741, 875 P.2d 1228 (1994).

Plaintiff argued that the evidence established as a matter of lawthat the grocery store exercised substantial control over how thecontractor personnel performed their work at the store’sdistribution center. The grocery store retained exclusive controlover the worksite, from controlling access onto the site to havingsole control of the layout of the site, pavement markings, andlighting at the site. The grocery store controlled the speed limitin the yard and required the contractor’s personnel to follow itssafety rules. The grocery store required computer screens in thecontractor’s yard trucks so that dock supervisors could monitoractivity in the yard, and dock supervisors/load planners directedthe contractor’s employees as to which trailers to move andwhere to move them on a daily basis.

Employer’s WISHA Duties to Independent ContractorsPlaintiff argued that the grocery store had a duty to employees ofits contractor to ensure compliance with WISHA regulationsbecause it retained (and exercised) control over how thecontractor’s employees performed their work. Plaintiff alsoargued that the undisputed facts established that the storeviolated its duty to ensure compliance with WISHA workplacesafety regulations requiring adequate lighting.

When a jobsite owner retains authority to control anindependent contractor’s work on a jobsite, the jobsite ownerhas the same responsibility to ensure compliance with WISHAsafety regulations that a general contractor has with respect toemployees of subcontractors. See, e.g., Kinney v. Space NeedleCorp., 121 Wn. App. 242, 248-249, 85 P.3d 918 (2004). UnderRCW 49.17.060(2), a general contractor or a jobsite owner thatretains control over the work of an independent contractor has anondelegable duty to employees of the independent contractorto ensure compliance with all WISHA regulations. See, e.g.,Morris v. Vaagen Bros. Lumber, Inc., 130 Wn. App. 243, 253, 125P.3d 141 (2005). Here, the grocery store had a nondelegableduty to ensure compliance with WISHA safety regulationsbecause of its retention and exercise of control over thecontractor’s work and worksite and its experience andknowledge operating distribution centers.

Summary Judgment Defeated – the parties settleThe trial court judge heard the grocery store’ summaryjudgment motion and denied it. This put the case on a trial trackand plaintiff’s experts were ready to testify. After extensivediscovery and the denial of summary judgment, the partiesagreed to mediate the case. After an intense mediation, the casewas resolved for $2.5M in total damages.

This was one of the most satisfying cases of my career. It is reallyenjoyable to successfully pursue a case that was previouslyrejected by another firm. Even more important, we were able tohelp a deserving widow obtain a monetary recovery on well-grounded legal principles.

You may know that at the end of 2013 LoriVolkman retired from the Clark CountyProsecutor’s Office after 13 years of service.She has opened her own strategic communi-cations business and continues to advocatefor the Military Spouse, especially thosewith their J.D. She is also the Communica-tions Director for the organization Military

Spouse JD Network at www.msjdn.org. Looking forward tohearing more from Lori in her new world!

Say it isn’t so, Judge JohnNichols! Well repeated, and con-firmed rumor, is that JudgeNichols will retire at the end of2014 to spend more time withhis lovely wife, who is also retir-ing from the world of Real Estate,and to spend more time with kids

and grandkids. Life is too short! We will all miss his wry brand ofhumor and the unending patience he has honed over the last cou-ple of decades. Time to set for trial those lingering cases youhave. With this much lead time the list for his replacement couldreach double digits!

So if you practice in the Dead Zone (those of you with Estate,Trust, Guardianship, VAPO practices), you may know vibrantand zany Victoria Blachly, who hails from Portland, but is just ashome on this side of the river. Victoria is a hard-headed litigatorwith an eye for fun. Having attended the Simon Benson Awardsdinner in Portland several months ago, she was delighted to beintroduced to the keynote speaker that evening, AndersonCooper. Cooper captivated his audience with stories of travel-

ing around the world covering thebiggest stories of the decade. Thebest part was the photography ses-sion. Who wouldn’t want a hugfrom Anderson Cooper?

