Why mediate?

Mediation is voluntary and can often encompass more issues than those that are involved in the specific dispute. Creative mediators will encourage the parties to think “outside the box.” It is even possible that a relationship can be repaired by finding common ground.

Mediation (or some other form of dispute resolution) is required in most civil lawsuits in King County. It should be considered in all cases.

If you have questions about mediation, if you are looking for an attorney to help you or represent you at a mediation or if you are looking for a mediator, I look forward to your calls.

Attorneys have the right to require parties and witnesses to answer questions during the discovery process. It can be a nerve wracking time. Most lawsuits settle because of what happens during the depositions.

The person who is deposed is called the deponent. At your deposition, you are able to have your attorney present. Normally, the other lawyer is also present as is the opposing party. A court reporter will take notes and make sure that the deposition is properly recorded. The deposition can be recorded by tape, typed up with a special transcriber machine, and/or placed on videotape. You will be placed under oath and the attorney for the other side can ask you questions about your case. Your attorney will be able to object to the questions asked, if appropriate. After the deposition is completed, either side can ask that it be typed up (transcribed.) Lawyers can use the transcript from the deposition at trial or in support of motions filed in your case.

Preparing for your deposition

It is important that you are prepared for your deposition. An unprepared person may provide responses which are inconsistent with those previously given on other occasions, and may allow the other attorney to argue that you were not being truthful at your deposition or at trial.

Discuss your concerns with your lawyer before the deposition so that your questions are answered. It is important to:

• Review all other statements that you have made in the past about your case, especially affidavits and other documents which have been filed in court.
• Review your notes, logs, calendars and other paperwork so that you can easily recall the important details such as dates, times and events which previously occurred.
• Discuss subjects which are sensitive that you may not wish to disclose so that both you and your attorney are aware of these matters. Attorneys who learn things for the first time at a deposition may have more difficulty protecting your interests.

Attending your deposition

The most important thing you can do at your deposition is to tell the truth. You are initially placed under oath and you have sworn to tell the “truth, the whole truth and nothing but the truth.” Many cases turn on the issue of credibility. If a lawyer can prove that your answers are untruthful, the judge may disbelieve you at trial.

At the deposition, listen to the questions. Don’t answer before the question is completely asked. Think about the question and pause for a moment before answering. This will give you time to insure that your answer is correct. Also, this will give your lawyer time to state an objection, if necessary. Also, this will stop the other lawyer from trying to ask questions and receive responses so fast that you answer quickly without thinking.

Don’t get mad at the other lawyer at the deposition. Lawyers may use the deposition as a way to find your weak points so that they can push your buttons at trial and make you angry. Finally, keep cool at the deposition, and generally keep your answers brief and to the point.

1. In cases involving less than $50,000 in controversy, the parties must go through mandatory arbitration.
2. In cases involving less than $10,000 in controversy, a party can make an offer of settlement and, if after arbitration they recover as much or more than offered, they can recover their attorney’s fees and costs.

The Washington Supreme Court, in Williams v. Tilaye (2012) looked at the interplay of the mandatory arbitration rules and the offer of settlement rules and overturned an award of attorney’s fees to the plaintiff because the plaintiffs’ offers to settle came AFTER the mandatory arbitration.

The issue before the Court was this: whether the plaintiffs in a personal injury suit who made an offer of settlement after mandatory arbitration but before trial de novo, and recovered more after trial than they offered in settlement, are entitled to attorney fees under RCW 4.84.250.

In his long, but unanimous opinion, Justice Sanders explained policy rationale and language between the two statutory schemes which should be required reading for any practitioner handling smaller dollar value claims or matters subject to mandatory arbitration. For everyone, litigants and counsel alike, the rule in these cases should be to make those offers to settle early so as to preserve your right to collect an award of attorney’s fees.

In his case, the plaintiffs were each received a judgment. One judgment was for $20,512. The other received a judgment for $7,482.

