New DOL Rule Significantly Expands the Number of Employees Entitled to Overtime Pay

The U.S. Department of Labor (DOL) issued a new rule on overtime pay. Starting in 2020, employers must pay overtime to employees making less than $35,568 annually ($684.00 per week).

Background Note: The law refers to “non-exempt” as employees entitled to overtime pay and “exempt” as salaried employees exempt from overtime pay. The test for whether an employee is exempt from overtime depends on both salary and job duties. This new rule increases the salary threshold for exempt employees from $23,660 to $35,568. This new rule does not, however, change the existing rules regarding job duties. Exempt status is generally limited to employees performing white-collar job duties.

There are additional exclusions from overtime pay in Washington State, most notably, for agricultural workers employed on farms or ranches. This new DOL rule does not impact those employees excluded from overtime because of an unrelated state law exemption. Please contact an attorney at JDSA to discuss the impending Washington Supreme Court decision on whether the state’s agricultural overtime exemption is unconstitutional. Jose Martinez-Cuevas, et al. v. DeRuyter Brothers Dairy, Inc. et al., Yakima County Superior Court No. 16-2-03417-8, review granted, Washington State Supreme Court No. 96267-7 (oral argument scheduled for Oct. 24, 2019).

companies Should Consider the Following:

As a result of this rule change, companies with employees identified as exempt under the old law, and making between $23,660 and $35,568 a year, will want to weigh the cost of increasing salaries above this new threshold verses paying overtime.

Employers affected by this rule change should also consider the following:

  • Whether to train reclassified employees on timekeeping policies and practices.

  • Whether to implement or expand training on overtime approval policies.

  • Whether to revise benefits or perks which only apply to exempt employees.

  • Whether to restrict off-hour work related emailing/texting, to avoid incurring unintended overtime hours.

  • Whether to train reclassified employees on rest and meal periods.

(In the list above, “reclassified employees” refers to those employees which are currently exempt, but make between $23,660 and $35,568 a year, and as a result, in 2020, will be reclassified as non-exempt and entitled to overtime pay.)

In addition, under the new rule, nondiscretionary bonuses (including commissions) may be counted towards the salary threshold. Such bonuses paid on an annual or more frequent basis may satisfy up to 10 percent of the standard exempt salary level. The new rule also raises the threshold for highly compensated employees from $100,000 a year to $107,432 (this increase is about $40,000 less than what DOL initially proposed).

To learn more about this change or how to prepare, contact an attorney at JDSA Law.

First Vaping Lawsuit Filed in Washington State

As reported in an article in the Seattle Times, the first vaping lawsuit was filed in Washington state.

A Puyallup Tribal Policy officer who fell ill with lipoid pneumonia after vaping cannabis oil, is suing distributors of vape cartridges, along with cannabis producers and processors. Named defendants include CannaBrand Solutions in Everett, Conscious Cannabis in Spokane Valley, Rainbow’s Aloft in Colville, Leafwerx in Wenatchee, MFused in Spokane, and Jane’s Garden in Lake Stevens.

As of September 17, 530 cases of lung injuries associated with e-cigarettes or vaping products have been reported to the Centers for Disease Control and Prevention (CDC), with patients in 38 states, including Washington.

JDSA Law is committed to following these developments and will keep you updated as events and details continue to unfold.

FAQs About Amicus Briefs

An amicus curiae, or “friend of the court” brief, is submitted to the court when an individual or group has an interest in a particular case, even though they are not a party. Amicus briefs may be filed by consumer protection groups, non-profits, private corporations, trade associations, government agencies, among others, and are frequently seen in high-profile or high-stakes cases. In some cases, multiple groups will sign a single amicus brief. The U.S. Supreme Court receives hundreds of amicus briefs each year. One recent Supreme Court case, involving the marriage equality act, set records for the most amicus briefs (147) and the most signatories on a single amicus brief (over 200,000). Supreme Court Justice Breyer has stated that amicus briefs “play an important role in educating judges on potentially relevant technical matters, helping to make us not experts but educated lay persons and thereby helping to improve the quality of our decisions.” Justice Alito has concurred, observing that, “an amicus may provide important assistance to the court by collecting background or factual references that merit judicial notice.” From influencing the outcome of a case to educating the court on an issue of national or wide-ranging importance, there are many reasons to consider submitting an amicus brief. Here are the basics.

