Bonaventure wrote: “An artisan is one who aims to produce a work that is beautiful, useful, and enduring; and only when it preserves these three qualities is the work acceptable.”

In an era dominated by the rise and fall of biglaw and big lawsuits, David J. Whedbee aims to practice civil rights law as an artisan. He selects his cases less by calculating the odds of a profitable outcome than by Bonaventure’s three criteria for acceptable work. Whedbee looks for legal beauty in the intricacy and strategy of a case and for moral beauty in its potential to vindicate violated rights. He looks for the usefulness of a case in the ability of a successful suit to empower the impotent, defend the disenfranchised, and speak for the voiceless. And he looks for cases that will endure in their beneficial effects on the lives of his clients and on developing precedent to restrain the abuse of power.

Whedbee’s practice in civil rights, criminal defense, and personal injury at MacDonald Hoague & Bayless in Seattle focuses on cases of police misconduct, wrongful incar­ceration, First Amendment claims, and unlawful discrimination based on race and disability. Between judicial clerkships to the Honorable Helen G. Berrigan, Eastern District of Louisiana, and to the Honorable Ronald M. Gould, Ninth Circuit Court of Appeals, he worked as a contract attorney for Gordon Thomas Honeywell, litigating clergy sex abuse claims, and he served as a Special Assistant to the General Counsel of Governor Christine O. Gregoire. He is a board member of the ACLU of Washington and a member of the Innocence Project Northwest and the National Police Accountability Project. He took his JD from the University of Washington, MSc from The London School of Economics and Political Science (LSE), and BA magna cum laude from Pomona College, where he was awarded an NCAA postgraduate scholarship.

Cosslett: Where did you grow up?

Whedbee: I grew up in Southern California . My parents were educators. My mother was a principal in the public schools and my father was a college professor and Old Testament scholar. I had a stepdad who was a history teacher and some stepsiblings, but my mother and her second husband got divorced. We all remain a more or less happy, extended family. It’s very Californian.

Cosslett: Why did you go to Pomona for undergrad? Did you have a career plan?

Whedbee: My dad taught at Pomona , so it was a good deal financially. I really liked the seminar atmosphere and had a fantastic academic experience there. At the time, I was interested in literary criticism and historiography and, for better or worse, was exposed to a lot of the postmodern, poststructuralist thinkers. I was considering either going into academics or some kind of journalism.

Cosslett: You took some time off between college and law school . What did you do right after college?

Whedbee: I moved to Seattle and was a DJ for an alternative music station up here. Then I got into teaching English as a second language and the teaching experience sparked my interest in the political/social dimensions of immigration. I was exposed to Ukrainians and Brazilians and Laotians, and I became more interested in their stories—of why they came to America and the difficulties they faced—than in teaching English grammar. For a short time, I went to work for a congressman up here, focusing on immigration issues. Then I spent a little time in DC working for a congressman from Los Angeles doing the same sort of thing, and then I went to work as a paralegal with an immigration attorney named Bart Klein and started to concentrate on asylum claims.

Cosslett: When you worked as a paralegal, were you thinking that ultimately you would go to law school?

Whedbee: It was more of an opportunity to work substantively with immigration issues. It was fortuitous that I got involved with asylum cases . I spoke French, and one day a guy from Senegal or Mauritania came in wanting to seek asylum. Nobody could speak with him because he only spoke French. I went over and we started talking, and that was it. A wave of Francophone/West African petitioners followed and the law office developed a large clientele among that population. I was quite proud to help many of them get asylum in the United States. In my three years there, I think we prevailed on over thirty claims.

Cosslett: Am I right in thinking that a petitioner in an asylum case must establish a well-founded fear of persecution if they are made to return to their home country?

Whedbee: They also have to identify that their fear is based on something specific, such as an association with a political, social, or religious group . In 1991 there was a widespread political shift in Africa, and dictatorships were giving way to nominally democratic governments. The result was that groups that had previously been disenfranchised were allowed to participate in the democratic process, at least on a theoretical basis.

Of course, the transition did not happen overnight, so there were still many instances of voter abuse and intimidation . That’s why we had this spate of West African asylum claims: there was a group of people who had either been a product of the old regime or who were vying for power and were being re­­pressed. I studied the politics of the situation, and I was able to communicate, from a political standpoint, what was happening to these people. They came in and their stories were inchoate before they got to us. I was able to frame their stories into the right kind of claim.

Cosslett: You were taking their stories and framing them within a context that became a legal cause of action. Funnily enough, isn’t that what lawyers are supposed to do?

Whedbee: Funny because I was naïve. I wasn’t a lawyer, which actually might have been the reason behind some of the success. It wasn’t couched. I’ve seen later asylum claims, and there’s lots of legalese.

Cosslett: After two years you went to The London School of Economics ?

