November 23, 2017

Archives for November 2011

Tenth Circuit: Excluding Testimony Harmless Due to Strong Evidence of Guilt and Inconsistencies in Excluded Testimony that Was Otherwise Highlighted

The Tenth Circuit Court of Appeals issued its opinion in United States v. Irving on Tuesday, November 29, 2011.

The Tenth Circuit affirmed the district court’s convictions. Petitioner was convicted of one count of witness tampering for his part in a murder-for-hire scheme directed at killing a local law enforcement officer prior to that officer testifying against him. He also was convicted of one count of possession of crack cocaine with intent to distribute. Petitioner was sentenced to 360 months in prison, followed by eight years of supervised release. He appealed his conviction, raising five claims: “(1) the indictment failed to charge a crime; (2) the indictment was duplicitous; (3) there was insufficient evidence introduced at trial to support his convictions; (4) the district court abused its discretion in excluding the testimony of a defense witness who was present in the courtroom in violation of the Rule of Sequestration; and (5) the district court abused its discretion in admitting testimony from the target of the murder-for-hire scheme regarding his role in an earlier investigation and prosecution of [Petitioner].”

Because the Court rejected Petitioner’s codefendent’s argument that the interplay between “attempt” and “conspiring” in the indictment resulted in the government’s failure to charge a cognizable federal offense, the Court was precluded from reconsidering the issue. Similarly, the duplicitous indictment argument was already rejected as to Petitioner’s codefendent, and was not reconsidered. The Court also found that there was indeed sufficient evidence to support his convictions and that Petitioner was therefore not entitled to relief. Additionally, “given the strong evidence of guilt that exists in this instance, and the inconsistencies in [the excluded] testimony that had otherwise been highlighted by the government, [the Court] conclude[d] that the district court’s error [in excluding the testimony] was harmless.” Lastly, the Court agreed with the government that the district court did not abuse its discretion in determining that the challenged testimony would not result in unfair prejudice to Petitioner.

Tenth Circuit: Employment Age Discrimination Claims Filed Beyond Limitations Period; Ledbetter Act Not Applicable

The Tenth Circuit Court of Appeals issued its opinion in Almond, III v. Unified School Dist. #501 on Tuesday, November 29, 2011.

The Tenth Circuit affirmed the district court’s decision. Petitioners were employed by Respondent school district. Facing budget restraints, their positions were eliminated, but both accepted other positions with decreased pay taking effect in two years. Upon the two year mark when their pay decreased as agreed upon, Petitioners filed suit alleging unlawful age discrimination. However, the district court determined that Petitioners had waited too long to seek administrative review — and that the delay had the effect of barring their lawsuits altogether.

While Petitioners’ appeal of the district court’s summary judgment decision was pending, Congress passed the Ledbetter Act – a law specifically aimed at effecting changes to limitations law in the employment discrimination field. “To allow the district court the opportunity to consider whether the Act rescued [Petitioners]’ claims, rendering their otherwise untimely claims timely, the parties agreed to dismiss the appeal. In the end, though, the district court concluded that the Act offered the [Petitioners] no help and now the case is back on appeal.

The Court considered the timeliness of the Petitioners’ claims in light of both preexisting law and the Ledbetter Act. The Court found that “whether the adverse consequences flowing from the challenged employment action hit the employee straight away or only much later, the [300-day] ‘limitations period normally commences when the employer’s decision is made’ and ‘communicated’ to the employee;” Petitioners both filed their claims outside that window. Additionally, “by its express terms, the [Ledbetter] Act applies only to claims alleging ‘discrimination in compensation’ — or, put another way, claims of unequal pay for equal work.” The Petitioners did not bring such claims and so the Ledbetter Act does not apply to their situation.

Tenth Circuit: Unpublished Opinions, 11/29/11

Finalists Selected to Fill Judgeship on Sedgwick County Court

The Thirteenth Judicial District Nominating Commission has nominated three candidates for a Sedgwick County Court judgeship created by the retirement of the Honorable Max E. Carlson, effective February 3, 2012.

The nominees for the bench are Lori Hulbert of Sterling, and Dana LaBarr and James Wittler, both of Julesburg. All finalists were selected by the Committee on Monday, November 28, 2011.

Under the Colorado Constitution, Governor Hickenlooper has until December 14, 2011 to appoint one of the nominees as County Court Judge for Sedgwick County.

