November 18, 2017

Archives for August 2011

The Educating Tomorrow’s Lawyers Project at IAALS at DU

Many attorneys in practice have wished that their newly hired law school graduates had more training in what attorneys actually do. Traditionally, law school has offered courses that were mostly grounded in the major doctrinal areas of law. While this foundation is certainly important, there has long been a gap between law school and the profession.  But this is starting to change.

There has been a broad ranging discussion going on for several years in the legal academy about how to provide a more balanced curriculum to our students.  This discussion – which had been simmering for many years – received an impetus from a critical report from The Carnegie Foundation for the Advancement of Teaching in 2007.  The Carnegie Report was soon followed by the econalypse of 2008, which has had a profound impact on the economics of the legal profession.

The Carnegie Report mostly commended legal education for the work it does in the first year of law school, noting that the critical analytical skill lawyers must have is formed there.  But when law school continues to use the “doctrine focused” method of teaching in the second and third year it loses the opportunity to teach critical lawyering skills and to help students form their professional identity as ethical lawyers.  The Report advocates a movement toward teaching what it calls the three “apprenticeships” – analysis, skills, and identity – in an integrated fashion, i.e., all together in each course.

When I graduated from law school, I found myself less prepared than I expected to be for life in a large litigation firm in New York City.  I certainly knew the basic doctrines and rules that one learns in Civil Procedure, but I had never drafted a set of interrogatories, much less answered a set or handled a document review.  I learned all of that at the expense of the firm’s clients, which was a fairly common practice at the time.  Today, clients have less tolerance for paying for the training of first year associates.

When I moved to the Rothgerber firm Denver in 1990, I contacted the University of Denver’s law school to see if they would be interested in having someone teach an advanced course in Discovery law.  It turned out they did, and I served as an adjunct professor for six years.  In those years, I developed a course that was a “Carnegie integrated course” before such a thing existed.  It integrated the doctrine, skills, and ethical identity apprenticeships in myriad ways throughout the course.

Since I came to teach at DU full-time eight years ago, I have continued to refine the course, and I have now it taught almost a dozen times.  I also have recently authored a hybrid textbook (with print and online components) to support this different method of teaching.

In the course, students learn the Federal Rules of Civil Procedure that govern civil discovery law, and we study important cases that interpret those rules.  Throughout, the students are not just learning but also doing.  That is, they are working on a litigation, assigned to represent a party, and assigned to an opposing counsel (who is another student in the course).  In the mock litigation, the students are only given part of the relevant information, so at least they can get started.  The rest of the semester, they use the discovery rules to learn the rest of what they need to know – just like in a real litigation.  So, we learn about Rule 33 and how it operates in practice, and then the students prepare a set of interrogatories and serve it on their opposing counsel.  In the next class, we learn about answering interrogatories (which is mostly about privileges and objections), and then the students answer the set that they received from their opposing counsel.  And so on throughout the semester.  The students also conduct a deposition, and at the end of the course, they settle the case and prepare a settlement agreement.  In the deposition, student court reporters from the Denver Academy of Court Reporting take down the testimony and produce a transcript for each student to review.  Students take, defend and act as a witness in the deposition; that way they experience it from all vantage points.

I created this course so that at least those students who had taken it would never enter their first legal job (as I did) with little idea of how the rules of civil procedure actually apply in practice.  I discovered to my immense joy that it is massively more fun to teach in this way.  And students are highly engaged: if you have heard stories about students tuning out in class to check their email or Facebook page (or perhaps you did that occasionally in law school?), I can tell you that does not happen in this class – student engagement is very high.  A teacher’s greatest joy is to teach engaged and motivated students.