Whedbee: I was still undecided about what I wanted to do. I was ambivalent between something like the law, which would be more practice-oriented, and something like history, which would be more academic, and I could never really make up my mind. I had received a one-year fellowship from the NCAA for playing soccer in college and it gave me a year of postgraduate studies. London School of Economics had a year program, so I got to go for free, and I did that to test the waters of academia.

What I had found in talking to the immigrants seeking asylum was that I was really interested in the process of decolonization in Africa and in other countries. I was interested in how the current political situation in Africa had evolved from the process of decolonization, and I wanted to go look at the entire immigration phenomenon from a historical perspective, which is what I did at the LSE.

Cosslett: But you didn’t get involved as a lawyer in an international practice?

Whedbee: No. I wrote my thesis on a politician from the Ivory Coast, and then I had an accident about two weeks later and that derailed me for a couple of years. Ultimately, I decided from a purely practical perspective that I didn’t want to go to graduate school in history because I was not sure that I wanted to spend my time trying to chase down some tenure track position in God knows where, and I really felt that I needed to be in Seattle. I decided to go to law school because I wanted to be an immigration lawyer . I was around all these people who were doing it, and I thought, “Well, I can do this, too.”

Cosslett: You went to the University of Washington at Seattle. Did you enjoy the law school process ?

Whedbee: I loved law school. As I said, I thought I’d want to do immigration cases and to represent immigrants as a criminal defense attorney because I had seen how marginalized they could be by the legal system. They tell you when you go to law school to suspend all your preconceived ideas and to keep your mind open, which is what I did. Within three weeks, I realized that I had finally discovered the vocation I had always yearned for because it combined history, politics, textual interpretation, and rhetoric—all applied in real, everyday life to assist people. It was an incredible epiphany.

People thought I was crazy, but I just delved into American jurisprudence and became really interested in constitutional law, which explains my shift away from international issues to domestic issues. Even though I spent a lot of time in my life traveling around the world, and living in Germany, and living in France and England, now I’m here and I think about American issues for the most part. It’s kind of ironic.

Cosslett: So constitutional law was one of your favorite classes. Was it one of the most challenging?

Whedbee: Federal Courts was described to me as the crown jewel of con law, and that class was both challenging and incredibly rewarding. Trying to negotiate our system of dual sovereignties is just fascinating. That was my favorite class. I also took Equal Protection and First Amendment and your standard intro Con Law, in addition to Criminal Procedures and all the Fourth, Fifth, and Sixth Amendment issues. I like the idea that there are concepts which are elastic and which change with various interpretations as dictated by precedent. I like trying to put all that together in an argument. I found it to be intellectually very challenging and rewarding.

Cosslett: What internships did you take over the summers?

Whedbee: The first summer, I was accepted in a diversity program and was placed randomly at a primarily defense-oriented firm here in Seattle. It had a very active asbestos defense practice, but luckily, I didn’t have to do any of that, and I ended up working with the one criminal defense attorney there. That’s where I was introduced to criminal defense issues.

Cosslett: Did you go into a clerkship after law school?

Whedbee: As soon as I got to law school, I was completely transfixed with the idea of becoming a clerk. When I graduated, I went into the Eastern District of Louisiana, which is right in New Orleans, and I clerked for the then-chief judge, Helen Berrigan.

Federal judges, like professors, are amongst the few people in our society who have genuine intellectual independence because they have a kind of tenure. Unlike state court judges, who are elected, federal judges shouldn’t have to pander to any kind of populism, and they can feel free to interpret doctrine the way they think is right. Of course, they are constrained by precedent and the appellate courts can always overturn them, but within that context, they enjoy intellectual freedom. That idea always fascinated me, so I really wanted to clerk.

I used a scattergun approach and applied all over the country. I got three interviews, all in the South, which I welcomed. Then I got the job in Louisiana. The one thing that’s better than clerking for a year is clerking for a year in New Orleans.

Cosslett: What was Judge Berrigan like?

Whedbee: She was awesome. She was a very early Clinton appointment. She was the board president of the ACLU of Louisiana, which would probably disqualify her from being appointed now. Prior to becoming a judge, she had been a criminal defense attorney and had done a lot of death penalty work. We were involved in a really interesting case in which two local cops were being investigated by the FBI for giving protection to people running cocaine in and out of New Orleans. The police were alleged to have roughed up a couple of kids, and the mother or the aunt did something unthinkable and complained to the authorities. Unbeknownst to them, the cops were being taped by the FBI, and over the course of a number of phone calls with a local ruffian, the cops were heard to order a hit on the woman who had complained.

The hit was carried out. This case went between the district court and the Fifth Circuit for a number of years and was back in front of Judge Berrigan for sentencing. It was unbelievable. We had the actual sentencing trial to determine whether this policeman, Len Davis, should be put to death or not. The jury deliberated for about forty-five minutes and found that he should. Judge Berrigan was a death penalty opponent, although of course she was unbiased. There was a huge strain on her to make sure that there were no irregularities in the proceedings. It was a three-week process and super-stressful, but also really fascinating. That was something I got to work on that was probably pretty extraordinary for a clerk.