 
In filing an amicus brief you are attempting to influence the outcome of the litigation by offering what should be a unique perspective on the issue at hand.
 
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WHY SHOULD I FILE AN AMICUS BRIEF?

The most common reason to submit an amicus brief in a case is because the court’s disposition of the case will affect you or the members of your group. In filing an amicus brief you are attempting to influence the outcome of the litigation by offering what should be a unique perspective on the issue at hand. Amicus briefs also provide an opportunity for experts, such as academics, non-profits, or think tanks, to educate the court on a particular issue.

Amicus briefs have become a regular part of the litigation process and can be viewed as an exercise of the constitutional right to freedom of speech and petition. Indeed, many social movements take advantage of the opportunity to submit amicus briefs to send a message to the courts and to the public about their goals and views, without having to initiate lawsuits themselves.

CAN I FILE AN AMICUS BRIEF IN WASHINGTON STATE COURT?

The Washington State Rules of Appellate Procedure allow the filing of amicus briefs if all parties to the case consent to the filing or if the filing of the brief would “assist” the appellate court. An amicus brief should not be a “me too” brief that simply duplicates the brief of one of the parties. As the oft-quoted Justice Posner has stated, the criterion for deciding whether to permit the filing of an amicus brief should be whether it will “assist the judges by presenting ideas, arguments, theories, insights, facts, or data that are not to be found in the parties’ briefs.” This criterion is more likely to be satisfied in cases in which:

  • a party is inadequately represented;

  • the would-be amicus has a direct interest in another case that may be materially affected by a decision in this case; or

  • the amicus has a unique perspective or specific information that can assist the court beyond what the parties can provide

If you have an interest in the outcome of a pending appeal and believe you have expertise or information that the parties do not possess and that could assist the court in making its determination, you should consider submitting an amicus brief. The parties to the case can consent to the filing of the amicus brief; otherwise, you must seek the court’s permission.

HOW DO I FILE AN AMICUS BRIEF?

To file an amicus brief, you must submit a request by motion. The motion must include the following:

  • statement of your interest in the case and the person or group you represent;

  • statement of your familiarity with the issues involved in the review and with the scope of the argument to be presented;

  • statement of the specific issues to which your brief will be addressed; and

  • statement of your reason for believing that additional argument is necessary on these specific issues.

A copy of your proposed amicus brief will be included with the motion. The parties to the case may object to a motion to file an amicus curiae brief. The court will then rule on the motion and decide whether or not to allow your amicus brief to be filed.

WHEN DO I FILE AN AMICUS BRIEF?

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Washington Rules of Appellate Procedure require amicus briefs to be submitted to the Supreme Court (the state’s highest court) no later than 45 days before oral argument or consideration of the merits, if no oral argument is set. At the Court of Appeals level, amicus briefs are due no later than 45 days after the filing of the brief in opposition to the appeal (known as the “respondent’s brief”).

HOW I CAN HELP YOU

If you are interested in submitting an amicus brief in an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an amicus brief.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

Significant Changes to Salary Information Exchange Under Washington Law

On July 28, 2019, changes to Washington’s Equal Pay and Opportunities Act took effect, largely prohibiting employers from requesting wage or salary history from job applicants or the applicant’s previous employer. The Equal Pay and Opportunities Act also provides that employers may not prohibit employees from disclosing or discussing their wages and—in some circumstances—the wages of other employees. Washington is the third west coast state to pass this type of legislation, joining both Oregon and California. These legal changes are intended to help ensure equal pay for equal work.