And a little something to warmthe cockles of your heart this Jan-uary day, is the story of Evan Hulland the notice the Columbian tookto his goal to end homelessness one person at a time. Evan is aboard vice president of Open House Ministries, an organizationthat provides transitional housing and job training for homelessfamilies. Evan has personally assisted several families, paying his

own funds to help keep them in their homes.Evan helped one family where the motheradmitted in Family Treatment Court thatshe would likely lose her residence, whichwould also mean losing her chance to regaincustody of her children. Evan heard thestory and provided funds to keep her home,and one of her daughters was allowed toreturn and live with her. In return, the fam-ily has provided volunteer hours at Open

House Ministries and is thankful that someone gave them achance. If you are also interested in helping, give Evan a shoutout next time you see him in the Courthouse.

Your esteemed colleague Raisa Judicata can’t be everywhere. If youhave a tidbit of news you would like the world to know, send a noteto [email protected]. Raisa usually checks in the first Mon-day of every month. Remember, it is your ethical duty to supportyour member organization with juicy gossip and goings on.

Victoria Blachly and Anderson Cooper – who would think he could get silly?

Evan Hull is a hero for thehomeless


CCBA CLE CalendarRegister now for any of our upcoming CLEs.

N&B The Nuts & Bolts of Handling aSexual Harassment CaseGideon Caron

Brown Bag CLE – Dog Bite & Animal LawDavid Nordeen & Denise Lukins

CLE – Trust AccountsLainie Hammond

N&B Estate Planning and CharitableGiving/Financial PlanningJill Sasser &Rafik Fouad, FinancialAdvisor

GAL Title 11 Certification

N&B Employment Law Basics for theBusiness LawyerEmily Sheldrick

N&B Immigration Law and its Impact inCriminal, Family and Employment LawCasesGretel Ness, Chris Anders & Tilman Hasche

N&B –Working with Medical ExpertsJane Clark & David Nordeen

N&B CLEs: $50 for Members$70 for Non – Members

General CLEs: $35/Hour for Members$45/Hour for Non Members

What CCBAMembers AreDoing About TownRAISA JUDICATAGuest Gossip Columnist

DOUBLE HEARSAY

Lori Volkman has her eyeon the Capitol!

Judge John Nichols will be missed!


This month, the CCBA introduces Aaron Wakamatsu: food blog-ger, YouTube entertainer, and contributing author. On the coverphoto, Aaron tackles a 6-pound cinnamon roll at Stuffy’s II inLongview, WA.

For the past two years, Hearsay has uncovered and highlightedClark County Bar Association members involved in interestingnon-lawyer activities. Past features included Allen Harvey (volun-teering as a ski patrol rescuer), Jonathan Gill (donninga clown costume to raise money for ShrinersHospital), Terry Lee (organizing summerconcerts at Esther Short Park), and SteveBusick (driving the same VolkswagenBeetle for over 30 years).

Now, there’s a food blogger in thecommunity who eats almost anything.Spicy foods, sweet treats, and evencombinations one may find repulsive ordisgusting.

How appropriate that Clark County has a dual-threatwarrior: in the foodie world and in the legal community.

Aaron Wakamatsu, associate attorney at Salmon Creek LawOffices, specializes in landlord-tenant law. Aaron was born andraised in Hawaii, on the island of Oahu. His father worked for thenow-defunct Aloha Airlines, while his mother works at HawaiianElectric Company in Honolulu. Aaron attended the University ofHawaii at Manoa, majoring in Economics and obtaining a minorin English. After working a few part-time jobs, Aaron earned hislaw degree at Willamette University.

Before becoming an attorney, Aaron started Aaron’s Food Adven-tures in May 2011, a food blog covering restaurants and food cartsin several U.S. states. Aaron also added Canada to his food adven-tures in November 2013. Aaron continues his weekly blogs todate, usually highlighting two or three places per week.

There are currently over 700 licensed food carts in Portland.About 450 are currently open for business, as some food carts maybe seasonal operations or on hiatus. Aaron has covered hundredsof Portland’s food carts alongside other Portland food bloggers.Check out Aaron’s blog at http://www.foodreviews.aaronwaka-matsu.com/. But beware, his posts may make you hungry!