Cosslett: After that clerkship, you moved on to a clerkship with Judge Ronald Gould at the circuit court level. How different is clerking at a court of appeals from clerking at a district court ?

Whedbee: In a district court clerkship, you are insulated with your judge and all the decision making is taking place within chambers. When you’re working for an appellate judge, there are panels that are formed every month. Sometimes your judge is on a panel and sometimes he or she isn’t, but each time a panel is formed and the Ninth Circuit is “convened,” you’re working with two other judges and their respective clerks.

There’s a lot more behind-the-scenes politicking that goes into fashioning rulings in such a way as to garner the support of the other two judges. I hadn’t really thought about that beforehand, but one of the most pronounced things that clerks did was to craft memos and communications in such a way as to convince other judges to come on board with their judge’s views. The process of drafting opinions becomes much more collaborative—in spite of the judges sometimes. I drafted about ten or eleven opinions for Judge Gould that later became published. It was an incredible experience and definitely some of the hardest work I’ve had to do.

There was an added challenge to being a clerk for an appellate judge. Young lawyers, and clerks in particular, often have a self-imposed burden that they must get everything “right,” and that they must deliver the judge the “answer” they think he or she is looking for. Before Judge Gould would hear oral argument on cases, he would meet with his clerks to discuss the cases, and he would grind away at us. At the time I remember being disappointed in myself, and even a bit terrified, when I couldn’t provide that acceptable or “correct” answer. But in thinking about the experience later, I realized it wasn’t at all about my bruised ego. Rather, that grinding away was the judge’s process of refining his response to the legal problem presented and a dialectic at work as new law was formed. It had nothing to do with me.

Cosslett: Were the three judges coming from the same conceptual legal perspective ?

Whedbee: Each month there would be a different panel, so your judge would sit with Judges A and B in November, and then maybe in December or January, your judge would sit with Judges G and H. The panels were formed randomly so you always encountered different judges. Sometimes the judges would sit by designation, and you would get some crazy Reagan appointee from the East Coast and it would be completely different than the Ninth Circuit is used to. It’s pretty bizarre.

Cosslett: Between the two clerkships, you did some work involving clergy sex abuse litigation . Was there a particularly large group of plaintiffs in Seattle at the time? I assume you were not representing the clergy.

Whedbee: We represented the plaintiffs . Washington had a history of problems with various dioceses since the sixties and seventies. The challenge that you regularly confronted in these cases was that while there was often no question that the priest or church employee had committed the offense, many times the plaintiff didn’t come forward until much later, so there were statute of limitation issues. Often the defendants would argue that the plaintiff should have brought the case earlier: “You knew about this years ago. You should have brought it, and you didn’t.” In cases where you were suing the diocese either instead of or in addition to the priest himself, questions inevitably revolved around what the diocese knew about the activity and when did they know it.

Cosslett: What happens with the statute of limitations in delayed discovery abuse cases? Like when blocked memories of sex abus e are discovered in therapy?

Whedbee: In Washington, the statute of limitations begins to run either from the date that the repressed memories are discovered or—and this is the more common event—from the date of discovery of a causal relationship between sexual abuse and an injury. The injury from abuse suffered in childhood might only become apparent in adulthood, as in intimacy or parenting issues. Washington’s discovery rules turn on facts that are specific to the plaintiff’s personal history, such as whether and when he sought counseling. And the rules apply to negligent third parties as well as to the abuser.

Cosslett: You wanted to impute knowledge to the diocese because you would have access to a deeper pocket?

Whedbee: That would be one strategic consideration, yes. But at the same time, it has been well documented that these people were abusing their parish­ioners and the powers-that-be did nothing, or would reassign the malefactor to a different parish. It was the institution’s fault because this conduct was tolerated and hidden.

Cosslett: Can you describe the legal practice in Seattle generally? How big are the firms? What drives the practice there?

Whedbee: There’s one big firm in town that was founded here and now has offices worldwide called Perkins Coie. They are counsel to Boeing and represent big companies. They have over eight hundred lawyers nationally. There are a few other big firms, like K&L Gates, which used to be a local bigger firm, and they do a lot of intellectual property. There are a few medium-sized firms, around fifty lawyers or so, which handle run-of-the-mill commercial litigation, tort litigation, contracts, that sort of thing. There are a number of what they call “full-service firms” that do everything from wills and estates to intellectual property to criminal defense to toxic torts.

Cosslett: On the East Coast, we have seen a lot of consolidation amongst smaller firms. It’s hard to find a mid-sized general practice in New York these days. Are you seeing that out West at all?