What This Means for Employers:

  • Employers cannot seek wage or salary history of an applicant. An employer may confirm an applicant's salary after the employer negotiates and makes an offer of employment, including pay, to the applicant. Applicants can voluntarily disclose their wage or salary history to prospective employers.

  • Employers cannot require that an applicant's prior wage or salary history meet certain criteria.

  • Employers with 15 or more employees must provide an applicant who is offered a position with the minimum wage or salary of the position they are applying for, if requested.

  • Employers with 15 or more employees must provide an employee who is offered an internal transfer or promotion with the wage scale or salary range of their new position if requested. If a wage scale or salary range does not exist, the employer must provide the minimum wage or salary expectation set by the employer prior to posting the position, making a position transfer, or making the promotion.

Immediate Actions Employers Should Take:

  • Review job applications and other hiring documentation and remove any requests for or references to job applicants' salary history.

  • Be prepared to provide specific information about the minimum wages or salaries, wage scales or salary ranges to applicants and employees upon request

To learn more about this change or how to prepare, contact an attorney at JDSA Law.

How An Appellate Lawyer Can Help You

Mounting an appeal can seem like a daunting task for a trial attorney. It is a time-consuming process that requires a very different set of skills than trying a case does. The goal is no longer to convince a lay jury that your version of the facts is the right one. Your audience is now a panel of knowledgeable, sophisticated appellate judges who expect a detailed analysis of the law and facts presented in a concise, well-written brief, and who may grill you during oral argument on a nuanced point of appellate law that you may be ill-equipped to address.

There are many ways that an appellate lawyer can help you. An appellate lawyer comes into the case with no preconceived notions, and can therefore provide an objective assessment of the merits of your case and help you to identify potential winning arguments, including ones that you might not have even considered. In addition, an appellate lawyer is well-versed on appellate procedure, applicable standards of review, and the expectations of appellate judges. The unique knowledge and experience of an appellate lawyer can be a valuable asset to you and your client. Most important, an appellate lawyer is a skilled writer and researcher who can prepare a well-written brief setting forth your best appellate arguments in a clear and concise presentation.

 
Appellate lawyers bring a fresh perspective to a case, which can be a useful antidote to the tunnel vision you are likely experiencing, having lived through your case for many months or even years.
 
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AN APPELLATE LAWYER CAN PROVIDE AN OBJECTIVE ASSESSMENT

Appellate lawyers bring a fresh perspective to a case, which can be a useful antidote to the tunnel vision you are likely experiencing, having lived through your case for many months or even years. Appellate lawyers are often able to find potential issues in the record that trial attorneys are unable to see because they are too close to or too vested in the case or they may not even know what to look for. Moreover, you and your client will undoubtedly receive a more objective assessment of the merits of an appeal from an appellate attorney who has not lived through the case like you have.

Being able to identify legal issues in a trial record that judges may be particularly interested in is an important skill of an appellate attorney. Indeed, during oral argument judges sometimes focus on what might seem to trial lawyers as obscure or irrelevant legal theories. Experienced appellate lawyers are uniquely qualified to respond to any and every inquiry, however esoteric the point may be.

AN APPELLATE LAWYER IS WELL-VERSED ON APPELLATE PROCEDURE

Appellate courts follow an entirely different set of procedural rules. There are very specific requirements for appellate filings and important deadlines that, if missed, can be fatal to an appeal. Experienced appellate attorneys have been through what is often a lengthy process many times and can walk you and your client through each stage of the appeal, from filing a notice of appeal or notice of discretionary review, to compiling and submitting the record for review, exchanging briefs, and appearing before a panel of judges for oral argument.

Appellate lawyers bring to the table valuable knowledge of the appropriate standard of review, as well as appellate law, both procedural and substantive. They are also familiar with the backgrounds and personalities of the appellate judges who will hear the case, including how they have ruled on cases similar to yours and whether they ask a lot of questions during oral argument. Not having to research all of these matters at the outset of an appeal will save trial attorneys without appellate experience a lot of precious time.

