2022 September Hearsay

HearSay THE OFFICIAL MAGAZINE OF THE CLARK COUNTY BAR ASSOCIATION

September 2022

December 2019

Meet Clark County’s Newest Rule K-9 Intern

“Been there, done that.”

“Still there, still doing it.”

JESSE JACOBS

DON JACOBS

Injury law in Oregon and Washington Available for consult, association, or referral.

JESSE JACOBS Clark County, WA Bar Association President OTLA Guardian WSAJ Eagle DON JACOBS Trial Lawyer of the Year, Clark County (2015) Past President, Oregon Trial Lawyers Association

Portland 503.222.7757

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Vancouver 360.695.1624

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nwinjurylawcenter.com

The Clark County Bar Association is a professional organization that serves to support our local attorney community through providing education and networking opportunities designed to enhance and foster better relationships within the local legal community.

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September Hearsay Contributors Kristen Arnaud Clark County Prosecuting Attorney’s Office

Kristen Arnaud has been a Deputy Prosecuting Attorney at Clark County Prosecuting Attorney’s Off ice since 2014.

Laura Markee Markee Valuations LLC

Laura Markee is a business appraiser and financial damages expert. She has focused on developing her expertise over the past 20 years.

Whitney Hawke Wheeler Boyd Attorneys at Law

Whitney Hawke‘s practice focuses primarily on Family Law. Whitney earned the Clark County Bar Association’s Trial Attorney of the Year award in 2020.

Meet Minnie, the Prosecutors Newest Hire page 10

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Hi, I’m New Here! page 12

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Summer is closing out on a hot-streak and so is the 2021-22 year for the Clark County Bar Association. We’ve bowled with the Judges in June. Soiree’d the Summer away in July. Golfed again in August, and we’re seeing the return of “Swinging with the Seniors” (aka the Seniors v. Young Lawyers Softball Tournament) in September.

It’s almost hard to imagine we were still contemplating who had the best Zoom background just earlier this year. Quite a whirlwind term for this President ending his tenure this month.

Lisa Darco does not like attention and I run the risk of this paragraph being cut from the Hearsay.

We are a functioning bar in all years because of Lisa.

I am fond of saying that Lisa “does all the things.”

She is the best of people and the purveyor of every Lebowski themed t-shirt that I wear to our marque CCBA bowling event. Thank you, Lisa.

Looking ahead, the CCBA is in a great place and has an amazing incoming President (subject to membership approval), Christina Phelan. I can’t think of anyone better to lead the CCBA through our first full post-COVID year. Christina has already taken the lead on helping to organize so many of our It would have been difficult to social events (major kudos), so I can only imagine imagine getting to work with a better Board more fun to come. Congrats, to my 50/50 Raffle of Trustees. We often use the phrase that Partner. we are a “working board.” Each Trustee Me? I’m going to go back to reading this commits to sitting on at least one committee book to my 18 month old daughter. Objectively and reporting back to the Board as a the cutest kid in the business. whole every month. Our Trustees Erica Aquadro, Deb Wechselblatt and Whitney Hawke continue to go above and beyond in advancing our mission. They are all rock stars on the committees they serve. Our Treasurer Ben Melnick is always on time with the numbers for our Treasurer’s report.

Definitely not least, Le Ann Larson is, by my final executive decree, Board Secretary for life.

Christie Emrich is great. Her term as President proceeded mine and was the CCBA’s only full Covid year. Christie kept us together and gave me a very solid footing for my term at the helm. As PastPresident, she shouldered way more tasks than required and kept our association keeping on. I’m officially a fan.

by Kristen Armaud

Minnie (full name Minette, but no one calls her that) joined the Clark County Prosecutor’s office as the facility comfort dog for the Clark County Children’s Justice Center (“CJC”) in May 2018. She came to CJC from the Canine Companions for Independence (www.cci.org).

Canine Companions breeds, raises and expertly trains assistance dogs in over 40 commands designed to assist people with disabilities or to motivate and inspire clients with special needs.

As a working facility dog, Minnie’s primary duty is to provide comfort to the children who come to CJC at any stage in the process. Children come to CJC because they have been identified as possible victims or witnesses to a crime. Often children can experience a lot of anxiety or uneasiness when trying to discuss the events that brought them to CJC. Having a friendly and calming canine presence in the room can help ease some of that discomfort.