Whedbee: We are seeing medium-sized firms that are imploding. You’ll find a firm that used to take up four floors of a big building now down to three lawyers. This has happened to a number of firms just since I’ve been practicing.

I think there are two things happening here. On the one hand, it’s expensive to hire lawyers, and in a contracting economy, lawyers get shut out. Secondly, if there’s a lot of fat going around, these medium-sized firms can maintain a pretty high overhead. If times are leaner, and these firms are accustomed to this overhead, it becomes an albatross. That’s what’s happening. These firms have staffing, and IT, and paralegals, and data/word processors, and all these things that big firms apparently need to operate, and the work’s not coming in.

Cosslett: Tell me about the practice and history of MacDonald Hoague & Bayless .

Whedbee: The firm was founded by three partners in the early 1950s—Ken MacDonald, Fran Hoague, and Alec Bayless. All three had served in World War II. Ken is from a blue-blood family in Boston and served in the infantry in Italy. He was a genuine war hero. After the war, when he came back to this country, he wanted to right many of the civil wrongs that he saw going on in the United States, including racial and other inequities. He came out to Seattle, and got together with Alec and Fran.

Ken’s first claim to fame was that he represented professors at the University of Washington who were being forced to take loyalty oaths. At the time, the House Un-American Activities Committee was something of a band on the road. The committee would show up in different cities, convene, and call people in front of them to establish that they were properly American. Ken would represent people who were called in front of this and other, similar committees. He became famous for that. He also represented Paul Robeson when he came to Seattle. Robeson was banned from performing because of his left-wing background. The firm also partnered with other attorneys in representing the Seattle Seven, which was a Vietnam-era group. Since then, the firm has ridden the zeitgeist of civil rights litigation in representing plaintiffs in political, racial, and gender discrimination cases.

In the 1980s, Tim Ford joined the firm. He is one of the premier death penalty lawyers in the United States and also does a lot of police misconduct work. He is one of my mentors. I joined the firm in 2007. Ken is ninety-four and still comes into the office once a week.

The practice of the firm is split fairly evenly between immigration and litigation. It was one of the first immigration law firms in the Northwest and, over the last decades, their immigration practice has blossomed and has become nationally recognized. The litigation practice incorporates civil rights, criminal defense, catastrophic injuries, employment law, and fair housing. Then there are subspecialties, like wage and hour litigation, and prison litigation. On the litigation side, there are six partners, and I’m the only associate. There are about the same number on the immigration side, and we have two new immigration associates.

Cosslett: It’s unusual these days to see a firm driven by a political ideology . Because the firm is fairly small, does it confine itself to fairly straightforward cases?

Whedbee: Quite the opposite. One thing about MacDonald Hoague & Bayless is that, foolishly or not, we take cases despite their complexity or difficulty, and we are often referred cases by other firms in which we are expected to pull a rabbit out of a hat—and often do. That’s the reputation of the firm around town, for better or worse, because sometimes we really do get dog cases and we take them anyway.

One thing about the firm that I came to realize after I began to work here is that it has a great reputation for being very scrupulous. It is not uncommon to question a litigant’s characterization of the facts. But I have heard from judges and mediators that, because of the strength of the firm’s reputation, nobody questions our recitation of the facts.

Cosslett: You have described your firm’s practice as artisanal . What do you mean by that?

Whedbee: When I say the firm’s practice is artisanal, I mean that we have very close relationships with our clients, because often they’ve gone through really horrific or trying experiences, and you have to build a rapport with them to be an effective counselor at law. Our job is to help them outside of the legal issues, but also to be able to convey what they’ve gone through in a way that’s persuasive and ideally cathartic for them. We try to take a holistic approach to what this person has gone through and vindicate on many levels those rights that have been violated. That’s what I mean by an artisanal law firm. Each case we take presents different difficulties, complexities, and special issues. We tailor our representation accordingly.

We take hard cases, we work them up thoroughly, we produce fine work products for our clients, and we enjoy a strong reputation for honesty in the legal community. Tim once said to me, “When you’re doing your work, you have to always make the right decision. And the most important decisions are those you make when you’re at your office late at night by yourself, and it’s only you who will know if your decision is right or wrong.”

Cosslett: In the litigation department of a large firm, you might find junior associates in the library doing research, midlevel associates helping to draft briefs, and partners in the courtroom. How does your firm’s structure compare?

Whedbee: Thankfully, it’s not like that at all. We have a mentorship program and you’re writing briefs right out of the gate. I had been here for two months and I was drafting summary judgment responses in a police misconduct case. I’ve argued two cases in front of the Ninth Circuit as an associate.

As an associate, I have to be supervised by another attorney, and each partner has a different approach to that relationship. As an example, Tim Ford would say, “Well, who’s driving? Are you driving or am I driving?” If he’s driving the case, then he’ll say, “I need you to do X and to do Y.” If I’m driving, I take control of the case, and I plan the discovery, I think about strategy, and, of course, I consult with him. It’s a role reversal, and I’ll say, “Tim, can you do this? Can you do that?”