AN APPELLATE LAWYER CAN PREPARE A PERSUASIVE BRIEF

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Many trial lawyers do not consider themselves strong writers. Indeed, a successful trial practice does not rely on the written word, rather it is a trial lawyer’s oratory skills that are paramount. For appellate lawyers, the primary mission is to write a comprehensive brief, setting forth a persuasive legal argument that is well-supported by case law and the applicable statutory or regulatory framework. Thus, experienced appellate lawyers are, first and foremost, skilled writers. They are also adept at mastering the record; researching legal principles, both procedural and substantive; and understanding subtle legal distinctions and emerging legal trends.

Trial lawyers are notoriously busy practitioners, often going from one trial to the next, with court appearances, depositions, discovery, client meetings and travel scheduled in between. This can leave little time for the thoughtful reflection, exhaustive research, and detailed brief writing that effective appellate representation demands. Bringing in appellate counsel to handle the appeal allows trial lawyers to do what they do best, while we can do what we do best as appellate lawyers.

HOW I CAN HELP YOU

If you are considering an appeal on behalf of a client and are interested in an appellate consultation, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State.

Obesity: Now a Protected Impairment Pursuant to Washington Anti-Discrimination Law

On July 11, 2019, the Washington Supreme Court ruled that obesity is now considered a protected class under the Washington Law Against Discrimination (WLAD). In a 7-2 ruling, the high court said obesity is covered by the WLAD, Washington State’s discrimination law that protects individuals with disabilities. The majority held that obesity “is recognized by the medical community as a ‘physiological disorder, or condition'” and is therefore an “impairment” under the WLAD.

While the federal Americans with Disabilities Act (ADA) does not currently treat obesity as an impairment or otherwise protected class, the WLAD offers broader coverage than the ADA so this recent decision may require Washington employers to adjust their personnel practices to ensure compliance.

What Does This Mean for Employers?

Now that the Washington Supreme Court ruled it illegal for employers to refuse to hire someone who is obese if they are otherwise qualified for the job, employers should take the following actions:

  • Hiring Standards: If hiring practices include the use of physical examinations or medical questionnaires, consider discussing with legal counsel how to use an applicant’s ‘weight’ information to determine employment eligibility. If you decide to utilize this type of information, ensure your supervisory and hiring personnel (along with any third-party testing providers) act pursuant to your written instructions, policies, and hiring standards.

  • Policy Review: Review all employment policies, particularly anti-discrimination and hiring qualification policies. Revise your policies, as appropriate, to reflect that obesity is now a protected class under WLAD.

  • Training Materials: Update any training manual or document to include obesity as a protected class and ensure that all supervisory hiring personnel understand what that means. Any employee in a supervisory position should acquaint themselves with this new aspect of the WLAD. This can be a great opportunity to provide a refresher course to supervisory and hiring personnel regarding employee protections under the WLAD.

  • Reasonable Accommodations Practices: If an existing employee or applicant indicates they need to have a reasonable practice accommodation because of this obesity class, be prepared to offer an accommodation if possible. Most importantly, employers must ensure they apply the same standards and policies to all similarly-situated individuals.

This recent decision significantly expands the disability discrimination protections in Washington state. To learn more about this change and what you can do to respond, contact an attorney at JDSA Law.

Top 5 Tips for Effective Oral Argument

You have written a persuasive appellate brief. Months have passed and your case is finally on for oral argument. In the interim you have been busy with other cases and the day-to-day obligations of your law practice, and you may think that re-reading the briefs, skimming the record on appeal, and writing out your argument as a speech is all the preparation you need to deliver a winning presentation to the judges. However, even if you are expecting a “cold bench,” treating oral argument as an afterthought is wasting an important opportunity to convince the court that your client should prevail, especially if one or more judges is on the fence. From thoughtful preparation before the argument to a confident, respectful presentation to the court, here are my top five tips for effective oral argument.

