In appellate law and jazz, Ken Masters lives up to his name
Published in 2018 Washington Super Lawyers magazine on June 18, 2018
One morning in the late 1990s, Ken Masters found himself in a Muzak-filled elevator in Los Angeles, on his way to a settlement meeting. He was representing ZZ Top in a lawsuit against Chrysler Corp., which had used the song “La Grange” for promotional purposes.
Chrysler had argued that the riff was similar to the work of earlier artists and therefore not protected by copyright. Masters and then-boss Charlie Wiggins (now a state Supreme Court justice) secured a partial summary judgment in district court saying the work was recognizably ZZ Top’s.
For some in Masters’ shoes—headed to a settlement meeting—an elevator ride might be a moment to get through. But he zeroed in on the music. It featured, he realized, the unmistakable stylings of legendary jazz guitarist Joe Pass. So when Masters reached his floor, he stayed put, riding the elevator down and up again to savor the song till it ended.
That’s how much music matters to him. It’s also key to understanding his success in law.
A former professional guitar player, Masters was a triple threat even before he filed his first brief. With a brain shaped by early musicianship, “10,000 hours”-style discipline and a passion for collaboration, he was well-equipped for the shift to law. In his second career, he has handled hundreds of appeals.
Masters was born in Moses Lake but spent his formative years in the Southwest. He began playing the trumpet in fifth grade, French horn in sixth, and guitar in ninth. Soon he was in an esteemed high school ensemble in Denver, and ended up giving music lessons and touring with bands in a variety of genres. This slowed the process of getting his undergraduate degree (in behavioral science from Metropolitan State College in Denver) and delayed grad school for almost 10 years. At least one undergraduate counselor suggested he was wasting his life with music.
When eventually he applied for law school, he was surprised by the generous funding offers for a late bloomer. To one school that offered him a full ride, he asked, ‘I’m a musician; I haven’t been in school for 10 years, why…?’ They said, ‘That’s why.’”
“I think like a musician. And that’s exactly what they were looking for,” he says. “As a musician, you learn to manipulate these abstract concepts—harmony and melody and rhythm—to produce a concrete result. In the law, we manipulate abstract legal concepts to produce a concrete result.”
Masters, 58, keeps up his chops: In 2015, he played guitar in an ensemble called Focus on Sanity at Seattle’s celebrated Earshot Jazz Festival. These days, he gives just a few hints of his jazz-cat alter ego: A bracelet of green beads peeks out from under his shirt cuff, multiple rings adorn his fingers, his silver hair is a little long in back, and his laugh is frequent and hearty. He says at some point during his first year at the University of Puget Sound School of Law, now Seattle University, he came to appreciate how his brain had been organized by studying music.
From 1994 to 1995, he clerked for Judge Elaine Houghton, now retired from the Washington State Court of Appeals. “I immediately realized he was brilliant, humble and humorous,” Houghton says. She knew of one or two cases in which judges turned to Masters, the clerk, to solve issues.
He remembers a Friday night near the end of his clerkship when Washington Appeals Court Judge J. Dean Morgan asked him to review a personal restraint petition and report back Monday.
“I didn’t get a lot of sleep that weekend,” Masters says. At the appointed time, he marched into Morgan’s chambers. “‘Well, your honor, I’m sorry to tell you that you violated this prisoner’s constitutional rights,’” Masters says. The judge, he recalls, responded, “That’s what I thought. How would you like to work for me?”
Masters ended up taking a job at Edwards, Sieh, Hathaway, Smith & Goodfriend. Years later, Smith and Goodfriend signaled their regard by nominating him to the American Academy of Appellate Lawyers. In 1998, he joined their former partner, Wiggins, in practice on Bainbridge Island. In 2011, after Wiggins went to the Supreme Court, Masters opened his own firm on Bainbridge with Shelby Frost Lemmel; his wife, Kara Masters, later joined in an of counsel role.
Making A Difference
Masters’ practice touches every kind of civil law and allows him to be a generalist in an era of increasing specialization. That range, more and more, reaches into the world of technology law. Last year, he found himself in the middle of a case that will have ramifications for companies trying to reach new customers in Washington via their smartphones.
In March 2014, Washington state resident Kenneth Wright filed a class action against Lyft after receiving a text message that appeared to come from an acquaintance. It offered a free ride worth $25 if he downloaded the Lyft app. He alleged the text violated Washington’s Commercial Electronic Mail Act (CEMA), which prohibits commercial text messages to Washington cell phone numbers.
The U.S. District Court sent two questions to the Washington State Supreme Court, asking if the recipient of a text message that violates CEMA has a right to sue for general damages and if Lyft was liable under Washington’s Consumer Protection Act (CPA). Masters prepared a brief on behalf of Wright and argued the case before the state Supreme Court.