Some of Aaron’s Portland food cart recommendations includeBig Ass Sandwiches (huge sandwiches with hand-cut fries insidethe sandwich), Chez Dodo (Mauritian cuisine), Pepper Box(New Mexican and Tex Mex-inspired dishes), and PDX 671(Guamanian food). For dessert, check out Salt & Straw, a busi-ness that started as a tiny ice cream push cart. Three scoop shops later, Salt & Straw has arguably the best ice cream in the Rose City.

Eventually, food writing was not enough forAaron. He started a YouTube channel in

August 2012, initially intending to focuson Portland’s food cart scene. After atrip to Salvador Molly’s to completethe “Great Balls of Fire” habanerofritter challenge, Aaron put a primaryfocus on spicy food for his YouTube

videos. You can find all of his videos athttp://www.youtube.com/user/Aaron-

FoodAdventures.

Whether it was reviewing ghost pepper tortilla chipsor eating an entire Carolina Reaper pepper (given the GuinnessWorld Record for world’s hottest pepper in November 2013),Aaron developed a willingness to deal with the pain.

Eating 10 McDonald’s hamburgers has been done before, butprobably not while chugging ghost pepper sauce with those ham-burgers. Ever wonder what wing sauce and pepper extract tastelike on Twinkies? Aaron also tried that one (“not good, but nothorrible”).

Eerily, Aaron appeared to enjoy putting himself through uncom-fortable stunts on a few videos. Aaron randomly came up with thenickname “spicochist” (a portmanteau of “spicy” and“masochist”) in 2012, and the name has stuck since.

While you may see large food challenges on his YouTube channel(such as Beth’s Café 12-egg omelet) or non-spicy food reviews(ever try a kangaroo taco?), spicy food clearly remains Aaron’s pri-mary passion.

While Aaron continues his food blog and YouTube channel, hehas also submitted pieces for forthcoming publications as a con-tributing food writer. Both are scheduled for release later in 2014.

A Food WarriorHEARSAY STAFF

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The Clark County Bar Association Presents:

What’s New In Ethics

Presented by Lainie Hammond & Gale Kirsopp

Wednesday, March 5, 2014 12:45 pm—1:45 pm

Red Lion in at the Quay

1 CLE Ethics Credit—$25.00

To register: call the CCBA at (360) 695-5975, OR email: [email protected], OR

FAX this flyer to (360) 737-6891 with your BAR NUMBER _____________________________,

NAME _____________________________________ PHONE #__________________________,

and EMAIL ___________________________________________________________________.

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Susan Arney, Executive DirectorAshley Belisle, Program CoordinatorAdministrative: 360-823-0423E-mail: [email protected]

Happy New Year! If you haven’t signed up for clinic dates in2014 please contact me soon. The dates are filling up but thereare still plenty left. Remember, you can get free CLE credit forvolunteering. You can get 2 CLE hours for training with me and 4CLE hours for 4 hours of volunteering. That is only 2 clinic dates.

The big event of the year is coming up – The Barrister’s Ball. Thisyear the proceeds will be donated to the Volunteer Lawyers Pro-gram. We really appreciate this and hope all of you will attendand support us. Get your tickets from the Bar Association andjoin us for all the fun.

Thank you for volunteering.Susan

MANY THANKS TO ALL THE ATTORNEYS AND PARALEGALS WHO STAFFED THE ADVICE CLINICS,HOMELESS CLINICS, PROVIDED REPRESENTATION,AND VOLUNTEERED IN THE HOMELESS COURT INTHE MONTH OF NOVEMBER

DIRECT REPRESENTATIONSusan Hammann, Stanley Horak, Rob Russell,Lisa Toth, Todd Trierweiler

YWCA SAFECHOICE DV CLINIC:Sidney Dolquist, Marlene Hansen, Jeff Holmes

FAMILY LAW:Ed Dawson, Sidney, Dolquist, Marlene Hansen, Susan Hammann, Lincoln Harvey, Scott Horenstein, Brian Parker, Susan Stauffer, Lisa Toth