While there are pockets of this kind of teaching going on around the country – more commonly in the last few years – it is still fairly isolated.  A new initiative of the Institute for the Advancement of the American Legal System at DU – it is called “Educating Tomorrow’s Lawyers” – is aimed at encouraging this kind of integrated teaching at law schools across the country.  It will, over time, contain teaching portfolios from many law professors who teach in this “Carnegie integrated” way, so that other professors can learn and incorporate these techniques as they see fit in their own courses.  There are three teaching portfolios already posted on its new website, including one explaining the Discovery course I teach in more detail.  If you would like to know more about this effort, please visit the website – http://educatingtomorrowslawyers.du.edu

© 2011 David Thomson – all rights reserved

David Thomson is a Professor and Director of the Lawyering Process Program at the University of Denver Sturm College of Law. David is well known for his expertise in using technology in teaching, and has presented widely across the country on this topic over the last few years. He is the author of Law School 2.0: Legal Education for a Digital Age (LexisNexis/Matthew Bender 2009). David’s Discovery Practicum course is one of the three innovative courses featured by IAALS‘ Educating Tomorrow’s Lawyers project at DU.

American Bar Association Issues Formal Ethics Opinion Regarding Fee Arrangements

On August 4, 2011, the ABA released an ethics opinion, Formal Opinion 11-458, which discusses Changing Fee Arrangements During Representation:

Modification of an existing fee agreement is permissible under the Model Rules, but the lawyer must show that any modification was reasonable under the circumstances at the time of the modification as well as communicated to and accepted by the client. Periodic, incremental increases in a lawyer’s regular hourly billing rates are generally permissible if such practice is communicated clearly to and accepted by the client at the commencement of the client-lawyer relationship and any periodic increases are reasonable under the circumstances. Modifications sought by a lawyer that change the basic nature of a fee arrangement or significantly increase the lawyer’s compensation absent an unanticipated change in circumstances ordinarily will be unreasonable. Changes in fee arrangements that involve a lawyer acquiring an interest in the client’s business, real estate, or other non-monetary property will ordinarily require compliance with Rule 1.8(a).

Comment [16] to Rule 1.8 advises that when a lawyer acquires by contract a security interest in property other than that recovered through the lawyer’s efforts in litigation (e.g., a contingent fee agreement), such an acquisition is a business or financial transaction with a client and is governed by the requirements of Rule 1.8(a). When it applies, Rule 1.8(a) requires that:

  1. the terms of the transaction are fair and reasonable to the client and are fully disclosed and transmitted in writing to the client;
  2. the client is advised in writing of the desirability of seeking and is given a reasonable opportunity to seek the advice of independent counsel; and
  3. the client gives informed consent to the essential terms of the transaction and the lawyer’s role in the transaction in a writing signed by the client.

Compliance with Rule 1.8(a) is appropriate in such situations to protect clients from potential overreaching by lawyers. When the client takes advantage of the advice to consult independent counsel, it also provides an opportunity for a neutral evaluation of the reasonableness of a fee that may be paid or secured by non-monetary property.

Click here to read the full opinion.

Beverly Michaelis: Offer a Free Legal Check-Up and Keep Clients Happy

When was the last time you personally contacted a former client to see how she or he was doing?

This year?  Last year?  Never?

As the kids head back to school, perhaps we should take a cue and revisit “Client Development 101.”

Here are the undisputed facts in evidence:

Make a concerted effort to reach out and contact former clients.  Pick up the phone or visit with the former client in person.  This can be a no-charge “I was thinking of you” check-in or a free legal check-up if the type of work you did for the client lends itself to periodic review.  The goal is to rebuild and refresh client relationships.

Texting or e-mailing is not my first choice for this type of follow-up, but you know your clients and I don’t.  Use the communication tool you know your client would prefer.  The whole idea here is to personalize the contact.  Therefore, do not fall into the trap of believing that mass e-mail marketing, e-zines, or holiday cards constitute keeping in touch with former clients.

Why make the effort?  Because no happy client is insignificant.

When I was in private practice, one of the best referral sources our firm ever had was a client with a modest slip-and-fall case.  Liability was clear, but damages were nominal – soft tissue injuries, only a few days missed from work, no significant medical specials.  We negotiated a decent settlement and the client was happy.