Comments regarding any of the nominees can be emailed to the Governor’s Office.

Important Changes to the Federal Rules of Bankruptcy Procedure Effective in December

Editor’s Note: CBA-CLE will be holding a program covering these important changes to the Bankruptcy Procedure Rules on Wednesday, November 30th before the rules go into effect. Every attorney practicing bankruptcy law must understand the new rules to avoid sanctions for failing to timely and completely comply with the new requirements. Click here for more information.

On December 1, 2011, several Federal Rules of Bankruptcy Procedure changes will go into effect. Some of the new rules are also accompanied by revised forms. The U.S. Bankruptcy Court for the District of Colorado requests that practitioners pay particular attention to changes to Rule 3001 and the addition of Rule 3002.1, which relate to proofs of claims and supplements that are required in applicable individual debtor cases.

In order to implement the new rules and forms, there will be additional filing events added in the online case filing/ECF system:

  • Notice of Mortgage Payment Changes – Form B 10 (Supplement 1)(12/11)
  • Notice of Postpetition Fees, Expenses, and Charges – Form 10 (Supplement 2)(12/11)
  • Notice of Final Cure Mortgage Payment
  • Response to Notice of Final Cure Payment
  • Motion to Determine Mortgage Fees and Expenses Motion to Determine Final Cure and Mortgage Payment Rule 3002.1.

Further information about changes to bankruptcy forms can be found here.

CBA-CLE invites anyone interested in getting more information about the changes to Rules 3001 and 3002.1 to attend a program covering the new rules on November 30, 2011. The presentation will focus on the changes to the forms and rules affecting proofs of claims filed by secured creditors on the principal place of residence of debtors, including the information required in the initial proofs of claims, supplements, the all-important timelines of supplements, and the final cure payment. Registration information is provided below.

CLE Program: Federal Rules Changes on Secured Proof of Claims

This CLE presentation will take place on Wednesday, November 30. Participants may attend live in our classroom or watch the live webcast.

If you can’t make the live program or webcast, the program will also be available as a homestudy in two formats: video on-demand and mp3 download.

[UPDATED] Corporate Practice Update: Patent Reform, Social Media Policy, and Tax Topics for Privately-Held Businesses

The America Invents Act, which was signed into law this fall, is the first major overhaul of our nation’s patent law in almost 50 years. Among its many significant provisions, the Act will change the United States patent system from “first-to-invent” to “first-to-file,” aligning the United States with the international standard. New procedures will be also established for third-party challenges to patent and applications, and changes will be made regarding who can file, when they can file, and what prior art can be used against them.

The Corporate Practice Update Series has been postponed.

The effects of the changes will be of particular importance for corporate counsel and privately held businesses, and will be discussed at a CLE program on December 7, 2011 as part of the Corporate Practice Update Series. Along with these developments, the Privately Held Businesses program will cover other issues, including legal issues in social media, social media policy for a privately-held company, and tax topics for small businesses.

The program is being presented by some of Colorado’s leading business entity experts:

  • Fern O’Brien, Esq.
  • Henry Smith, Jr., Esq.
  • Liane Heggy, Esq.

And, don’t miss the other great sections of the Corporate Practice Update Series, covering the Civil Access Pilot Project, Business Entity Update, Securities, Franchises, M&A, and Ethics.

Immigration Law: DHS – Pilot Project for Deportation Case Review in Denver

Editor’s Note: The new CBA-CLE book Immigration Law for the Colorado Practitioner is now available for purchase. In addition to federal laws and regulations, lawyers must understand specific Colorado immigration laws and policies being implemented, and how they can affect their clients. This comprehensive reference covers an incredible range of practice issues, providing the necessary orientation, analysis, and authorities. It’s a new “must have” for the Colorado general practitioner, lawyers who focus their practice in areas that overlap with immigration law, as well as for lawyers who focus exclusively on immigration law. Click here for more information and to order.

The Department of Homeland Security will conduct a review of all pending deportation cases around the country to conduct a triage of the courts’ overwhelmed dockets. The review is intended to focus resources on deporting those who have committed serious crimes or pose national security risks.