GENERAL LAW:Michael Borge, Stewart Martin

HOMELESS COURT:Heather Carroll, Jeff Courser, Todd George, Abby Powell,Diane Sweet

HOMELESS SHELTER:Peter Fels, Gavin Flynn

HOUSING JUSTICE PROJECT:Matt Crawford, Tresa Cavanaugh, Ed Dawson,Scott Matthews, David Nordeen

HOME FORECLOSURE PROJECT:Janie Wilson

Statistics for NOVEMBER

“Like Us”onstay connected

facebook.com/CCBAWA

NEWS YOU CAN USE

New Address:Maggie Smith Evanson1010 Esther StreetVancouver, WA 98660

LAW LIBRARY NEWS

After hours law library access keycards for current keycard hold-ers is due by the end of January in the amount of $36. If you donot have a keycard and are interested in obtaining one, pleaseask the law librarians for the application.

FOR SALETHROUGH FEBRUARY, 2014The law library is taking blind bids on the following items:

1. Represent Yourself in Court, 7e, by NOLO 2. How to File for Chapter 7 Bankruptcy, 17e, by NOLO 3. Foreclosure Survival Guide, 3e, by NOLO 4. Electronic Discovery and Records and Information Manage-

ment 2012-2013 5. Washington Practice Handbook on Civil Procedure v. 15A

2011-2012 6. Washington Practice Handbook on Evidence v. 5D 2011-

20127. Washington Practice Elements of an Action v. 29 2011-20128. Washington Practice Torts v. 16-16A with 2011-2012 supple-

ments9. Elder Law Forms Manual CD Rom Forms on Disc 7/1310. Washington, Oregon, Alaska LLC forms 2013 CD Rom11. Construction Litigation Handbook 2012 (2 volumes012. Social Security and Medicare Answer Book 4e with 2013

supplement

Give your bid to the law librarian through the end of February.Bids must indicate your name, phone number, amount, anditem(s) on which you are bidding. Winners will be notified inearly March. We reserve the right to withdraw an item frombidding.

ATTORNEY BOOKKEEPING TIPS

BOOKKEEPING MATTERSFor 2014 license fee/dues, the non-deductible portion for the WSBA(Washington State Bar Association) and MBA (Multnomah BarAssociation) are as follows. Tip: Record the non-deductible portionunder a separate category to easily identify.

Ø WSBA ~~~ $7.92Ø MBA ~~~ $5.00

The IRS mileage reimbursement rates are:Ø 56.5¢ per mile for 2013Ø 56¢ per mile for 2014

In general, meals are limited to 50% deductibility. Holiday companyparties for employees are 100% deductible.


LISA DARCOCCBA Office Manager

EMANUELA SANDRIAttorney Bookkeeping Services, Inc.

MARIA SOSNOWSKILaw Librarian

Reproduced with permission. For more cartoons and information, go to http://www.legallydrawn.com.

LEGALLY DRAWNDon't be the 29th wheel.

Advertise in next month’s HEARSAYCall Lisa Darco at 360.695.5975 for rates and availability.

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Representing InjuredWorkers on Their

Washington ClaimsBusick Hamrick, PLLC

Steven L. Busick Frances R. Hamrick Douglas M. Palmer

(360) 696-02281915 Washington Street Vancouver, WA 98660

Admitted to practice in Washington & Oregon

[email protected]

360-253-3667

Outstanding legal help on complex claims

Brain Injury, Spinal Cord Injury, Death Claims

Medical Malpractice, Accidents, Premises Liability

Referral Fees/Fee Splits, as per RPCs.

“Complex Serious Injury Case? I Can Handle it.”

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MOCK TRIALThe Clark County District

Mock Trial Tournament will be held at the courthouse on

Wednesday and Thursday, February 12th and 13th.

GOT COPIES?The CCBA office now offers self-service copies

to members for only .05¢ per page*

Need your copies stapled, hole punched, collated, or double sided?Our machine can do that! Think of the possibilities.