Ironically, I’m not sure we would have taken this client’s case a few years later.  The damages weren’t that great and we didn’t generate much in the way of fees.  Thankfully, we represented the right person at the right time.  Our client with the modest slip-and-fall case turned out to be one of our biggest cheerleaders.  He referred many clients to us over the years.

The moral of the story is pretty clear: keep in touch, keep it personal, keep clients happy.

© 2011 Beverly Michaelis

Beverly Michaelis received a J.D. from the Northwestern School of Law at Lewis & Clark College and is a member of the Oregon State Bar, Oregon Trial Lawyers Association, and American Bar Association. With over 25 years’ experience in the legal field, Ms. Michaelis provides confidential practice management assistance to attorneys to reduce their risk of malpractice claims, enhance their enjoyment of practicing law, and improve their client relationships. She blogs at Oregon Law Practice Management, where this post originally appeared on August 29, 2011.

Tenth Circuit: Padilla Is a New Rule of Constitutional Law But Does Not Apply Retroactively to Cases on Collateral Review

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hong on Tuesday, August 30, 2011.

The Tenth Circuit denied Petitioner’s application for certificate of appealability and dismissed the appeal. Petitioner is a citizen of South Korea and was a permanent legal resident of the United States. In September 2007, he pleaded guilty to one count of conspiracy to possess with intent to distribute and to distribute ecstasy, marijuana, and hydro-marijuana. He was sentenced to 37 months’ imprisonment and did not file a direct appeal. He was subsequently placed in immigration removal proceedings, which determined he was subject to removal from the United States because of his drug conspiracy conviction.

Petitioner then filed a motion under 28 U.S.C. § 2255 seeking to vacate his conviction and sentence as well as to withdraw his guilty plea on the grounds of ineffective assistance of counsel. He alleged his counsel failed to advise him of the immigration consequences of his guilty plea. In support, he cited Padilla v. Kentucky, 130 S. Ct. 1473 (2010), wherein the Supreme Court held that “before a non-citizen criminal defendant enters a guilty plea, his counsel has a duty under the Sixth Amendment to inform him ‘whether his plea carries a risk of deportation.’” The district court denied Petitioner’s § 2255 motion as untimely because “(1) it was filed outside the one-year statute of limitations period under § 2255(f)(1), and (2) Padilla was not a new rule of constitutional law and did not apply retroactively to cases on collateral review, so § 2255(f)(3) did not provide the correct starting date for the statute of limitations.” This appeal followed.

The Court concluded that “Padilla did not announce a new watershed rule of criminal procedure that affects the fundamental fairness and accuracy of a criminal proceeding. It is not within either of the extremely narrow Teague exceptions,” either, which would allow for retroactive application. “Therefore, Padilla is a new rule of constitutional law but does not apply retroactively to cases on collateral review.” Petitioner’s motion must be considered untimely then because it was not filed within one year of his conviction becoming final.

Tenth Circuit: Habeas Petition Dismissed as Untimely and Lacking Extraordinary Circumstances Justifying Equitable Relief

The Tenth Circuit Court of Appeals issued its opinion in Sigala v. Bravo on Tuesday, August 30, 2011.

The Tenth Circuit denied Petitioner’s application for certificate of appealability and dismissed the appeal. Petitioner was convicted of first-degree murder, armed robbery, tampering with evidence, and conspiracy; having no success with appeals and habeas relief in state courts, he turned to the federal courts. The petition came before a magistrate judge, who recommended it be dismissed with prejudice because it was filed several years after Petitioner’s conviction became final. The district court adopted the recommendation and dismissed the petition.

The Court agree with the lower courts’ decisions. Petitioner failed to meet his burden of showing extraordinary circumstances justifying equitable relief. And since his habeas petition was otherwise untimely, no reasonable jury could conclude the dismissal of the petition was incorrect.

Tenth Circuit: Conspiracy to Traffic Meth Sufficiently Proven and Venue Proper; No Variance Between Indictment and Trial Facts

The Tenth Circuit Court of Appeals issued its opinion in United States v. Acosta-Gallardo on Tuesday, August 30, 2011.