The review will include six-week pilot projects in the immigration courts in Denver and Baltimore. During the pilot projects, teams of immigration agency lawyers will evaluate each case pending before those courts. Those cases which are not determined to fit with the government’s priorities may be administratively closed but will not be dismissed. The fact that a person’s case is administratively closed will not entitle him to any work permit or any other immigration status. Additionally, the administratively closed deportation case can be reopened in the future at any time the government chooses.

Click here to see the New York Times article on the review of deportation cases.

Aaron Hall is an associate attorney at the Joseph Law Firm and focuses his practice on immigration law. Aaron contributes to the Immigration Issues blog, where this post originally appeared on November 17, 2011.

Coach’s Corner: What Is a Successful Lawyer?

Develop the Right Perspective

Successful lawyers tend to work long hours and are focused and passionate about what they do. But in the effort to excel, made more intense by the pressure of economics, trying too much to succeed can cause problems for lawyers. Those who don’t have the right perspective can see their striving for success become counterproductive.

Our Success Motivation

Success is not just a matter of hard work – the thought of 2,000 or more billable hours a year proves that. But the billable hour is only a method of accounting; it is not the reason for working long hours. Our success motivation comes from loving what we do, from wanting to help people and from needing to take care of our families and ourselves.

A Checklist for Success

So, in this context, what is a successful lawyer? The answer lies, not in earning more money or racking up more billable hours, but in moving your professional life down as many of these paths as possible.

  • Do what you love. Passionate, satisfied attorneys perform better, feel better about their careers and themselves. Attorneys who are not happy need to refocus.

  • Put the client first, by treating every client like your only client. Grateful and appreciative clients will always be there for a committed lawyer.

  • Think like an owner. Everything that occurs in the firm’s day-to-day operation important and a focus on increasing revenues and profits is a sure recipe for personal success.

  • Be a problem-solver. Instead of just reacting or being busy with immediate concerns, look ahead for solutions to future problems.

  • Never stop learning. That means going beyond the minimum CLE requirements and continuing to learn new trends and update old thinking.

  • Develop business competency so you can speak the language of your business clients. Presenting advice in this language builds the client’s trust and confidence.

  • Treat colleagues as clients and integrate your practice with others in the firm to benefit from the variety of relationships that they have with the outside world.

  • Make yourself invaluable to clients. If you go the extra mile, providing the service they need and anticipating their problems, you will always compete successfully for their business.

Treat Everyone With Respect

A final thought is implicit in traveling each path. Treat everyone – clients, colleagues and contacts alike – with the same civility and respect you wish to receive. The truly successful person never has to worry about the comments made by others when out of earshot.

Ed Poll is a nationally recognized coach, law firm management consultant, and author who has coached and consulted with lawyers and law firms in strategic planning, profitability analysis, and practice development for over twenty years. Ed has practiced law on all sides of the table and he now helps attorneys and law firms increase their profitability and peace of mind. He writes the LawBiz® Tips E-zine, where this post originally appeared on September 20, 2011.

Colorado Supreme Court: Week of November 27, 2011 (No Opinions)

The Colorado Supreme Court issued no opinions for the week of November 27, 2011.

Tenth Circuit: No Opinions, 11/28/11

On Monday, November 28, 2011, the Tenth Circuit Court of Appeals issued no opinions.

Colorado Court of Appeals: California Jury Findings Decided Issues Identical to Present Case; No Causal Relationship Between Alleged Misrepresentation and Losing Money on Contract

The Colorado Court of Appeals issued its opinion in Bristol Bay Productions, LLC v. Lampack on November 23, 2011.

C.R.C.P. 12(b)(5) Dismissal Based on Issue Preclusion.

Bristol Bay Productions , LLC (Bristol Bay) appealed the district court’s judgment dismissing its tort action against defendants Peter Lampack and Peter Lampack Agency, Inc. (collectively, Lampack), Simon & Schuster, Inc., and Penguin Group USA, Inc. (Penguin). The judgment was affirmed.

Bristol Bay was the producer of a movie based on one of Clive Cussler’s “Dark Pit” adventure novels. Lampack was Cussler’s literary agent, and Simon & Schuster and Penguin were two of Cussler’s publishers.

Bristol Bay and Cussler sued each other in California over the failure to create a commercially successful movie. During discovery, Bristol Bay learned that Cussler had sold 40 million books, not the 100 million Bristol Bay had been led to believe. Bristol Bay added claims of deceit against Cussler, alleging losses in excess of $50 million.