Mel Crawford , another mentor of mine, has a superb command of the facts of each case. And when I work with him, I am often tasked with finding the law to buttress our position. We then put our heads together in hammering out our legal arguments and divide up the brief writing.

In either dynamic, you get used to being in a partner role.

Cosslett: It sounds very collaborative.

Whedbee: Yes, and that’s how you become a better attorney. I’ve stayed in touch with a couple of my co-clerks from Judge Gould’s chambers who went off to fancy, well-paying jobs in DC. They called me from some warehouse in Arizona where they were doing document review and I told them, “I just did my second trial of this year.” So I’m really quite pleased I chose this route over that one, even though I’m probably paid fifty percent of what they are paid.

Cosslett: Tell me about your role as a litigator.

Whedbee: I didn’t realize until I started to work in litigation that there really is a litigator code. There are true litigators and there are people that just do it for a while. You’re not really accepted as a litigator until you’ve been at it for ten years, and even then your acceptance is gradual. You have a long apprenticeship because there are so many things that you need to learn. I’ve been at it for almost five years and I still just think, “My God. I don’t know what I’m doing.”

Cosslett: Don’t tell your clients that.

Whedbee: No, I won’t. When you do complex litigation, the chessboard has a lot of dimensions and you have to figure out how to move all the pieces. That’s the fascinating part, but it’s also the difficult part.

Cosslett: What kind of trial work have you done?

Whedbee: I’ve had two jury trials and two bench trials. I represented two different sets of clients who were Somali. Both clients had had their houses raided on the same day in a nationwide DEA¹ investigation. The DEA was looking for khat, a substance that is grown and is legal in the Horn of Africa and also in most European countries, but is not legal here in the United States. It’s chewed socially by many Africans, including Somalis, and is about as strong as a double espresso.

The Bush Administration was looking for the channels of funding going back to Al Qaeda and other terrorist organizations, and they figured that if they got underneath this system of khat, they might be able to find out what the funding channels were as well. This was actually a totally misguided, fruitless undertaking. What happened was that a lot of people got swept up even though they weren’t in possession of and weren’t dealing khat. The government partnered with local law enforcement often using SWAT teams, and they served search warrants in the very early morning. They went in with full military regalia and all. These people had come from war-torn Somalia, and they got really scared.

They didn’t let people dress themselves properly, so of course the Muslim sensibilities were offended and degraded. We handled two of these families. In one case, we settled with the United States and then we were dismissed on summary judgment against the local cops. In the other case, we went to trial and lost, unfortunately. At that point, I realized that as much as I might ardently believe that what we’re doing was right, your general Joe Juror doesn’t really give a shit and takes for granted that the government is acting appropriately. All the government had to do was stand up and say, “This money was being channeled back to terrorists.”

We took the cases to the Ninth Circuit , and I really thought we were going to win. The issue was about the entry into the house. There’s something called the “knock and announce rule.” If the police serve a warrant, they have to knock and identify themselves as police and give the people a chance to clothe themselves and come to the door. It’s supposed to be an orderly process, unless there is genuine danger or risk of evidence destruction. The police have to have specific indications of “exigent circumstances” not to comply with the rule, and here there was nothing. We were trying to put a stop to the idea that the police can just assume people are going to be dangerous because you’ve heard that they’re dealing khat. The plaintiffs were not drug dealers, they were just normal people. I think it’s hard for a jury to accept that the police may not have complied with the law when they get up and talk about how dangerous things are generally.

Cosslett: Why did the Ninth Circuit rule against you?

Whedbee: They said that there were exigent circumstances with respect to the one case where the police didn’t knock at all. And in the other case, they knocked and waited only ten seconds. The issue there was that the Seattle Police Department has a standard rule: they always wait ten seconds. The courts have said that the practice of maintaining a rigid rule like this, a bright-line wait period, is unconstitutional. So we sued both the officers and the city, but there’s a doctrine in constitutional law that says if the underlying officers’ actions are constitutional, then you don’t reach the larger issue of municipal liability or the policy guidelines followed by the SPD. The court in that case said the ten-second wait was reasonable under these circumstances, and we never got to the larger issue.

Cosslett: I understand your firm also gets involved in Innocence Project cases .

Whedbee: Yes. I was with the Innocence Project at the University of Wash­ington. Jacqueline McMurtrie, who’s the director of the Innocence Project Northwest Clinic, has referred a couple of cases to us, and we’re partnering with Peter Neufeld and Barry Scheck’s firm in representing a couple of guys who were incarcerated for seventeen years for a rape that they didn’t commit. The Innocence Project here locally got them exonerated. We’re representing them in a civil context to see if there was liability on the part of Clark County officers.