The trial court had awarded attorney’s fees of $49,847.50 and $25,722.00. The failure to make a timely offer meant that these awards were overturned.

If you have a claim or are defending against a claim where the damages sought are less than $10,000 it is important to have discussion with your attorney about the strategic and tactical reasons for making early offers to settle.

The case is Kiely v. Graves and concerns competing claims to a portion of an alley that had been vacated by the city of Port Townsend. William and Sally Chapin Kiely were neighbors to Kenneth and Karen Graves. An alley ran the length of the properties, and as long as anyone could remember, a wire fence ran the length of the two properties.

The Graves property adjacent to the disputed alley has remained open space where the Graves have planted fruit trees, berry vines, and garlic. Part of the Kielys’ cottage encroached upon the disputed alley.

In 2008, the Graves filed a petition with the city to vacate the western half of the alley and merge it into their property. The city held a public hearing on the application and in February 2009, the Port Townsend City Council passed an ordinance to vacate the alley and convey the vacated alley to the Graves through a lot line adjustment.

The Kielys then filed an action claiming that they owned the entire alley through adverse possession. The trial court agreed with the Kielys.

The Supreme Court granted direct review to decide whether the Kielys could assert adverse possession based on events which preceded vacation of the alley. Upon review, the Court found that Port Townsend held an easement interest in the alley until it was vacated by public hearing. This is a critical finding because RCW 7.28.090 prevents the adverse possession of property owned by a governmental entity. The Kielys agreed that the interest held was an easement interest, but they argued that the statute should not apply to easements.

As the Court clearly stated, “This case hinges on whether an easement dedicated for a public thoroughfare constitutes ‘land held for any public purpose’ under RCW 7.28.090. We hold that it does.”

And with that, the Court reversed the trial court and rejected Kielys’ adverse possession claim.

Dedicated unused and opened alleys run through many areas in our towns and cities. Even long use of these unused alleys will not result in the property being transferred to the possessors.

While attorneys all approach their craft in unique ways, there are several steps that most trial lawyers will do before trial. For me, the pretrial preparation begins when my calender system alerts me that trial is 100 days away. I do the following:

1. Review the entire file (reading the pleadings, correspondence, notes and memorandums that were created during the initial investigation and discovery phases).

2. Identify if there are any steps that need to be completed or updated. This usually involves a review of status of the discovery. Have all the interrogatories been answered? Do they need to be supplemented? Are all the pertinent documents where they can be found? Do we have them all?

3. Update any legal issues. I review the legal issues that were previously identified and update the research that had been done. Were any cases or statutes changed since the original work had been done? Are there any new legal issues that need to be researched?

4. Identify all witnesses. Who will be testifying at trial? It is important to identify which witnesses will be testifying. Outlines of their prospective testimony need to be created. Particular attention needs to be paid to tie the documents and trial exhibits to the specific witnesses that will be used to introduce them.

5. Contact all our witnesses. I send a form letter to all of our witnesses informing them of the upcoming trial date. I follow this up with a phone call to confirm their attendance and also to schedule a time to meet to review their testimony.

6. Settlement. With the wealth of information at this point in the matter, it is a good time to revisit settlement. Both sides might be more willing to discuss settlement and, with the help of a professional mediator, this is often the point when disputes are resolved.

7. Create final pretrial list. After completing the foregoing, I will often put the matter aside for a few weeks. Then, 50 days before trial, the final trial preparations begin. I will write more about those steps in a future post.

Not only during these final stages, but throughout the litigation, it is important for there to be communication between myself and my clients about their goals. I have never had a client with a goal of “going to trial.” Their goals most often concern some underlying interest. Whether it is a lawsuit to recover money (or avoid a claim brought by one seeking money) or concerning a real property boundary, they want to dispute over with and there interests protected. Revisiting their goals, discussing their interests and advising them on the strengths and weaknesses of their positions, happens from my first contact with them, through the end of the representation.