Several weeks later, Bristol Bay filed this action in Colorado based on nearly identical allegations as in the California case. Bristol Bay later amended the complaint to add Simon & Schuster and Penguin, based on allegations that they misrepresented Cussler’s readership, as well as the number of books in print and the number of books sold.

The California jury returned verdicts in favor of Cussler on Bristol Bay’s deceit claims. The Colorado court stayed its proceedings pending an appeal of the California case. The California Court of Appeals affirmed the judgment and the Colorado court granted, on issue preclusion grounds, defendants’ C.R.C.P. 12(b)(5) motion to dismiss the complaint. Bristol Bay appealed and the Colorado Court or Appeals affirmed.

Issue preclusion bars relitigation of a legal or factual matter already decided in a prior proceeding when four conditions are met. In this case, only one element was in question; namely, whether the issue sought to be precluded was identical to an issue actually and necessarily determined in a prior proceeding. Bristol Bay argued that the district court erred in determining that the California jury’s findings on misrepresentation, reliance, and causation precluded it from proceeding in Colorado against Lampack and the publishers.

The Colorado Court of Appeals found that the California jury’s findings precluded Bristol Bay from proceeding against Lampack because it decided, adversely to Bristol Bay, three issues identical to those present in the Colorado case. The Court further held that because the jury found there was no causal relationship between the alleged misrepresentation and Bristol Bay’s losing money on the contract and the movie, Bristol Bay was precluded from arguing that reliance on anyone’s misrepresentation about the number of Cussler’s books sold caused its losses.

Bristol Bay also argued that the case could only have been disposed of in the manner chosen as a summary judgment motion, not for failure to state a claim. The Court disagreed. The Court noted that affirmative defenses may be disposed of through a C.R.C.P. 12(b)(5) motion when the allegations of the complaint reveal that the claim is, as a matter of law, barred, or where no prejudice results to the plaintiff. Bristol Bay argued that it was prejudiced under Rule 12(b)(5) because attorney fees must be awarded when tort cases are so dismissed. The Court was not persuaded. The judgment was affirmed and the case was remanded for awards of appellate attorney fees to Lampack and the publishers.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 23, 2011, can be found here.

Colorado Court of Appeals: Once Established, the Presumption of Paternity Founded on the Weightier Considerations of Policy and Logic Controls

The Colorado Court of Appeals issued its opinion in People in the Interest of C.L.S., and Concerning T.V. on November 23, 2011.

Paternity—Presumption—Standard of Proof—Preponderance Standard—Clear and Convincing Standard.

Husband appealed the magistrate’s order declaring T.R.S. the presumptive father of C.L.S. The order was affirmed.

Mother and husband were married when C.L.S. was conceived in early 2006. During this time, mother also had a brief, intimate relationship with T.R.S. Mother filed for dissolution of marriage later in 2006, before C.L.S. was born. Mother and T.R.S. began dating in the spring of 2007, about three months after C.L.S. was born. Genetic testing was performed a short time later. It excluded T.R.S. as C.L.S.’s biological father. However, T.R.S. acted as C.L.S.’s father, signed an acknowledgement of paternity, and added his name to the son’s birth certificate as his father.

Husband and T.R.S. each established presumptions of paternity that were not rebutted. The magistrate, after applying the relevant statutes, named T.R.S. the child’s legal father. Reviewing the magistrate’s order based on the preponderance standard, the district court upheld the magistrate’s decision.

On appeal, husband contended that the district court committed reversible error by rejecting the clear and convincing standard in favor of the preponderance standard. Husband established the presumption of paternity by way of marriage during C.L.S.’s birth and a genetic test establishing paternity. T.R.S. established the presumption of paternity by way of receiving C.L.S. into his home and holding him out as his own child and acknowledging paternity in writing.

Once presumptions are established, they may be rebutted by clear and convincing evidence. Husband successfully rebutted T.R.S.’s second presumption by showing husband did not provide written consent for T.R.S. to acknowledge the son as his child. The second step in the process occurs after the presumptions are established and have not been rebutted. According to CRS § 19-4-105(2)(a), when two or more conflicting presumptions arise, the presumption founded on the “weightier considerations of policy and logic” controls. The proper standard of proof to determine this second step is the preponderance of evidence standard. Therefore, the district court used the proper standard. The order was affirmed.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on November 23, 2011, can be found here.