Cosslett: Do a lot of Innocence Project cases result in successful civil trials? You would think prima facie that the fact of exoneration demonstrates that somebody, somewhere along the line, did something wrong.

Whedbee: That’s true. But the hurdle that you run into—and this is one of the issues in civil rights litigation that’s both fascinating from an intellectual standpoint, but incredibly frustrating from a practical standpoint—is that officials have all kinds of immunities. In the postconviction setting, when someone is exonerated, often the misconduct is that of the prosecutor, but prosecutors enjoy what’s called “absolute immunity.” There is only one narrow exception to this doctrine. Tim Ford won on this exception in a case he argued in front of the Supreme Court in 1997 called Kalina v. Fletcher, in which the Court declined to accord absolute immunity to a prosecutor acting in the role of a witness rather than as an advocate. But, for the most part, you can’t sue prosecutors, and it’s tragic because even though somebody has spent all this time in prison for a crime he didn’t commit, he can’t get any compensation.

There have been a few prominent cases that have come out of Orleans Parish, where the training of prosecutors in Brady issues, for instance, is nonexistent.

Cosslett: What are Brady issues ?

Whedbee: Withholding exculpatory evidence. The prosecutor has a constitutional obligation to hand over any material exculpatory evidence to the defense, and if he or she doesn’t, and there is a reasonable probability that the withholding changed the outcome of the trial, then a conviction is reversed.

What happens is that you’ll discover down the road, after a defendant has been in jail maybe for many years, that the prosecutor sat on something that he shouldn’t have. Obviously, a wrong has been done to the defendant and there’s even been an obvious constitutional violation under the Sixth Amendment, but you can’t sue the prosecutor because he’s absolutely immune. What you try to do is to go after the police officers involved in the case, as they fall under Brady as well, but the officers themselves must have withheld information from the prosecutor for Brady to apply.

Usually, they’re giving their evidence to the prosecutors, and as soon as it makes that transition, then we have immunity issues. It’s very, very difficult to get in there and find out what actually happened, but there are a lot of cases where you do. Something obviously went wrong, and often you find out that many people were complicit in the wrongdoing and you can get some compensation for the victim. But it’s a minefield.

Cosslett: What other practice areas are you involved in?

Whedbee: I’ve started to do some fair housing cases , which I like, and some criminal defense work. Sometimes the fair housing cases involve racial discrimination, but not always. I have a case now that is pretty interesting. My client runs a clean and sober halfway house in a small community. Studies have shown that taking people who are substance abusers or former substance abusers out of high-crime areas and putting them in a familial setting in residential areas is an effective method for keeping these people sober. This is what my client has done, and he has received accolades from probation officers and social workers and police, yet there’s a local mayor who, for whatever reasons, doesn’t want to have a halfway house in his little fiefdom, and so he’s making it difficult for my client to get a business license.

Cosslett: Not in my neighborhood . . .

Whedbee: Right. So my client has potential claims under the Federal Fair Housing Act . Substance abuse or alcoholism is considered a disability. It has to be reasonably accommodated. Unless the city can show genuine hardship, they have to give these people a permit to live in a residential area, even though they’re not in a single-family home. Our country over-incarcerates people to a mind-boggling extent and there is a stigma that attaches to people who have spent time in jail, for whatever reason. One of the things that we do is try to enforce people’s rights to live where they want to live and where they are allowed to live. That is a central ethos of fair housing.

Cosslett: People like to think they live on Wisteria Lane, and having a halfway house down the block disturbs that image. Tell me about the work you do in the area of criminal defense.

Whedbee: We had a really great case here where some local artists were being investigated for engaging in illegal gambling . These artists were putting on a cabaret in the course of which there may have been some gambling. The Seattle PD went undercover and infiltrated this group for many, many months. They were actually monitoring the group because they thought they might be involved with extreme leftist organizations like the Animal Liberation Front or the Earth Liberation Front. They were not. The artists were politically active and may have even taken radical stances, but nobody was a domestic terrorist.

After they spent inordinate resources investigating these people, teamed up with the FBI at times, the Seattle PD realized that there was nothing happening. But in order to redeem the expenditure of all this money, they decided to bring gambling charges against this group of local artists under a thirty-year-old statute that literally had to be dusted off. First, members of the group were charged with felonies, and then misdemeanor deals were offered.

My client stood his ground, and we held the prosecutor’s feet to the fire for almost nine months. We conducted exhaustive discovery and went on the offensive saying: “This is domestic spying that you’re engaged in, and now you’re trying to use more money to justify your previous actions when you came up with nothing. And that’s repugnant to us.” We forced their hand and they ended up dropping all the charges against my client.