In McCleary, the Supreme Court ruled that the Legislature has failed to fulfill the state’s constitutional mandate to amply fund education. McCleary v. State, No. 84362-7.

The court issued a lengthy opinion authored by Justice Debra Stephens. Justice Stephens summarized the major points of the ruling:

• The judiciary has the primary responsibility for interpreting article IX, section 1 to give it meaning and legal effect.

• The legislature has the responsibility to augment the broad educational concepts under article IX, section 1 by providing the specific details of the constitutionally required “education.”

• Article IX, section 1 confers on children in Washington a positive constitutional right to an amply funded education.

• The word “education” under article IX, section 1 means the basic knowledge and skills needed to compete in today’s economy and meaningfully participate in this state’s democracy.

• The current substantive content of the requisite knowledge and skills for “education” comes from three sources: the broad educational concepts outlined in Seattle School District, the four learning goals in Engrossed Substitute House Bill (ESHB) 1209, 53d Leg., Reg. Sess. (Wash. 1993), and the State’s essential academic learning requirements (EALRs).

• The “education” required under article IX, section 1 consists of the opportunity to obtain the knowledge and skills described in Seattle School District, ESHB 1209, and the EALRs. It does not reflect a right to a guaranteed educational outcome.

• The program of basic education is not etched in constitutional stone. The legislature has an obligation to review the basic education program as the needs of students and the demands of society evolve.

• The word “ample” in article IX, section 1 provides a broad constitutional guideline meaning fully, sufficient, and considerably more than just adequate.

• Ample funding for basic education must be accomplished by means of dependable and regular tax sources.

• The State has not complied with its article IX, section 1 duty to make ample provision for the education of all children in Washington.

• The legislature recently enacted a promising reform package under ESHB 2261, 61st Leg., Reg. Sess. (Wash. 2009), which if fully funded, will remedy deficiencies in the K-12 funding system.

• This court defers to the legislature’s chosen means of discharging its article IX, section 1 duty but retains jurisdiction over the case to help facilitate progress in the State’s plan to fully implement the reforms by 2018.

In a rare move, the Supreme Court retained jurisdiction of the case and gave the Legislature a six year deadline to implement necessary reforms.

This is a historic decision that will have implications for every citizen of this state for decades to come.

When the tenant defaults on rent

If a tenant defaults in rent and reasonably indicates the intention not to resume tenancy, the landlord may enter and take possession of any property of the tenant found on the premises and may store it in a reasonably secure place. RCW 59.18.310(b).

The landlord must make reasonable efforts to provide the tenant with notice which contains the name and address of the landlord and the place where the property is stored. The notice must also inform the tenant that a sale or disposition of the property shall take place pursuant to RCW 59.18.310, and provide date of the sale or disposal. The notice must also inform the tenant of his or her right to have the property returned prior to the sale under RCW 59.18.230.

The notice obligations are met by mailing the notice first class, postage pre-paid to the tenant’s last known address and to any other address provided by the tenant.

The landlord must return the property to the tenant after the tenant has paid the actual or reasonable drayage and storage costs, whichever is less, if the tenant makes a written request for the return of the property before the landlord has sold or disposed of the property.

The sale or disposal may occur 45 days from the date of the notice. Any income from the sale may be applied against moneys due, including actual or reasonable costs of storage.

If the property is less valued at less than $250 the landlord may sell or dispose of the property after 7 days from the date of the notice of sale or disposal is mailed or personally delivered, provided the landlord makes reasonable efforts to notify the tenant.

When the tenant is evicted

The rules change if there has been an eviction. If a writ of restitution has been executed by the sheriff, RCW 59.18.312 applies. The landlord “shall” enter and take possession of tenant property found on the premises, and may store the property in a reasonably secure place, with the option of selling or disposing of the property.