In order to be that presence, Minnie received significant training to ensure that she is not a distraction to the children or to the process. She has a specific set of commands that allow her to interact with children in a calm and appropriate way. With her training and her commands, she knows when she’s on the job, who she is there to work with, and where she needs to be to do her work. Her presence is immensely

helpful to children who are navigating very difficult and uncomfortable situations, and the children often mention how much they enjoyed her presence. She’s even been known to receive fan mail in the way of pictures or thank you cards.

Her job involves sitting with a child to provide comfort during forensic interviews, being a friendly face in the room during meetings with attorneys as the case moves forward, waiting in the courthouse with the child before testimony, and sometimes even sitting with the child in the witness box. A typical day on the job could involve any combination of those duties on multiple cases. She’s even got her own Outlook calendar to manage her appointments and make sure she is on time.

She’s got a strict diet and exercise regime to keep her in her best shape, and she can often be sighted walking around the Courthouse or Downtown Vancouver. If you see her and she’s wearing her blue vest, she’s on duty and will stay focused on her job. If she doesn’t have her vest on, you can ask her handler if it would be ok to say hello. (Just be prepared for some shedding if you do). When she has downtime between interviews or court, you can usually find her catching up on her beauty rest in her the office of her primary handler, Erik Podhora.

Her hobbies include lengthy naps, getting scratches from her adoring fans, and a good round of afternoon zoomies in the hallways of CJC.

Congratulations to our 2021 volunteers of the year. . .

Josh Volvovic Marlene Hansen Thank you for all that you do! We couldn't run our program without our 11 amazing volunteers.

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A Legacy Worth More than $12 million Written by Laura Markee, CFA, ASA

with significant editorial and research assistance provided by Jasmine Morgan.

Introduction In every business valuation engagement, it is essential to define the standard of value. As it is often said, “beauty is in the eye of the beholder,” so it is true that the value of a business depends on one’s perspective and what definition is being applied.

In most cases, business appraisers are asked to determine fair market value, which is defined by the American Society of Appraisers as follows: “The price, expressed in terms of cash equivalents, at which property would change hands between a hypothetical willing and able buyer and a hypothetical willing and able seller, acting at arm’s length in an open and unrestricted market, when neither is under compulsion to buy or sell and when both have reasonable knowledge of the relevant facts.”

Even though fair market value most commonly used in business valuation engagement, it is not the only definition of value. In some instances, strategic value1 which is the value “to a particular buyer” is needed. In a bankruptcy matter, it may be that there needs to be a determination of “liquidation value.” In a shareholder dispute, the definition of value may be “fair value” which is defined by state statute and in a marital dissolution matter, the definition of value will depend on the particular jurisdiction.

The purpose of this article is to educate attorneys on the importance of understanding the difference between fair market value and strategic value.

Case Study A business owner, who we will call Raymond Porter, is an energetic gentleman in his 70s who owns Porter Materials, Inc. The company manufactures and sells building materials including doors, windows, molding, hardware, and custom stair systems. It also provides in-house milling services, pre-finish work, and project planning assistance. Porter Materials is located south of Seattle and its customers are primarily residential builders.

Mr. Porter was working with his estate planning attorney who recommended that he obtain an appraisal of his business. He contacted our office, and we decided on a date to meet at his facility, which would provide an opportunity to further gather information, view the premises and understand how the business operates.

At the meeting, Mr. Porter gave a full tour of his manufacturing operation, which included three large warehouses on a 12-acre lot, outfitted with state-of-the-art equipment.

Porter Materials had over 160 employees. In the main office there were plaques on the wall showing the tenure of many key employees, some of whom had been there for over 20, 30 and even 40 years.

Four of Mr. Porter’s sons worked in the business, with his eldest filling the role of Chief Financial Officer.

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Source: American Society of Appraisers, ASA Business Valuation Standards.

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We met in the main conference room where Mr. Porter told me the history of his business. He founded the company with a business partner in 1971, at 21 years old. In the early 1980s, he bought out his partner and remained the sole owner up to the present.

Porter Materials was located on real estate which was not held inside the company, but rather in a separate family-owned limited liability company. Over the several years prior to our meeting, Mr. Porter had achieved many of his estate planning objectives by gifting minority interests in the real estate holding company to his sons.

In order to complete his estate plan, he needed to know the value of Porter Materials. After deciding to hire our firm, we agreed on a timeline, cost and the scope of the project. Specifically, we agreed that he needed to know the fair market value of his business.

A few weeks later, I completed the analysis and sent off a draft report that reflected a fair market value conclusion of $7.5 million.

Upon receipt of the draft, Mr. Porter called to convey his disappointment in the report and the conclusion of value. I apologized for not meeting his expectations and began to explain my rationale when he interrupted me to say, “I think this business is worth $10 million.”

