sure—and trying to convince myself—of the
vibrancy of this old dog.
I’d spent an odd final month—sorting,
dumping, bringing home a few boxes. It was a
laborious process, slowed by unearthing notes
on scraps of paper with bits of courtroom
poetry (witness: “I seen him rack back a black
nine”) and cryptic messages to myself (“Max
Weber: authority must retain some mystery.”)
It was a fine distraction from contemplating
going out to pasture. When I had first begun
to ponder how to keep active after leaving the
bench, I’d had vague notions of creating a law
school course that mixed law and literature
with real-life scenarios in which I’d found or
imagined myself. An academic cold
shoulder was an unsubtle nudge in the
direction of finding something more
practical, whether in their world or mine.
That is when I became more receptive to the
allure of private dispute resolution.
For some time, JAMS had been courting
me but, non-violent by nature, I’d initially
been turned off by someone’s use of the bloody
awful term “Eat what you kill.” More appetizing,
and ultimately persuasive, was JAMS’ promise of familiar
work coupled with the freedom to do precisely as much or as
little of it as I alone decided I wanted.
A few months back, I went into my doctor’s office for what I
expected would be a routine checkup. (That sounds like the
start to a sad story but this isn’t.) The nurse came in and,
in a slow clear voice, said, “Since this is your first Medicare
checkup, I have to administer a few tests. I’m going to say
five words and in about 10 minutes, I’ll ask you to say them
I smiled, inwardly crowing, “That’s right in my wheel-
house, my one clear job skill.” Whether it is a predisposi-
tion or a knack picked up along the way, a trial judge has
excellent short-term memory. We listen to testimony and
argument for a few days and then speak authoritatively
on a subject we knew nothing about a few days before. We
specialize in projecting confidence in our wise pronounce-
ments about some arcane topic we have seemingly mastered.
We strive for wisdom, of course, but when that connection is
spotty, the correct usage of key words can paper over a few
Ten minutes later, I tossed right back her “hat, train,
blue, egg, chair.” If she’d served up “estoppel, meretricious,
debentures, asportation, endarterectomy,” I would have done
just as well. Not on her clipboard but in my mind, the box
was ticked for “job skills intact.”
Long-term memory is a different matter.
Details blur and fade, leaving behind a
sense of patterns and trends along with
bulked-up judicial muscles for learning,
analyzing, and deciding.
For 40 years, I’d been in the gravitational
pull of the King County Courthouse. I’d started
in the Prosecutor’s Office in 1977 and spent
most of the next 12 years trying cases to juries.
In 1989, with a boost from then-Governor
Booth Gardner, I moved upstairs, to sit as a
Superior Court judge, where I’d remain until my
retirement. Having seen enough of the criminal
law world, my bench time was spent chiefly in
the civil arena.
And I loved it. My courtroom was the forum
where we solved problems arising in hospital
operating rooms, corporate boardrooms,
private bedrooms, and political backrooms.
Every conceivable kind of person passed
through and none stayed any longer than I
wanted. I treasured my time in the courtroom
for both the daily, real-world challenges and
the rewards it offered. But after years at an often hectic pace, I
discovered that I had stayed precisely as long as I wanted.
I certainly don’t remember all of my cases, though the first
and last stay with me. My first trial was a double pro se dissolu-
tion and in reviewing the court file, my young eagle eye noted
that the couple’s state-of-the-art hot air popcorn popper showed
up on each party’s proposed property division list. This led to my
subsequent coining of the wise maxim: “It’s not always about the
Jumping to my last Friday morning on the bench in 2017, I
heard some summary judgment motions in a typical multi-de-
fendant asbestos case. On the eve of trial, there remained de-
fendants in the case against whom there was neither evidence
Other than bearing the imprint of “primacy and recency”
(memory experts and trial advocacy teachers agree on this),
what these two otherwise forgettable cases have in common is
that both could have benefitted from alternative dispute resolution. In the first, both parties simply needed to have an empathetic ear to listen to each of their legitimate stories before they
could have finality. The last case was in need of someone to take
charge and efficiently separate the wheat from the chaff with
less costly procedural formality and less brinksmanship.
That world of ADR is where my jurisprudential journey was
soon to take me.
But first, on our trip to southeast Asia, we would become