The landlord must store the property if the tenant serves him with a written request to do so within 3 days after service of the writ. Without such service the landlord may elect to store the property. If the tenant objects to the storage, the property must be deposited upon the nearest public property and may not be stored by the landlord.

Before the landlord is entitled to a sale of the property valued at over $250 he must give notice to the tenant via first-class mail or personal delivery. For property valued at $250 or less, the landlord may sell or dispose of the property after seven days from the date the notice is mailed or delivered to the tenant.

How many sellers know that a statutory warranty contains warranties that they are making to the purchaser? How many sellers know that the purchaser might come back to them, sometimes after several years, and claim that one or more of the warranties have been breached?

I suspect very few.

When you are selling or buying real estate, be aware that there are different kinds of deeds.

If a statutory warranty deed is to be used, emphasis should be on the WARRANTY not the deed. Ask yourself if you are comfortable making the warranties contained in the deed.

In Washington when a grantor (seller) delivers a statutory warranty deed, the grantor warrants “(1) That at the time of the making and delivery of such deed he was lawfully seized of an indefeasible estate in fee simple, in and to the premises therein described, and had good right and full power to convey the same; (2) that the same were then free from all encumbrances; and (3) that he warrants to the grantee, his heirs and assigns, the quiet and peaceable possession of such premises, and will defend the title thereto against all persons who may lawfully claim the same, and such covenants shall be obligatory upon any grantor, his heirs and personal representatives, as fully and with like effect as if written at full length in such deed.” RCW 64.04.030. A warranty deed has nothing to do with the quality or condition of the improvements—the warranties affect title only.

What does this mean?

Perhaps grantors are most surprised, when years after the sale, a buyer comes back to them and tells them that a neighbor is making a claim to a portion of the property based on adverse possession. Because one of the warranties in the warranty deed is to “defend the title thereto” the seller may be forced to defend against the adverse possession claim. This is not merely an inconvenient matter. Attorney fees in defending an adverse possession claim can reach into the tens of thousands of dollars.

In addition to defense costs, a grantor may be forced to pay to the buyer a sum to compensate for any property lost to the adverse claimant.

If you are buying or selling real estate, pay attention to the form and language in the deed being used. If you have questions, call an attorney.

Provided that the boundary line has been ignored for the requisite period of time (usually ten years), the user can acquire title to the other’s property. What they acquire might be “fee simple” ownership of the property or they might acquire a “prescriptive easement.”

“Fee simple” ownership is, basically, ownership of the property. If the user had “exclusive” possession of the property then they would acquire “fee simple” ownership through adverse possession. An adverse possessor would do something to exclude the true owner and the public from the area of possession. Typically, this would involve fencing in the area.

A “prescriptive easement” would be acquired if the user had made use of another’s property for a specific purpose and the use did not exclude the true owner and/or the public. Prescriptive easements often involve driveways or pedestrian pathways.

The distinction is critical and has far reaching implications. Adverse possession will result in new boundary lines. The adverse possessor’s use of the property will not be limited. A prescriptive easement, on the other hand, will leave the original boundaries in place and the possessor’s use will be limited to the activity that gave rise to the prescriptive easement.

If a dispute arises, claimants may often claim both adverse possession, in fee, as well as the creation of a prescriptive easement. A judge will decide on which result depending on how the evidence develops and is presented.

Prior to 1967 (and even after in the case of agricultural property) real estate contracts were typically used in seller-financed transactions. Sellers stopped using them because the Deed of Trust Act had created a system that was well-balanced between the rights and concerns of lenders and borrowers. They system was clear and unambiguous. The recent housing crises has changed this.

Foreclosing on a deed of trust is no longer efficient and predicable. Recent changes to the Deed of Trust Statute, while most likely warranted, have created uncertainties that were not there before.

Because of the upheaval in the housing market, all the parties in a seller-financed real estate transaction should look at using a real estate contract. These established financing vehicles have a long history which has been relatively undisturbed by the housing crises and the legislative changes to the Deed of Trust Act.