The Tenth Circuit affirmed the district court’s conviction. Petitioner was convicted of conspiracy to traffic in methamphetamine and using a telephone to facilitate a felony drug offense. Petitioner appeals his conviction, alleging a variance between his indictment and the facts proven at trial, a Brady violation, improper venue, and that insufficient evidence was presented to sustain his conviction for alleged trafficking in methamphetamine.

The Court disagreed with all of Petitioner’s contentions. First, the Court found that no variance occurred because the facts proven at trial were the same as those alleged in the indictment. Second, to succeed on his claim under Brady v. Maryland, 373 U.S. 83 (1963), Petitioner must demonstrate that the prosecution suppressed evidence, that the evidence was favorable to him, and that the evidence was material; Petitioner failed to prove these factors. Third, even assuming that Petitioner never set foot in the District of Wyoming, viewing the evidence in the light most favorable to the jury verdict, ample evidence was introduced showing that acts in furtherance of the conspiracy were committed there, making venue proper. Fourth, a conspirator need not know of the existence or identity of the other members of the conspiracy or the full extent of the conspiracy; the evidence need only show that a conspirator has at least a general awareness of both the scope and the objectives of the conspiracy. Such evidence was presented at trial.

Tenth Circuit: Bureau of Indian Affairs Properly Denied Land Transfer Application to Protect Long-Range Interests of Reserve and Prevent Fractionation

The Tenth Circuit Court of Appeals issued its opinion in Miami Tribe of Oklahoma v. United States on Tuesday, August 30, 2011.

The Tenth Circuit vacated the district court’s decision and remanded for further proceedings. A member of the petitioner tribe wanted to transfer to Petitioners a portion of his property interest in the Maria Christiana Reserve No. 35, where the tribe has plans to develop gaming facilities. Federal law and restrictions on his fee interest required the Bureau of Indian Affairs (BIA) to approve any transfer. Citing concerns regarding fractionation of the land interests in the Reserve as well as the long-range best interests of Reserve landowners, the BIA denied the application to transfer the land. Petitioners challenge that decision.

The Court held that the BIA properly exercised its discretion in denying the application. The BIA’s denial of the land transfer application was a valid exercise of its administrative discretion. It was neither arbitrary nor capricious for the BIA to conclude the partial transfer of the property interest to the tribe was not in his or other Reserve landowners’ long-range best interests and would increase fractionation of the Reserve.

Tenth Circuit: District Court Cannot Rely on Rehabilitative Goals in Imposing Prison Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Cordery on Tuesday, August 30, 2011.

The Tenth Circuit remanded to the district court for resentencing. Petitioner pleaded guilty to one count of armed bank robbery. The United States Sentencing Guidelines recommended a sentencing range of 51-63 months’ imprisonment and, after considering arguments from both parties, the district court imposed a sentence of 56 months. The court explained this decision was based on several of the sentencing factors, including the goal of deterrence and the serious nature of the crime. The court also commented that part of the reason for imposing that sentence was to take into account the amount of time that is required for Petitioner to qualify for a prison drug treatment program. Petitioner challenges his sentence on appeal, arguing that the district court’s consideration of rehabilitative goals in extending his term of imprisonment violated 18 U.S.C. § 3582(a), which instructs the court to “recogniz[e] that imprisonment is not an appropriate means of promoting correction and rehabilitation.”

After oral argument in the case, the Tenth Circuit issued an opinion in a different case concluding that a district court cannot rely on rehabilitative goals in imposing a term of incarceration. United States v. Story, 635 F.3d 1241 (10th Cir. 2011). The Supreme Court also reached the same conclusion recently in Tapia v. United States, 131 S. Ct. 2382 (2011). As such, the Court remanded to the district court for resentencing without reliance on rehabilitative goals.

Tenth Circuit: Unpublished Opinions, 8/30/11

On Tuesday, August 30, 2011, the Tenth Circuit Court of Appeals issued five published opinions and eleven unpublished opinions.