In short order, the court weighed in, saying a person who receives an unauthorized commercial text may not sue for damages directly under CEMA, but is entitled under CPA to $500 or actual damages (whichever is greater), tripled to $1,500 per violation and attorneys ‘ fees. The burden of proof fell on Wright, “but the way it worked out, all he had to show was he received the text,” Wiggins says. “All five elements that you have to prove for CPA action were established, just by showing you got a text. It was a pretty amazing win.”
Masters’ brief in the Lyft argument was less than 20 pages long. He’s written fewer than five that exceeded his 50-page max, one of the many rules and philosophies that guide his approach to legal writing. He shares these insights in seminars, lectures, panel discussions and publications.
“He has probably given more deep thought to writing briefs than anyone presently active in appellate law working in the state,” says Michael King, an appellate attorney at Carney Badley Spellman in Seattle. King recently collaborated on a brief with Masters in an attempt to get claims reinstated against an airplane-engine manufacturer in a case involving a fatal crash.
“My view is we’re supposed to help the judges make their decisions,” Masters says. He does that by narrowing each brief to the strongest issues. That laser focus helped him win a high-profile appeal last year that redefined products liability law.
The case involved a 63-year-old Bremerton man, Fred E. Taylor, who was seriously injured during prostate surgery performed by a surgeon using a surgical robot with which, Masters says, he had inadequate experience. The patient suffered a tear in his rectal wall, renal failure and respiratory failure, causing infection and neuromuscular damage. A doctor testified that his death four years later was hastened by complications from the prostatectomy.
“It took him years to die,” Masters says. “It’s horrible what happened to him.”
Taylor, and later his wife, sued and eventually settled with all parties except Intuitive Surgical Inc., the manufacturer of the robot. That case went to trial, and ISI won. Taylor appealed, eventually to the Washington Supreme Court.
Masters argued that the trial jury was not instructed to consider whether the manufacturer had a duty to warn Harrison Medical Center about possible dangers. ISI argued that warning the surgeon was enough. Masters argued that the Washington Product Liability Act said otherwise. “You sold it to Harrison. You had to warn Harrison,” he says simply.
In February 2017, the state Supreme Court issued a 30-page decision and remanded the case for retrial. “If you fail to warn, you’re done,” Masters says.
There is much about appellate law that is given over to the solitary enterprises of reading, analyzing and writing. But Masters is no soloist. He likes to confer with colleagues, support his peers, and serve those who need—but cannot afford—his skills.
It may just be in his DNA. “I have never seen Ken be anything but outgoing, gregarious, ebullient and filled with energy—especially for other people,” says Seattle University School of Law professor Christopher Rideout, who is partly responsible for Masters’ excellent writing skills. “When he encounters you—no matter who you are—he insists on greeting you with a large bear hug.”
King got to know Masters as an opponent when Masters and Wiggins weighed in on behalf of the plaintiff in Magaña v. Hyundai Motor America, a years-long case that resulted in the state Supreme Court upholding an $8 million award against Hyundai as a sanction for discovery violations.
“That’s one of the things about Ken that is so admirable, that we can be zealous advocates in the trenches, firing shells at one another, and then, as we did after Magaña was over and done, we went to El Gaucho and we closed the place down,” King says. “He gets that this is not a zero-sum game.”
Along with serving as the 1st District governor for the WSBA Board of Governors from 2012 to 2015, its treasurer for a year; and president of the Washington Appellate Lawyers Association for six years, Masters now heads a task force that is writing rules to reduce the cost of civil litigation in the state.
He also consistently volunteers legal expertise. “He feels very keenly the responsibility of a lawyer to do pro bono work and to help those who aren’t able to afford a lawyer,” Wiggins says. Every year since 2004, Masters has received a WSBA commendation for at least 50 hours of pro bono service.
Recently, he helped a woman in Eastern Washington who had lost custody of her daughter due to drug abuse. After she got her life in order, Masters helped her win back custody. “I told her, ‘I’m incredibly proud of you for what you’ve done,’” he says. Hearing in February that a third-party’s custody petition had been dismissed and the woman and her daughter are doing great, he says, “has been a most satisfying victory.”
Cue the music.
Three Brushes with Fame
1. When Masters was a kid, Francis Gary Powers (the U2 pilot shot down and captured while doing recon over the Soviet Union in 1960) was a dinner guest at his home. It wasn’t until he was in his 40s that Masters learned his father had been in the CIA.
2. During Masters’ pre-law years in Denver, jazz icon Chet Baker was gigging at a famed jazz club, El Chapultepec, when Masters was invited to sit in.
3. Google “Ken Masters” and buff, blond karate expert Ken Masters of Street Fighter video game fame will claim most of your results. “But I’m smarter than he is,” says the Bainbridge Island attorney, who has no idea how to throw a hadouken.