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KNOW THE CASE LAW AND THE RECORD

Before you step into the courtroom, you must know the facts, the law, and your arguments, and you must know them COLD. This will give you confidence, which is especially helpful if you don’t have a lot of experience with oral argument or are prone to nerves. More important, having a solid grasp of the material will free you up to really listen to the judges’ questions and to have a meaningful discussion of the issues in your case. An open mind is key to a successful oral argument.

Don’t forget to shepardize the relevant cases to be sure that between the time you submitted briefs and the date of your argument there have been no changes in the law you are relying on. If there has been a favorable new case, be sure to bring hard copies for each of the judges on the panel, as well as your opposing counsel.

 
The goal is to have a conversation with the judges.
 

PREPARE AN OUTLINE, NOT A SPEECH

While it may be tempting to write out your argument word-for-word, the reality of oral argument, especially with a hot bench, is that the judges are likely to take the argument in an entirely different direction than is set forth in your notes. You do not want to be shuffling papers in a desperate attempt to find an answer to the court’s inquiry. Rigid adherence to an outline will likely result in an ineffective, awkward presentation. The goal is to have a conversation with the judges. Do not try to cover all of the issues in the case; highlight those that are crucial to your client’s success.

The best approach is to prepare and memorize a short introduction, which tells the judges what you asking for on behalf of your client and why you are entitled to it. Provide a roadmap to your argument. That said, be prepared for the possibility that the judges may start to pepper you with questions even before you get through your introduction.

Of course you may get a cold bench in which the judges do not ask a single question. If that happens, you must be prepared to give your argument as a speech. However, do not simply deliver a re-hashing of your brief. Take the opportunity to highlight your strongest arguments and to tell a story. Weave into your argument the idea that you are not only right on the law but are also seeking a just result. Although focused on the legal analysis, the judges are also attuned to fairness considerations and may be persuaded by them in a close case.

 

PRACTICE, PRACTICE, PRACTICE

Whether it is in front of a mirror, your spouse, or, even better, as a moot court exercise with your colleagues, you should practice giving your argument. Brainstorm potential questions. Having briefed the case, you should know exactly where your weaknesses lie. Be prepared for the judges to go directly to the areas you would prefer to avoid, and be ready with a substantive response. Answer the question as directly as possible, with as much qualification as you need to shift the court’s focus back to your position.

Expect the judges to ask you to do any or all of the following during argument:

  • Address hypotheticals

  • Concede obvious points

  • Distinguish cases

  • Respond to intricate statutory or contract construction inquires

  • Discuss broad public policy issues

  • Respond to questions that seem out of left field

You do not want to be surprised during oral argument. Thorough preparation will allow you to respond to anything the judges throw at you, while enabling you to transition easily between the court’s inquiries and the points you want to make during argument.

 
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BE RESPECTFUL OF THE JUDGES THROUGHOUT YOUR ARGUMENT

Always refer to the judges as “your Honor” or “Justice/Judge ______.” Never interrupt or speak over them; never ask them questions, except to clarify one of the court’s inquires. Take your time in responding to questions; it is okay to pause briefly to collect your thoughts. If your allotted time has expired, either stop speaking or request permission from the court to continue speaking. Be sure to end your argument with a clear, concise statement about the specific relief you want and why you are entitled to it.

Be professional toward your adversary as well. You will lose points with the court for personal attacks on opposing counsel or their arguments.

RESEARCH THE JUDGES ON YOUR PANEL

If you know the names of the particular judges who will be hearing your case, it behooves you to research their backgrounds, as well as their jurisprudence. What kind of law did they practice before taking the bench? Do they have political leanings that may inform their position? Have they written opinions on cases that are similar to yours? You will surely get the court’s attention if you support an argument with a reference to an opinion of one of the presiding judges on the very issue.

Keep in mind that you should always look the judges in the eye during oral argument. It really helps to know as much as you can about the people you are talking to and how they are reacting to what you are saying.