We had an unorthodox situation because the community really backed him. We had fundraisers and—for a criminal defense representation, which is usually the most discreet thing that you can imagine—it was very public. It was an inventive way of dealing with the charges against my client and, ultimately, effective. It was nice to be at a small firm that has freedom to be ballsy like that. It worked out very well.

Cosslett: Are there any other type of cases or practice areas that you’ve been able to enjoy by virtue of being at a smaller firm?

Whedbee: Ken MacDonald , the firm’s founder, passed down a credo. Remember he is over ninety years old now, but he’s still just as salty as you can imagine. He said, “Back then, we took cases. We took them, we learned them, and we won them.” I really like that approach, and I understand that in today’s world of lawyering, when things are so specialized, that one of the nice things about working in a small firm is the diversity of practice. When a partner gets a case, he says, “Okay, let’s do this,” and all of a sudden I’m becoming an expert on labor law from the 1980s and we go to trial and we get a bunch of lumber mill workers their back pay. It’s incredibly satisfying to both get that kind of result and to be able to figure out stuff from scratch, and take it on and win it.

That was a labor law case involving a bench trial. I’ve also been involved in working on what another partner, Mel Crawford, calls “grunt torts ,” where somebody dropped something and a worker gets hit in the head with a piece of steel. You have to figure out which defendants to sue. We’ve done some litigation out at the Hanford Nuclear Reservation in southeastern Washington, which employs numerous government contractors. The DOE² is cleaning up the Hanford nuclear site, which is dangerous and hard work. Hanford is something of a company town, split between many companies. You have lots of workers, and literally you’ll see three generations of people who’ve been doing nuclear demolition work. It’s crazy out there.

Cosslett: What’s the kind of work that you’re doing out there?

Whedbee: They were demoing a big building and somebody left a catwalk door open. The DOE conducted an investigation and found that the work safety package had been screwed up, but there were a lot of different companies in­­volved who had provided workers, and so now we’re trying to figure out who is responsible for my client’s injuries. He is very badly injured and right now is only entitled to Labor & Industries—L&I—a form of worker’s compensation. That means he is not allowed to sue his employer for workplace injuries. We figured out who was negligent in designing the safety program and sued the responsible parties in Massachusetts.

Cosslett: It’s interesting to have a firm that’s ideologically a civil rights firm also do personal injury work, which is generally considered non-ideological.

Whedbee: Sometimes it is and sometimes it isn’t. What you have in these situations is powerful companies and people—workers—who are not so powerful. And that’s how it is. We go up against a real deep-pocket firm and then it’s just us. They have a whole team of lawyers and we’ve got a couple of guys. They stay at big hotels and we stay at Motel 6. There are real financial considerations for a small firm, and sometimes things get a little dicey and a little volatile, and you have to win enough cases or your firm won’t survive financially. There’s a balance that we’re always trying to strike and restrike between taking cases that we feel are righteous, and those that we feel are going to be able to bring some money into the firm. In certain cases, we end up taking only a percentage of our hourly rate, which means that you just work that much harder in order to stay afloat while still taking these types of cases.

Cosslett: When you posit a personal injury case as an injured individual versus a company, it is not ideologically inconsistent with the other cases you take. It’s the same mindset. In terms of your lifestyle, what kind of hours do you work?

Whedbee: Well, we’re not as bad as the New York firms, but I think I’m probably at eighteen hundred billable hours. It’s a lot. The other thing about our firm is that the line between firm and other life is not very clean. Because it is like a small family, sometimes it’s dysfunctional and sometimes it’s not. Everybody is impassioned about what they do, and it becomes an all-immersive experience. It gets a little crazy. You are there a lot or thinking about it a lot. And I find it difficult to extricate myself from work because I have a great deal of responsibility both to my clients and to the firm. In addition, I’m a relatively young lawyer and perhaps extra-cautious or extra-apprehensive about getting it right.

Cosslett: Are there issues of professional responsibility that have come up that are specific to your practice, either as a personal injury lawyer or as a civil rights litigator?

Whedbee: One issue that does come up is that when you sue the government or you sue a police department, you have to be unimpeachable in your ethics because there is a presumption that the government or police acted appropriately. For example, if your client got beat up by the cops and he is suing, the presumption is that that he deserved it.

And so we have, I think, an extra burden to be ethically unimpeachable, because as soon as anybody finds a little crack, they’re going to seize on that. One thing I’ve learned that defense attorneys are best at is making the plaintiff, who has indeed been injured, feel like it’s his fault and that somehow he is responsible for his injury. This is the one thing that just pisses me off more than anything.

You see defense counsel , in many cases, not all cases, but in many cases, belittle your client in front of you—in a deposition, for example. And they have to endure it. You and your client need to be ethically superior to the defense, because the presumption is that you’re a lowlife or that you’re trying to take advantage—which, of course, is not true. Or they’ll take things like drug use, let’s say, that has nothing to do with the actual injury, and they’ll seize on that. And it’s frustrating when that happens. They’re trying to destroy the credibility of the victim, so you have to start out with by being ethically superior in order to withstand that attack.