*Black and White onlyCall Lisa at: 695-5975

February 5, 2014CCBA Board MeetingCCBA Office - Noon

February 11, 2014Superior Court Bench/BarClark County Courthouse - Noon

February 12 - 13, 2014Mock TrialClark County Courthouse

February 12 , 2014Nuts & Bolts CLE: The Nuts & Bolts ofHandling a Sexual Harassment CaseRed Lion at the Quay 3:00pm - 5:00pm

February 13, 2014Family Law Section Lunch and HolidayPartyVancouver Hilton - 11:30am

February 19, 2014Hearsay Committee MeetingCCBA Office - Noon

February 19, 2014Inns of CourtRed Lion at the Quay - 5:00pm

February 27, 2014Brown Bag CLE - Dog Bite & Animal lawPublic Service Center Noon - 1:00pm

March 1, 2014Barrister’s BallThe Heathman Lodge


PRESIDENT’S MESSAGE

The CCBA’s Lawyer Referral Service is a program designed tohelp the general public find attorneys appropriate for their needs,while at the same time providing a source of new client businessexclusively to our members.

To participate, members pay a small one-time annual fee. (The service is free to the public.) For more information, call the CCBA at 360-695-5975.

THE SWLRS REFERRED 129 CLIENTS IN THE MONTH OF DECEMBERAdministrative Law ............................................................13Bankruptcy............................................................................2Business & Corp ..................................................................1Consumer ............................................................................7Criminal ..............................................................................10Debtor/Creditor ....................................................................9Family Law..........................................................................23General Litigation................................................................22Labor & Employment ..........................................................10Real Property ......................................................................16Wills & Trusts ....................................................................11Worker’s Comp ....................................................................5

SW WASHINGTON LAWYERREFERRAL SERVICE

UPCOMING EVENTSMEETING

MEETING

MEETING

MEETING CLE

CLE MEETING

SOCIALSOCIAL

So here we finally are in 2014. It’s the time of year for all thoseNew Year resolutions, diets and a breather from the hectic holidayperiod. Much as I love the holiday season I do always breathe asigh of relief when we get to January and back into some kind ofroutine. That will last about 4 weeks and then I will start longingfor the cold wet weather to end and summer to arrive.

My family spent 10 daysin Trinidad over theChristmas holiday. Myhusband was asked topresent a seminar thereand it seemed like a goodopportunity for us all toget away. We always tryto immerse ourselves inthe community and cul-ture when we travel so werent houses in local com-munities as often as wecan rather than staying inhotels. Trinidad is acountry of contrasts. Inthe north it is very rural

with small villages, rainforests and beaches. As we spent our firstfew days in the north we concluded that is what the country waslike until we drove south for 2 days to visit some people we knowand passed multiple malls, Kentucky fried chicken outlets andcommercials for liposuction and weight loss. The south is veryAmericanized, primarily because of the wealth derived from oil.

It was good to be away in a warm climate and I had a true breakfrom work staying away from all work email for 10 days. I feelmuch better for it.

Our CCBA Christmas social with Christmas ships and Santa wasa great success. Thanks to all who helped - particularly to Santaand to our photographer John Hoefer who provided at no chargefamily shots and photos of your kids with Santa. If there is enoughinterest we may make this an annual event.

Forthcoming events for your calendar are of course our Barrister’sBall and Casino Night at the Heathman Lodge on March 1 andour General Meeting on March 5 which will be followed by a CLEfrom Lainie Hammond on trust accounts.

I also have some exciting news to share with you. The SupremeCourt justices will be in Vancouver on May 12 and 13 to hear oralarguments on cases. This will take place at Clark College. JudgeMelnick has been instrumental in facilitating this visit and ourlegal community is honored to have them. The letter to accept-ance is included at the end of this message.

The current plan is that the court will hear oral argument on May13. On the evening of May 12 the CCBA will be hosting a recep-tion for CCBA members to meet the justices and enjoy somesocial time. We are still in the process of working out the detailsbut save the date. It is sure to be a great event.

Wishing you all a very happy and healthy New Year.