By the end of our discussion, Mr. Porter’s tone turned more positive, as he realized that the valuation was beneficial because he now understood how his business would be valued upon his death for his estate. We then discussed specific steps that he could take to increase cash flow, and thereby the value of the business.

A period of time went by, perhaps a year, before Mr. Porter reached out again, asking to meet in person to share exciting news.

He had been approached by a buyer, who offered him $11 million for Porter Materials. He grinned and said, “see, I told you it was worth more than $7.5 million.” He explained to me that the buyer was based in Philadelphia, a company that served similar customers but was looking to expand and in order to do that, would need a foothold on the West Coast.

He described how he had been courted by the buyers which included being flown to Las Vegas in a Learjet (even showing me the pictures). He was blown away by the whole experience, excited to complete the sale and achieve his financial goals. Everything was moving along, documents had been signed, and they had agreed to a closing date. In addition, he would be required to sign a two-year employment agreement.

Only two months away from closing, the buyers approached Mr. Porter with one last change to the terms, something they thought was insignificant. The initial purchase agreement allowed for all of his staff to stay on for three years. However, the buyers now wanted to change this term to six months following closing.

Mr. Porter pushed back, explaining to the buyers that his staff had worked for his company for decades.

You are asking me to stay on for two years, but six months into the sale, my loyal employees will lose their jobs? I will have to sit in my office and watch them escorted out the door without a thing I can do about it?

He refused to agree to these terms.

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The buyers countered with an additional $1 million on the selling price. Mr. Porter refused to budge and the deal fell apart.

Conclusion This story exemplifies the difference between fair market value and strategic value.

When the word “value” is used, many assume that the definition is obvious, however, it is not that simple.2 The standard of value holds a specific purpose in each business valuation. To achieve the objectives for a particular client, it is crucial to distinguish the various concepts of value that can be used in the appraisal of a company. These concepts are dependent on many factors and can vary drastically depending on the perspective of the parties involved.

Financial buyers will search a variety of industries for companies with significant growth opportunities that are likely to generate large financial returns within a five-to-seven-year period.3 These investors will typically pay fair market value for the investment and, once their objectives are achieved, the next step is usually to sell the company. A seller that is looking to cash out from the sale of their business, while remaining involved in the operations for a period of time, would ideally sell to a financial buyer.

In contrast, a strategic buyer will seek opportunities to purchase companies that will allow improvement to its existing business operations, by adding new products and services, removing redundant employees, or capitalizing on opportunities specific to their operations. As a result of the synergies the buyer expects to generate from a transaction, strategic buyers are typically willing to pay a premium over fair market value.

The buyers in this situation were looking to make a strategic purchase and willing to add $1 million to the initial offer to ensure that the purchase would go through.

In the end, Mr. Porter recognized his life’s work and values were more important than money. He chose his legacy over the $12 million offer. He promoted his eldest son to Chief Executive Officer, ensuring his business would be passed onto the next generation and also retain its employees.

The answer to what a business is worth is complex. The value of a business in an estate planning context might be quite different than the value of the same business in a marital dissolution or in a sale. Attorneys should engage a business appraiser who has the expertise to not only provide a well-supported opinion of value, but is also able to advise the parties on the appropriate definition to apply in a particular legal matter.

Do you have a client who is need of business valuation expertise? Please contact us at 360-6010713, or at info@Markeevaluations.com.

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A Reviewer’s Handbook to Business Valuation, Written by L. Paul Hood, Jr. and Timothy R. Lee

Strategic vs Financial Buyer, Corporate Finance Institute, https://corporatefinanceinstitute.com/ resources/knowledge/deals/strategic-buyer-vs-financial-buyer/ 3

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Super Lawyers Honoree

2018–2022

TOP 10

Super Lawyers Honoree 2017–2022 Super Lawyers Honoree 2001–2022

MASTERS LAW GROUP PLLC

Super Lawyers Honoree 2022

Young Lawyers Section - Happiest of Hours The Young Lawyers Section (YLS) had its monthly Happy Hour at Thirsty Sasquatch on August 17, 2022. The group meets each month at an establishment in the Downtown area to mingle with other young lawyers in Clark County. The YLS is planning several events for the fall months. We are looking forward to getting to know new members in our legal community. Please join us for our September Happy Hour that will take place after the swearing in ceremony on September 29, 2022 at 5:00 p.m. at Heathen Brewing.