How I Can Help

If you are contemplating an appeal following a loss at trial or on a dispositive motion, or need assistance preparing a strong reply brief, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.

To Reply Or Not To Reply: Considerations On Appeal

Appellate procedural rules give the appealing party the option to submit an additional brief after receiving the answering brief of the opposing party. This is a huge opportunity that should not be squandered. The function of the reply brief is simple and very limited: to respond only to the points made in the respondent’s brief. But the rhetorical purpose is much more important: to get the last word! Unfortunately, instead of using the opportunity to make a strong impact on the court by submitting a concise presentation that systematically dismantles the opponent’s arguments, many practitioners submit a reply brief that does nothing more than rehash arguments set forth in the original brief, or worse, tries to introduce new points that should have been introduced initially. Neither will be well-received by the court.

There are many good reasons to submit a reply brief. After all, who doesn’t want to have the last word in an argument? Moreover, the “recency effect,” in which more recent information is often better remembered and given greater weight, is a valid psychological principle. As long as certain do’s and dont’s are kept in mind while preparing a reply, the valuable opportunity to have the last word should not be wasted.

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THE DO’S OF REPLY BRIEFS

Washington Rules of Appellate Procedure state that a reply brief must be “limited to a response to the issues” in the respondent’s brief. Be sure to heed this basic requirement. That said, there is so much that a carefully prepared, well-written reply can accomplish. In some cases, the judges and law clerks who read the briefs will start with the reply. With this in mind, the reply should read like a stand-alone document. It should include the critical facts and the most persuasive legal arguments. It should also tell a story, presenting an overarching theme and tying all the narrative elements (setting, character, plot) together to reach a compelling conclusion: you win.

 
If your reply is nothing more than a rehash of the arguments set forth in your initial brief, the judges may remember it - but not in a good way.
 

Be as concise as possible. Get to the heart of the matter on the first page of your brief, and only include what is necessary to make your point. A short reply tells the court that you are confident about your position.

As soon as the opposing brief is received, you should update your research to see if any new cases have come out since the original filing. If so, the reply is the perfect opportunity to bring new information to the court’s attention. The case must actually be new, in that it came out during the intervening period of time between the filing of appellant’s brief and the filing of the reply. It cannot be “new” in that it was missed during your research the first time. Don’t forget to shepardize the cases you cited in your initial brief to be sure they are still good law.

If the respondent either failed to address any arguments in your opening brief, or even conceded any significant issues, be sure to highlight this in your reply and argue waiver, if applicable. In addition, if respondent cites a case not discussed in the opening brief, and you can argue that it is either not controlling or distinguishable, or respondent makes a misstatement of fact or an irrelevant argument, your reply should highlight these points as well.

Finally, a word about credibility. While the basic purpose of a reply is to address arguments raised in respondent’s brief, keep in mind that a good opening brief anticipates the opponent’s position, addresses them head on, and doesn’t avoid bad facts or law. While this is always a delicate balance for a brief writer (you don’t want to bring up arguments that your opponent might miss), your candor will likely give you credibility with the court.

 

THE DON’TS OF REPLY BRIEFS

First and foremost, do not treat the reply brief as an afterthought. Put as much thought and effort into it as you did with the initial brief. In some ways, the reply is more important than the original filing. It is where your arguments and those of your opponent are viewed side by side, and - if the reply does what it is designed to do - clearly and unequivocally resolves the issues in your favor.

 
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Don’t just give the court a condensed version or executive summary of your opening brief. This just wastes your time, your client’s money, and, most importantly, risks losing the court’s attention and interest in your argument. If your reply is nothing more than a rehash of the arguments set forth in your initial brief, the judges may remember it - but not in a good way. Credibility is extremely important when arguing in the appellate courts. Don’t risk losing your hard-won reputation with lazy briefing!