JANE CLARKCCBA President

specializing in

BANKRUPTCYCONSUMER BANKRUPTCY - CHAPTER 7 & 13

MARK A.CARTERL A W O F F I C E

Serving Washington

State and Federal Court

for 19 Years

694-8955markcarterlaw.com

2414 MAIN STREET • VANCOUVER, WA 98660

THIS MONTH’S ISSUE

President’s Message ............................................................................3CCBA General Meeting & Lunch ..........................................................5A Food Warrior ......................................................................................7CLE Calendar ........................................................................................8CCBA Board Meeting Minutes ..............................................................9The Nuts & Bolts of Handling a Sexual Harassment Case ................10Family Law Section December Report ..............................................11Young Lawyers’ Section......................................................................11Superior Court Bench/Bar Minutes ....................................................12Nuts and Bolts CLE: Estate Planning and Charitable Giving ..............15Inns of Court........................................................................................16Barristers’ Ball Nominations ..............................................................18CCBA Member Spotlight: The Source ................................................20

What You Always Wanted to Know About Lie Detector Tests ..........22Nuts & Bolts CLE: Employment Law Basics for the Business Lawyer ..24Premises Liability ......................................................................................26Double Hearsay ..........................................................................................29Hearsay Profile: Joshua Pops ............................................................30Clark County Volunteer Lawyers’ Program ........................................31 News You Can Use..............................................................................32Law Library News................................................................................32Attorney Bookkeeping Tips ................................................................32Legally Drawn......................................................................................32SW Washington Lawyer Referral Service ..........................................34Events Calendar ..................................................................................34

2013/2014 CCBA OFFICERS & TRUSTEES

HEARSAY is published 12 times per year and is design edited by: GOUGH CREATIVE GROUPJEFF GOUGH, Creative Director • 360-818-4GCG • [email protected]

An annual "green" subscription is included with annual membership dues. Members may purchase a hardcopy subscription for $48.00. Letters, news items, upcoming events and announcementsare welcome. Articles by members are accepted. Submissions should be presented in Microsoft Word and may be edited for length, clarity and style. Submissions by members are published atthe editor’s discretion and space available. Views expressed in articles represent the authors’ opinions, not necessarily the CCBA’s. The publication does not purport to offer legal advice.

CCBA OFFICE HOURS: Monday through Friday, 12:00 p.m. to 4:00 p.m.

360-695-1624 [email protected] www.nwinjurylawcenter.com

Don Jacobs will handle your cases in Washington... and Oregon.A past-president of the Oregon Trial Lawyers Association, Jacobs isavailable to take your cases to court in either state.

He delivers. In two states.

360-695-1624 [email protected]

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IMMEDIATE PAST PRESIDENTJohn Fairgrieve(360) [email protected]

TRUSTEEJill Sasser(360) [email protected]

TRUSTEELaura Mancuso(360) [email protected]

TRUSTEEGideon [email protected]

VLP REPRESENTATIVELe Ann Larson(360) [email protected]

OFFICE MANAGERLisa Darco(360) [email protected]

MEMBER SERVICESHeather Norton(360) [email protected]

PRESIDENTJane Clark(360) [email protected]

VICE PRESIDENTArin Dunn(360) [email protected]

SECRETARYRick [email protected]

TREASURERJ.D. Nellor(360) [email protected]

Law office of:

JANE E. CLARKA T T O R N E Y A T L A W

1014 Franklin StreetFranklin Suites, Suite 108

Vancouver, WA 98660

Available for Referral or Association

Vancouver 360.859.3823Portland 503.974.4161

Email [email protected]

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800-693-9006 • Phone 360-514-9550 • Fax 360-514-9551

www.DavidsonInsurance.com

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Call Lisa Darco for pricing & space availability:

360-695-5975

CLARK COUNTY BAR ASSOCIATION500 W. 8th Street, Suite 65Vancouver, WA 98660

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ccbawashington.orgJANUARY 2014

FOOD WARRIORpage 7

FOOD WARRIORpage 7

jan '14 - inside pages - welcome | ccba · clark county bar association 500 w. 8th street,...

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