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TRUEBLOOD et al v. WA STATE DSHS SETTLEMENT AGREEMENT

WEBINAR

Wednesday 21 September Time Noon-1:00PM

Learn about options for out of custody restoration & how the Trueblood settlement impacts attorneys and judicial officers in Southwest Washington.

CLEs available to attendees.

Questions for the presenters?

Submit them prior to the webinar to ami.hanna@southwestach. org.

Zoom Link 25

Clark County Bar Association Minutes for the CCBA Board of Trustees Meeting August 2, 2022

Minutes for the CCBA Board of Trustees Meeting August 2, 2022; hybrid meeting in person and via Zoom Called to order 12:07 p.m. Jacobs, Phelan, Melnick, Larson, Aquadro, Hawke, Emrich and Executive Director Darco July 2022 board meeting minutes: Motion to Approve (Aquadro/Phelan) Approved Treasurer’s Report (Melnick): Reviewed financial reports for July 2022; We are now dipping into reserves. The Summer Soiree was revenue positive – Thank you sponsors!

Ongoing Action Items Committee Reports: Hearsay Committee: (Hawke) no updates...great articles are in the works Social Committee:(Phelan) The Summer Soiree was a blast. If you missed it, you missed out. Next up is the Jim Mayhew Golf Tournament and the Young Lawyers v. Old Lawyers softball game. The incoming Phelan Administration will make sure there will be plenty more fun planned for the upcoming year so stay tuned.

CLE Committee: (Aquadro) they are working to expand the committee and plan coming CLEs. DEI Committee:(Aquadro) The committee is working to get a Street Law program started at the beginning of the school year. The David Hoffman CLE will be 10/21/22 and registration will open soon. Next committee meeting is 8/22/22.

Membership Committee (Darco) this committee needs a chairperson….maybe the new trustee will take this on.

Previous Action Items: Bench Bar Committees/Court Eval (Jacobs) Superior Court will have a listening session on 8/11/22.

The Superior Court Bench/Bar meeting for July was canceled.

CCBA Judicial Evaluation (Jacobs) Subcommittee to evaluate our bar poll will meet in the fall Annual Meeting (Darco) Will be held September 12th in person at the Red Cross Building (just like old times B.C.) Current Action Items Tiered Membership: Judicial Officers (Jacobs) Board reviewed draft letter to judicial officers which gives option of making a donation to the CCBA for membership scholarships and CLEs, and to improve community outreach. Motion to Approve Letter (Larson/Aquadro) Approved FYI Upcoming Events: Golf (August 31), Softball (September 11), Annual Meeting (September 12), VLP Battle of the Bands (September 22) Adjourned 12:53 26

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Clark County Superior Court Bench Bar Committee Meeting August 9, 2022

Persons in attendance: Nicholas Alexander (nick@vancouverwillsandtrusts.com), Curtis Welch (cwelch@ sussmanshank.com) Le Ann Larson (LeAnn.Larson@clark.wa.gov) Matt Kimball (Matthew.Kimball@clark. wa.gov) Leslie Lopez (Leslie.Lopez@clark.wa.gov) Dan Lloyd (Dan.Lloyd@cityofvancouver.us) Anna Klein (Anna.Klein@clark.wa.gov) Judge Fairgrieve (John.Fairgrieve@clark.wa.gov) and Judge Sheldrick (Emily.Sheldrick@clark.wa.gov) If you have matters that you would like to bring to the attention of the Bench/Bar, you are welcome to contact the above-mentioned members of the committee.

I. OLD BUSINESS: No old business to report.

II. NEW BUSINESS: Judge Fairgrieve: Consultants report has been released. Court held vote and as accepted some of the recommendations – which are identified in the meeting minutes notes toward the end of the report. We are meeting in committees to talk about the recommendations, and for implementation of changes –Target date of Jan 21, 2023.

There is a lot of work to be done. I would suggest people look at recommendations and share feelings/thoughts with us. Can contact me, or Ms. Stone, and she can push info into the right direction. Nuts and bolts for implementing can be complicated. Big opportunity for changes to occur so make sure that thoughts and recommendations are heard.

Judge Sheldrick: CCBA listening session August 11 to ask questions/listen to consultant’s recommendations.

- We decided on split on civil and criminal judges. Myself, Judge Retsinas and Judge Vanderwood will be the dedicated Civil. 3-year rotation, which is staggered so not every judge will be coming off their rotation at the same time. Family law division will remain as-is. Civil division has already started to meet. UD docket will stay with me Thursday afternoons.

Probate/guardianship judge will remain with Judge Retsinas. Looking at civil motion week (two weeks trial and one-week motions) and will be back-up for criminal trials, as they have the priority. Looking at other jurisdictions and feedback from the bar. For any adoption of new civil or criminal bench procedure, entire bench needs to approve.