Cosslett: And you also have to not let it get your goat, I would think.

Whedbee: True. And you have to make sure that your client understands what’s going to happen and not let it get them, because usually there’s a strategy to try to get them so upset that they’ll start to talk or lash out, and all those things will be used against them later on.

Cosslett: Are you able to keep your cool in those sorts of situations? Are you levelheaded and calm? Or do you get invested?

Whedbee: I definitely get invested, but I think I’m pretty levelheaded. I’m the kind of guy who will give you the benefit of the doubt, and I go in with a spirit of cooperation. At some point, however, if they cross the line and piss me off, some other part of me comes out. Usually, I think it works really well for the case because I’ve been noble up to a point and then, at that point, I turn into a street fighter. It’s on. And now it’s justified.

Cosslett: Is there a skill set that you think is particularly useful for your practice area?

Whedbee: Empathy is important. Being able to really understand—and to convey your understanding in a way that is sincere and compelling to a fact finder—is also important. The hardest thing to do is convey that understanding within the context of a legal doctrine that you’re trying to work through, and to talk to a judge or a jury in a way that avoids a lot of legalese and avoids almost anything that sounds like a lawyer. People just don’t really trust lawyers. Being able to shift from one rhetoric to another is probably the most important and difficult skill of a trial lawyer, and it takes quite some time to learn because we go to law school—and all that gets taken from us.

Cosslett: What would you tell law students or undergrads considering law school about being a civil rights lawyer?

Whedbee: Be prepared for a really exhausting fight. The cases are typically uphill, and even though there might be things that you learn in law school about who has the burden of proof and what the standard of proof is, in real life, it’s much higher in civil rights cases. If you’re suing governments and police officers, the general social perception of these people and entities automatically puts them above you, and there are doctrines that are set up as roadblocks to prevent you from getting into court and saying what actually happened.

I like the intellectual intricacies and the complexities of these doctrines, but when you realize that you’ve got to run that gauntlet in every single case before you can actually go in and say what happened to your client, it can be pretty daunting. I mentor law students here each year and that’s what I tell them.

On the positive side, of all the choices that law students or young lawyers have, this is one that you genuinely can feel excited and proud about almost every single day. It’s rare that your work becomes drudgery or that you’re doing something that seems disconnected from what’s important to you. It hardly ever happens. You’re always connected, and you’re so tightly wound up in your work that it can be exhausting. But I would rather have that than going into a situation where I’m doing insurance defense or God knows what, and I’m just not invested at all.

Cosslett: Have you ever had to advocate for either someone or something that you just really didn’t believe in?

Whedbee: I sit in a wheelchair and I’ve got one functioning arm, and I go to work and I work full-time, and maybe there’s a little bit of me that feels that I need to work more than everybody else just to prove myself.

Sometimes I have clients who have been injured, and at some point, I’m a little less than persuaded that the injury is all that debilitating. That’s the hardest thing I find. There certainly has been a wrong, and when you’re working in con­stitutional law , the wrong you’re trying to right is both concrete and abstract, because we are protecting the Constitution and there are principles we are trying to vindicate. We really are a check on the government and its power. But the way it works out practically is that you’re looking at real injuries that were caused by the wrong, and that’s the full form of the lawsuit. And to me sitting in the chair, I think: “Give me a break. You haven’t been able to go back to work because of what again?” And that sort of situation I find difficult to swallow. But I think that’s pretty rare, and usually the injuries are genuine and real and there’s no malingering at all. That’s really the only example of something I find difficult to deal with.

I don’t mind representing employers and people who have a different ideological perspective than I do, although some people in our office are much more partisan. Generally, you’re trying to work out some fair arrangement, and I enjoy working in a non-adversarial context where every single issue is not a fight.

Cosslett: Has your disability colored your experience as a lawyer?

Whedbee: The one thing about being in a wheelchair is that people have to do things for me a lot, and it’s difficult for me to feel like I reciprocate. It would be nice, in a very mundane example, to be able to do the dishes after somebody cooks dinner. Day in and day out, I don’t have that opportunity to reciprocate.

One thing I realized very early on in the law is that taking on a case and representing a client is like constructing something. It’s building something. And so there’s an intellectual lifting that goes on for the benefit of this person. I feel like I can reciprocate in that way, which is a way that I don’t get to in ordinary life. I can actually help somebody and the disability doesn’t matter. To that extent it’s impacted my practice, because I feel this extra thing, whatever it is, that I’ve just described. The firm has been very generous with me as far as making allowances that they probably don’t have to do, and everybody is very accepting of whatever deficiencies I have that a regular person might not.

Cosslett: Thank you, David.

¹ US Drug Enforcement Administration

² Washington State Department of Ecology