Do not try to raise arguments in the reply brief that could have been raised in your opening brief. Many attorneys cannot resist the temptation to bring up new points. This is not permitted, and any attempt to sneak in a new issue on reply will likely annoy the judges and result in a finding of waiver. The reason for the no new issues rule is to prevent an appellant from ambushing the respondent in a reply. As with redirect examination, where the scope of questioning is limited to issues brought out in cross-examination, the scope of the reply is limited to new matters raised in respondent’s brief.

The reply should highlight the strength of your case. Present only your most compelling arguments. Including everything but the kitchen sink will not score points with the judges, and you risk diluting your best arguments.

Lastly, don’t file a reply brief just for the sake of filing it. In extremely limited cases, there may be a strategic reason not to submit a reply. For example, the respondent’s brief may be so deficient or incomprehensible that responding to it may give opposing counsel’s arguments more credit than they deserve. But even in this circumstance, filing a reply may allow you to restate the respondent's incomprehensible argument into one that works in your favor!

In the vast majority of cases, and as long as it adheres to the requirements and guidelines outlined above, you should never forego the opportunity to have the last word by filing a reply.

how i can help you

If you are contemplating an appeal following a loss at trial or on a dispositive motion, or need assistance preparing a strong reply brief, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.

Sales Tax Exemption Change for Nonresidents: Effective July 1, 2019

In May of 2019, Governor Jay Inslee signed Senate Bill 5997 into effect, which changes the way Washington businesses handle and collect retail sales tax for nonresidents.

Beginning July 1, 2019, businesses who make retail sales of tangible personal property, digital goods, and digital codes must collect sales tax from all consumers at the point of sale, regardless of residency. Under the prior law, nonresidents were exempt from the sales tax on such items and businesses were not required to collect sales tax from these consumers. Under the new law, the exemption is eliminated and nonresident consumers must pay sales tax at the point of sale, but instead may request a refund from the Department of Revenue once a year for the state portion of the sales tax they paid in the prior year.

Note: Purchases of items and services that are substantially used or consumed within Washington are ineligible for the refund. Additionally, sales tax exemptions on sales of vehicles and trailers, watercraft, and farm machinery or implements have different requirements.

What You Need To Know:

  • Sellers: Beginning July 1, 2019, retailers must collect retail sales tax from nonresidents when the nonresident takes delivery of the merchandise at a Washington location.

  • Buyers: Qualified nonresident consumers must pay retail sales tax at the point of sale in Washington. Retain your receipts and submit an annual refund request with the Department of Revenue beginning January 1, 2020 for a refund of taxes paid on qualifying purchases in the prior year. The refund request must be at least $25.00.

For additional information, refer to the Washington Department of Revenue (DOR) Special Notice or the DOR website.

How to Decide Whether to Appeal a Case

If you have just lost a trial or a motion to dismiss and are contemplating an appeal, there are important considerations for you and your client to keep in mind. From ensuring that you comply with the relevant timeframes and procedures, to understanding the applicable standard of review and evaluating your chances for success, an experienced appellate attorney can guide you through the process.

As soon as the adverse verdict or ruling comes in, the first question to ask is, ‘what is the deadline for bringing an appeal?’ There are various deadlines throughout the appeals process, but the most important deadline is the first one. No later than 30 days after the decision being appealed is filed with the court clerk, a notice of appeal must be filed. With limited exceptions (such as if one of the parties to the case dies), this is a firm deadline and missing it can be fatal to your appeal.

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HOW TO EVALUATE THE VIABILITY OF AN APPEAL

As soon as the 30-day clock starts to run (and likely even before), it is time to think about potential appealable issues and your chances of success on appeal. In some cases, the basis for your appeal will be obvious to you. Maybe the trial court or opposing counsel made a glaring error during the trial. However, in many cases the possible appellate issues will be far less clear. Moreover, as the lawyer who just lived through a trial, you may have tunnel vision, and the best thing you can do for your client is to bring in a fresh set of eyes to evaluate the viability of an appeal. Appellate lawyers bring a new perspective to a case, one informed by experience searching the trial record for any and all potential errors or issues to appeal. They are likely to see things in the record that trial attorneys are unable to see because they are too close to or too vested in the case, and, unlike experienced appellate attorneys, may not even know what to look for when analyzing a record.