Would there be regular civil dockets?

Exactly what we are trying to figure out.

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Judge Sheldrick: We are also working on forms; Sept 1st go live – on the website.

Superior Court will be engaging in meetings with stakeholders on implementing the recommendations adopted by the bench. If attorneys are interested in joining these meetings are encouraged to reach out to Superior Court. Information on how to express an interest in being part of this discussion will be available on the Superior Court website starting week of August 15th.

Curt Welch: Question about OnBase and Clerk’s phone hours.

Judge Sheldrick: Was told it was on hold (OnBase). Scott Weber has told me training is in the works for attorneys. No date when it will go live.

Le Ann Larson: Recent changes in pattern forms for Child Support, and other forms. I particularly noted that in the modification petitions and order they added an incremental decrease section, in addition to the incremental increase section that was already there.

Family Law practitioners should be using the updated forms. DSHS have guardian GAL contracts and do not have many people that do that work. Often in parentages we need to appoint a GAL. The State just increased rate to $125/ hour for attorneys, and $100/ hour for non-attorneys. Appear virtually so not in-person in court if that is a hurdle.

Anna Klein: The Prosecutor’s Office is hiring and contact Anna Klein if interested.

MEETING ADORNED 12:27 pm.

Respectfully Submitted, Nicholas Alexander Accounting for

Conservatorships Trusts Estates

Cynthia V. Bradley (626) 795-5441 auc476@yahoo.com

Local Experience ~ Local References

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Clark County District Court Bench Bar Committee Meeting August 17, 2022

Present: Judge Kristen Parcher, Judge Abbie Bartlett, Court Administrator Bryan Farrell, Deputy Court Administrator Anya Crossland, Katie Sinclair, Taylor Knight, Thomas Foley, Don Esau, Roger Priest Updates: Bryan Farrell Community Courts will be launching end of Oct/Nov with Commissioner George presiding. Court will be held off site at Recovery Café, Friday mornings at 9:00 am. Policies and procedures have been finalized. It’s purpose is to be separate from therapeutic courts and be a livability program.

It will be low level crimes. The program will have a lot of resources and services to help clients.

If they finish the program successfully, the case will be dismissed. An officer can refer them to the program as well as an attorney. A more in-depth update will happen in September.

Judge Bartlett DEI Council -- District Court has an employee led DEI council of about 18. More information about this can be found on the District Court website. We meet monthly and the subgroups also meet monthly. The subgroups are as follows: Interpreter services – reviewing forms, signage, victim’s panel, and chemical dependency evaluations to provide more translated documents in languages other than English Trainings – for staff and bench with a focus on implicit and explicit bias, gender identity, mental health and houselessness Systemic Racism – Walking through the case from beginning to end and see where there are biases and how we can do better Trueblood Task Force – Looking for a date that a training could be held for one hour during lunch time. Training would include what does restoration out of custody and in-custody look like. If there are dates that should be avoided, please contact Judge Bartlett. Will likely have CLE credits available.

Judge Parcher OnBase is not up and going as planned due to vendor issues. Please continue to look at the Clark County District Court Website for updates on implementation and additional training videos.

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CCBA Annual Meeting – September 12, Judge Osler will be presenting on state of District Court.

Afterwards, 1:00-2:00 CLE will be available, A View From the Bench. Judge Smith and a Superior Court judge will be presenting.

Supreme Court – currently there are state-wide work groups regarding remote hearings. There will likely be new recommendations and court rules regarding remote hearings. Supreme Court will not be lifting the current COVID order allowing remote hearings until new court rules are implemented.

Forms – Please remember to use the current AOC or DC Forms The new AOC NC 02.100 form is available. It combines DV and Non-DV Anti-Harassment orders with the same language. Please review and give KLP your feedback. One suggestion that KLP had was that at the top of the form it should state whether it is DV or Non DV. Please email KLP with any Bench Bar Meeting topics.

Sinclair -- State Hoping to make a modification on the form so jail does not interpret mandatory minimums.

Currently on the MOD it says that 2 days of jail of which 2 days are mandatory. Hoping that it could state hours. Until it is resolved, attorneys can request that hours are mentioned in the MOD. Pro se pretrial – Is it possible to use a small courtroom on Tuesdays so prosecutors can meet with anyone that wants to discuss their case? It doesn’t matter which docket they are coming from, and it doesn’t have be scheduled, it is more a drop in timeframe. Anya to review.

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