Contingent Fees and Sure Winners

Years ago when I was practicing in Seattle I expressed objection to many of the lawyers I knew in the firm I was with for a time about the practice of probate lawyers charging a percentage against the gross value of the estate or at least (an hourly rate I would suppose).  Some of the fees I knew about in probates I knew about were extraordinary.  The fee was what it was, all seemed to say.  Thankfully, things have changed.

The other day the ABA Journal published a piece about contingent fees in sure thing personal injury actions.


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Writing an Appellant’s Opening Brief in the 9th Circuit Court of Appeals

My opening brief can be 30 pages long, 14 point type, double-spaced, margins 1 inch on all sides.  Footnotes have to be in 14 point type too.  I have been working on the brief for some time. I have tried to keep myself from being rushed, so I have managed my time to be able to spread the work out and devote time to it to the work everyday.

The brief is not like anything I have written before.  I would like to say it is more succinct than I am used writing (or so I tell myself).  The experience has been rewarding.  However, in the next day or so, I will finish it and send it off so that my secretary who is in California for three weeks will get a chance to weigh in on the final product.



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I am a “county seat lawyer”

About 1950, Supreme Court Associate Justice Robert H. Jackson, give us the image of a lawyer, who existed, and who did his work for his clients in the county jurisdictions of the states across the continent.  That knowledge, that idea, was a description of the lawyer’s life as known and aspired to by Robert H. Jackson, A County Seat Lawyer in the Western part of New York State.

I come from Minnesota. The Hennepin County Superior Court was a “county seat court,” but not really.  The county seat lawyer does his work in more commonly understood situations, less complicated, more directly connected experiences personally experienced by “relatives, friends and neighbors.”


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Thinking of the Washington Lawyer Discipline System

The WSBA says that it and its members are champions for justice.  I like that.  If it is true, it is an honor to be a member of the “profession of the bar.”  A very pleasing and inspiring notion.  I wonder:  Is the Washington State Bar Association truly a champion of justice?  Is the Washington Lawyer Discipline System an example of a system which is a champion of justice?  I think not.  For starters, a system of justice which is, in all its aspects, a system whose functions are performed by those selected by the WSBA is not a system which is the champion of justice.  It is clearly wrong to allow an interested party to select all the members of the system, and it is clearly wrong to have aspects of the system which advance the interest of the WSBA.  No one can honestly say that the system is one those who care about justice is a systemic championing of justice.

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Alone in New York City or Elsewhere with Minor Variations



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Collapse: Social, economical, and political — “bubbles bursting” into collapse

The greater events of our common experience seem to happen, as if things had been building into something which was bound, finally and immediately, to burst, collapse.

How fascinating.  The stock market crashed because forces began to proceed on a more and more single course which had to split and break apart because such was its nature.

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Judge Posner and the People — The internet.

The current issue of the American Bar Association Journal has a story about Judge Richard Poster and some of his fellow judges on the 7th Circuit Court. The issue is internet research by a judge on the case.  Here’s one quote from the ABA Journal.

According to How Appealing, the decision “will no doubt rekindle the debate about the extent to which appellate courts can and should perform independent factual research in deciding an appeal.” Josh Blackman’s Blog has coverage here.

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Hercules and Leo

Hercules and Leo and the court.

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McCleary – Washington K-12 Funding Case, Amicus Brief of Stephen K. Eugster

Today I filed a Motion to be allowed to file another Amicus brief in McCleary.  The brief  can be found here.   2015_08_03_third_amicus

August 14, 2015 — Update, my brief, filed on August 3, was rejected by the court on August 4, 2015.  With the court’s decision yesterday, I understand why it was rejected.  Seattle-Times.

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Without action on school funding, state may face crisis

June 20, 2015

It is the paramount duty of the state to make ample provision for the education of all children residing within its borders, without distinction or preference on account of race, color, caste, or sex.

Washington. Constitution. Art. IX, Section 1

For decades, the state of Washington has failed to provide acceptable school funding for its K-12 students. Immediately, the reader will say, yes but the state is not adequately funding other state activities. K-12 education is different. The Washington Constitution makes school funding a positive right and the primary duty of the state. Proper school funding for K-12 children is the only positive right in our constitution.

Over the years, Washington courts have addressed the school funding issue several times. The cases have gone nowhere except for the McCleary Case. It was begun in 2007 by the McCleary and Venema families. It reached the Washington Supreme Court and was decided in 2012. The Court decided that Washington Constitution. Art. IX, Sec. 1 means the state must adequately fund K-12 education over all other state-funded programs.

In 2009, the Legislature passed its plan to adequately fund basic education by adopting Engrossed Substitute House Bill 2261. ESHB 2261 is an education reform bill. It defines the state’s “Program of Basic Education” and the funding amounts and methods needed for full support of Basic Education. In McCleary, the court ordered full funding of ESHB 2261 be completed by 2018.

The court retained jurisdiction of McCleary and its decision and has been monitoring the Legislature’s progress. In September 2014, the court found the state in contempt of the court because it had not, by that time, made sufficient progress toward full funding. Under its contempt order, the court has given the Legislature to the end of the second special session this year to pass legislation to provide full funding of ESHB 2261.

After the Legislature adjourns, another McCleary hearing will take place for the court to decide whether the Legislature is meeting its full funding duty. At this hearing, and if the Legislature is not meeting its full funding duty, the court, using its inherent power to enforce its decisions, might impose various remedies and sanctions against the state.

The McCleary lawyers suggest some rather severe actions: imposing monetary or other contempt sanctions; prohibiting expenditures on certain other matters; ordering the Legislature to pass legislation to fund specific amounts or remedies; ordering the sale of state property to fund constitutional compliance; invalidating education funding cuts in the budget; prohibiting any funding of an unconstitutional education system, etc. These remedies and sanctions are dramatic and, some would say, drastic, even harsh.

The court will be questioned about its authority to impose any of these measures. A major difficulty is that the only defendant in the McCleary case is the State of Washington. It is doubtful orders addressed to the state will have any consequence. In addition, the power of the court to act in any way suggested, will raise serious constitutional concerns, namely the Separation of Powers Doctrine.

Chief Justice Barbara Madsen, in her concurring-dissenting opinion in McCleary, said the way to enforce the court’s decision is provided by the court’s “original jurisdiction” over petitions for writs of mandamus against state officials. (Washington Constitution. Art. IV, Section 4 – “The supreme court shall have original jurisdiction in habeas corpus, and quo warranto and mandamus as to all state officers.”) Using this original jurisdiction, the McCleary parents, or any other parents of K-12 children with a proper interest, could file a mandamus action in the Supreme Court against state officers, individual state legislators and the governor.

The court could then, after proper procedures and hearing, issue writs of mandamus ordering the state officers, individually, to provide full funding of ESHB 2261. If the officers did not fulfill the writs of mandamus, they would be punished, possibly with continuing fines, until the mandamus was fulfilled.

If the Legislature does not fulfill its duty by the end of the second special session, the state will be faced with a major constitutional crisis, the likes of which have never been faced before by the governor, legislators, Supreme Court and, most significantly, K-12 children and their parents.

Stephen K. Eugster is an attorney and former member of the Spokane City Council.

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