Unpublished

United States v. Landry

United States v. Robinson

Rhodes v. Medina

Selectman v. Zavaras

The SCO Group, Inc. v. Novell, Inc.

United States v. Earley

United States v. Powell

Pabst v. McKune

Washington v. Colorado State University

United States v. Medina-Gonzalez

Miskovsky v. Jones

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

John Grimley: Your Legal Business Development Plan Should Fit on a Single Sheet of Paper

A successful legal business development plan – whether for a solo practitioner, a legal practice group, a global law firm, a regional mid-size law firm, a senior level partner seeking to grow a 7 figure book of business into an 8 figure book of business – or anyone else who practices law – can be outlined on a single sheet of paper, and it would look like this:

  1. Focus on sales.  The most direct avenue from you to your prospective client – is the best avenue to take.
  2. Focus on expanding the number of prospective clients you are selling to every day.
  3. Identify and contact new prospective clients every day
  4. Work on advancing the ball with each prospective client on a daily basis.
  5. Review your lead list every day, update it, and begin selling again the next day.
  6. Be flexible when pricing your services.
  7. Offer services that meet the commercial needs of clients.  Update your service offer to meet the market.
  8. Be persistent, patient – and over time, your practice and income will grow beyond your expectations.
John Grimley specializes in assisting lawyers and other professional service providers create and implement comprehensive domestic and international business development initiatives. A licensed American lawyer, Mr. Grimley formerly served as a writer in the Executive Office of the President in the White House. He blogs at legalbusinessdevelopment, where this post originally appeared on August 26, 2011.

Volunteer Attorneys Needed for Mock Congressional Hearings

On Thursday, October 13, 2011, mock congressional hearings will be held at Noel Middle School middle school in Denver, and volunteer attorneys are needed to help judge the proceedings.

A Congressional Hearing is a meeting or session of a Senate, House, Joint, or Special Committee of Congress, usually open to the public, to obtain information and opinions on proposed legislation, conduct an investigation, or evaluate/oversee the activities of a government department or the implementation of a Federal law. In addition, hearings may also be purely exploratory in nature, providing testimony and data about topics of current interest, and to obtain opinions on those issues.

Students prepare investigative responses to questions dealing with the major concepts concerning our government.  Volunteers for the event will be given training and prep materials – no prior experience is required.

Attorneys available to judge should report to Rachel B. Noel Middle School, 5290 Kittridge St., Denver, Colorado 80239, at 7:15 for orientation. Judging will take place from 7:45 to 9:45.

Please contact cgravit@cobar.org for more information or to volunteer.

Denver Attorney Kenneth Eichner Publishes First Novel: D.A. Diaries

Local attorney and author Kenneth F. Eicher published his first novel this summer. D.A. Diaries is set in the courtrooms of our nation’s Capitol and explores the explosive combat zone of urban trial law through the eyes of Clay Franklin, an experienced homicide prosecutor. A high-profile murder trial is assigned to Clay, who is equally dedicated to chasing women as bringing criminals to justice. As Clay confronts his new assignment, he reconnects with the woman of his dreams and struggles unsuccessfully to keep his demons at bay. His efforts are further threatened when witnesses go silent and a corrupt clan of police officers seeks to protect the prime suspect – and Clay’s own indiscretions continue to plague the superstar of the homicide unit.

The author has worked as a prosecutor and defense attorney for the past thirty years. He is principal of The Eichner Law Firm and has tried over 135 jury trials, including a number of high-profile cases. He earned his law degree from the Antioch School of Law in Washington, D.C. and has lectured in trial advocacy at the University of Denver and Georgetown University. He has been published in The Colorado Lawyer, The Washington Post, and The Huffington Post and his cases have been covered by The Washington Post, The Rocky Mountain News, The Denver Post, and 60 Minutes. Eichner lives in Denver, Colorado, with his wife, Janjuree, and daughter, Kinaree.

Read an excerpt from the novel below, and click here for more information about the book and author.

DA Diaries Excerpt