OLYMPIA, Oct. 22.—In this year’s race for attorney general, Democrat Bob Ferguson says he has the kind of courtroom experience that’s the perfect fit for the office – years of work as a “civil litigator” that put Republican opponent Reagan Dunn to shame.
Just one thing: He’s never been the lead attorney at a trial. Whatever that extensive civil experience was, it doesn’t seem to have come in the courtroom.
It’s the crazy backstory behind this year’s race for the state’s top legal office. For months now, the two candidates have been engaged in a battle of the resume, arguing which of them has the courtroom chops that best qualify them for the job. Dunn talks about putting criminals behind bars as a federal prosecutor. And Ferguson says it just doesn’t matter. Nearly all the cases handled by the attorney general’s office are civil, not criminal. All things being even, Ferguson says his 4 ½ years of civil experience at one of Seattle’s top law firms is much more on-point. It is an argument that seems to have been taken largely at face value, sort of a replay of campaigns gone by.
Except – well, maybe things are a little less even than they sound. Dunn can point to civil experience he says is similar and arguably more extensive. And while Ferguson says he has argued motions in courtrooms “from Seattle to Goldendale,” court docket records and statements made on the campaign trail establish that Ferguson never occupied the first chair at a trial. Maybe he wrote briefs and maybe he filed motions as one of the gray-pinstriped crowd at Preston, Gates & Ellis, but Seattle attorney William Fligeltaub says nobody seems to remember Ferguson in the courtroom. “I’ve checked with a lot of people who have known Ferguson over the years,” said Fligeltaub, who is supporting Dunn in this year’s campaign. “Nobody, no one, can recall him doing any litigation. So if the docket shows that he has done a motion or a couple of motions, then that is fine, he should get credit for that. But doing a couple of motions or even being second chair in a case doesn’t really mean that you have had trial experience.”
All About the C.V.
Courtroom experience probably wouldn’t be such a big deal in this year’s race if both candidates weren’t raising the issue themselves. In this state you don’t often see the attorney general in court. Many of the duties are managerial – the office is essentially the state’s largest law firm, employing 550 lawyers who do the legal work for state agencies. The biggest decisions are essentially political, involving high-level legal strategies, decisions about legislation, and the state’s positions on such matters as national health care reform, tort reform and property rights – just to name a few of the hot-button topics of recent years. An argument might even be made that courtroom experience isn’t a prerequisite. McKenna, leaving this year after two terms to run for governor, was a corporate lawyer with little courtroom experience before he entered the political arena, yet he wound up arguing three cases personally before the U.S. Supreme Court and went three for three.
Nevertheless, whenever Dunn and Ferguson appear together onstage, the argument has been about experience. So there hangs the tale. Both have sat on the King County Council for years, Ferguson since 2003 and Dunn since 2005, and both are forced to dig into the past and talk about the early years of their careers. So Dunn, 41, tells of his record prosecuting federal crimes in Washington D.C., Florida and the western district of Washington – some 65-odd cases ranging from narcotics manufacturing to bank fraud. And Ferguson, 47, raises the same argument McKenna did in 2008 when he faced former Pierce County prosecutor John Ladenburg: Hardly any of the work of the attorney general’s office involves criminal prosecution. Ferguson says his decade-old civil experience gives him the edge.
“Over 90 percent of the work that is done in the office of attorney general is civil in nature – that is what it is,” Ferguson said during a debate last month in Seattle. “Reagan, you have great prosecutorial experience; you’re just running for the wrong job. You should be running for prosecuting attorney, not attorney general.”
Never the Lead at Trial
Here’s the hitch. For lawyers, looking up docket records is second-nature, just about the easiest thing they do. So naturally you’d think they might check. And what those records show about courtroom experience is a bit sketchy:
– Ferguson appeared in federal court only once to represent a client in front of a judge, and the case never went to trial or discovery.
– Ferguson was listed as lead attorney in just 15 cases in the federal database, most of them patent-infringement cases involving Microsoft, and at least 13 were settled before the case went to trial.
– Ferguson was named as an attorney in only four state civil cases. In one, he was among a group of 22 attorneys; in another, he apparently only supported litigation by writing briefs.
– In King County records, Ferguson was listed as an attorney in only one case.
Queried by Washington State Wire, Ferguson’s campaign declined to answer specific questions about the candidate’s courtroom experience. “It’s a ridiculous charge,” said campaign manager Michael Scott Webb. “Bob’s whole background is way more extensive than Reagan’s.”
But Ferguson himself confirms the key point: He’s never been a lead attorney at trial. The admission came during a debate this month in Yakima, when Dunn asked him about it point-blank in front of a crowd. “I have second-chaired at a trial before and not been a lead attorney at trial,” Ferguson said. “In that practice as a litigator my job [was] to argue motions in court. I have argued motions from King County to Goldendale, and frankly I have far more experience in the courtroom than our attorney general, Rob McKenna, who was a business attorney at his law firm. I have been a lawyer longer than my opponent. I have vastly more experience as a civil litigator, exactly the kind of work that the office of attorney general does. …My legal background is perfectly suited for the overall majority of the kind of work that the office of attorney general does.”
Carried the Briefcase
Dunn winces whenever he hears that Seattle-to-Goldendale line. Any lawyer can make a motion in court and call himself a litigator. Dunn points out he has plenty of civil experience himself – about 25 cases early in his career, as a junior associate at the Bellevue firm of Inslee, Best, Doezie and Ryder, roughly the same number as Ferguson. That includes two cases he took to final adjudication as lead attorney. Next came a series of high-level legal postings at the Department of Justice under the Bush Administration, including senior counsel to the director of the executive office of the U.S. Attorney’s Office. And then came that stint as a federal prosecutor from 2003 to 2005. “Not only have I had about four times the cases in court that Bob has, I have had a much better-rounded civil experience,” Dunn says. “You really can’t compare it to being a junior associate at a large law firm where you are pretty much carrying the briefcase for a more senior attorney.”
It stands to reason that Dunn would have more courtroom experience than Ferguson, Fligeltaub says, because by their nature criminal cases require more courtroom work. And it’s just as easy to see why Ferguson’s courtroom experience would be limited by the fact that he worked at one of the state’s largest firms. But the real question is whether it matters. Fligeltaub argues that it does. An attorney general might not get involved in the intimate details of a case, but he needs to be able to assess the arguments made by his staff, Fligeltaub says. Just as important, “Sometimes a case is resolved through the chemistry of the moment; sometimes it can depend on who the opposing attorney is, who the judge is, how jurors work – and that is something you really only understand through experience.”
But then there’s that nagging detail: McKenna didn’t have much courtroom experience himself. Dunn, a firm McKenna ally, says McKenna had to work hard to learn how to handle himself in court. He says, “I am an attorney general we are not going to have to train.”