In addition to identifying potential appealable issues, another consideration is determining the applicable standard of review. This is the lens through which the lower court’s decision will be viewed by the appellate court to determine its correctness or propriety. There are multiple standards of review, and your likelihood of success may be higher or substantially lower, depending on which standard is applicable. While there is some flexibility within the various standards of review (discussed below), knowing which standard is applicable is a critical consideration in evaluating the viability of your appeal.

 

WHICH STANDARD OF REVIEW APPLIES TO MY APPEAL?

The standard of review the Washington appellate courts will apply to your case will depend on the type of issue you are appealing, including whether your are raising an issue of law or of fact, and whether your appeal involves a decision by an administrative agency.

  • Substantial Evidence Test: In Washington, findings of fact are generally reviewed under the substantial evidence test, which looks at the factual record. However, if the facts are undisputed, the appellate court can apply the de novo standard.

  • De Novo Review: This is what is known as a non-deferential standard of review, in that it does not place weight on the previous court's finding. It involves an independent review of the evidence, and will be applied to issues of law, motions for summary judgment, and, at times, when the case involves mixed issues of law and fact.

  • Abuse of Discretion: This standard will be applied where the conduct of the court proceedings, which is generally left to the trial judge’s discretion, is at issue in the appeal. It governs rulings on most motions, objections, admissibility of evidence, and general conduct issues such as findings of contempt. Washington courts have stated that discretion is abused only where it can be said “no reasonable person would take the view adopted by the trial court.”

  • Arbitrary or Capricious: This standard generally applies to review of administrative decisions.

 

SHOULD I INCLUDE EVERY POSSIBLE ISSUE IN MY APPEAL?

While you may be tempted to include everything but the kitchen sink in your appeal, in the hope that something will resonate with the court, you should resist the temptation. The appellate courts are overburdened, and diluting your strongest arguments with less persuasive or minor issues may lose both the court’s attention and your credibility. Having to consider nondispositive, superfluous issues on appeal is one of the primary complaints from the appellate bench. Focusing on the one or two issues with the highest probability of success is the best approach.

As noted above, questions of law, reviewed on a “de novo” basis are statistically more likely to result in a reversal than issues of fact or court conduct, which will be reviewed under the more deferential “substantial evidence” or “abuse of discretion” tests. Therefore, your strongest appealable issues are often ones involving issues of law, rather than of fact or procedure.

 
Courts do make mistakes, and bringing an appeal may be the only way to correct judicial error. An appellate victory can provide a vindicating and satisfying resolution to your case.
 
 

OTHER CONSIDERATIONS ON APPEAL

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Numerous other considerations factor into deciding whether to appeal. Appealing a case can be costly and time-consuming. In most cases the appellate process takes at least a year, usually more. There is also an emotional and mental toll that you and your client will pay by choosing to continue an already hard-fought, protracted litigation into the appellate courts. And appellate opinions are read by a far larger group than trial court judgments. Are you and your client prepared for the potential extra scrutiny of the facts of your case? These are but a few of the myriad other issues that should factor into any decision to appeal.

However, trial courts do make mistakes, and bringing an appeal may be the only way to correct judicial error. A successful appeal can provide a vindicating and satisfying resolution to your case. Working with an experienced appellate attorney, who can guide you and your client through the maze of appellate considerations, can help transform an adverse decision below into a favorable outcome on appeal.

 

How I Can Help You

If you are considering an appeal in Washington State, I welcome you to contact me. I have extensive experience handling appeals in state and federal courts throughout Washington State and can assist you in preparing an appeal following a loss at trial or on a dispositive motion.

Email H. Lee Lewis or call (509) 662-3685 for an appellate consultation.

The information contained in this blog post is provided for informational purposes only and should not be construed as legal advice on any matter.