September 22, 2017

Archives for August 1, 2012

The Perils of the Video-Conference Deposition

The video-conference deposition itself sounds like a great idea. After all, we were supposed to have flying cars and robot maids by now.  However, the reality of video-conference deposition reveals many, many challenges.

The first and most obvious challenge is the technology. Through trial and error, I would always suggest using a court reporter’s office, which should be properly equipped to handle the video feed. The onus is therefore on the hired court reporting firm to have working equipment. Otherwise, should you use your own conference room and your Internet goes out, everyone looks at you.

The second challenge is the materials. Some fact witness depositions sail through without any marked exhibits.  Most expert and party depositions contain many marked exhibits. Therefore, the video-conference deposition requires some advanced planning. This challenge is magnified in video-conference depositions of expert witnesses. Essentially, you have to scan and copy your expert’s entire file the week prior to the deposition and mail (or cloud upload) copies in advance. Not only is the manual labor extensive, but often your experts do not have everything prepared a week in advance of the deposition.

The third challenge is the deposition itself. We can get to the moon, but we cannot figure out how to eliminate a delay on a video-conference. Therefore, you have to adjust your rhythm of asking questions. Slow down.

The fourth challenge is the lack of the interpersonal contact. There is something more commanding about being present in the room in front of your deponent. Video can cloud body language and, more concerning, can hide attorney assistance.

In my humble opinion, I think the technology is still a few years away. In the interim, video-conference depositions can be useful for lower-level fact witnesses. If you are deposing a party or an expert, I recommend being in the room.

Chad Lieberman served as lead trial attorney for a commercial litigation firm located in Chicago from 2005 through late 2010. He handled lawsuits involving contract disputes, personal injury, insurance related issues, product liability matters, construction defects, and real estate. Since moving to Colorado in 2010, he practices in state and federal courts throughout Illinois and Colorado, primarily in product liability and commercial litigation. He is also the new editor/promoter-in-chief of the SOLO in COLO blog, where this post originally appeared on July 20, 2012.

Judge Robert Russel to Resign from the Colorado Court of Appeals

The Colorado Supreme Court Nominating Commission invites qualified attorneys to apply for a vacancy on the Colorado Court of Appeals that will be created by the resignation of the Honorable Robert M. Russel on November 3, 2012. The Commission will meet on September 24-25 to interview and select nominees for appointment by Governor Hickenlooper to the Court of Appeals.

Judge Russel was appointed to the bench on January 30, 2004.

Eligible applicants for appointment to fill the vacancy must be qualified electors of the State of Colorado and must be admitted to the practice of law in Colorado for five years. Applications must be received by Tuesday, August 28, 2012. The appointed judge will serve an initial provisional term of two years and then until the second Tuesday in January following the next general election. If retained in the general election, judges serve eight-year terms.

Further information about applying for the vacancy is available here from the Colorado Judicial Branch.

Trisha Harris: Preparing for Owner Inspection of HOA Emails

In today’s electronic age, many boards have flurries of e-mails flying back and forth about a wide range of association-related topics. As we have discussed in previous blogs and articles, when HB 12-1237 goes in to effect on January 1, 2013, owners will be entitled to inspect board e-mails that relate directly to decisions made by the board outside of a meeting, whether by e-mail, written resolution, phone, etc. This raises the practical questions of how boards should determine which e-mails to save, how to retain such e-mails, and other related issues. The following are some practical pointers to help your board to comply:

  • If your association has a manager, one option is to copy your manager on all such e-mails and have your manager save them electronically or print them out and keep them in a physical file. This may not be something that is currently addressed in your management company contract. In such case, the board and the management company may need to re-negotiate the contract to include this service. If your manager does undertake this role, your records retention policy will need to be revised to reflect that responsibility for the manager. If your association does not have a manager, this retention role can be filled by your secretary.
  • Set up a Google or Yahoo group for the board to use to communicate. This will keep e-mails centralized in one place, allow for storage of the e-mails, and allow for group members to change as board members change.
  • Have board members set up a separate e-mail account for board business, which is separate from their regular personal or business e-mail address. The e-mail addresses could be tied to certain positions, such as president@abchoa.com, which could then be transferred to new board members as board members change. By doing so, owners will always have a consistent and stable list of e-mail addresses, which will reduce confusion and lost communication when there are changes on the board. Having designated board member e-mail addresses separate from individual board member’s personal or business e-mail addresses will also help to protect attorney-client privileged communications to the board.  Often, a board member will share a personal e-mail address with his or her spouse. E-mails that go to that address may be viewed by non-board members, so having a designated board-business e-mail address can help to keep such communications confidential with just board members. Also, if a board member is served with a subpoena for his or her e-mails, not only will the e-mails related to board business be subject to it, but all other e-mails sent and received from that account could also be discoverable.
  • Keep decisions outside of a meeting to a minimum. As much business as possible should be done in open meetings. Limit decisions outside of a meeting to urgent situations where the board cannot call a special meeting nor wait until the next board meeting to discuss the issue.
Trisha K. Harris is a partner at HindmanSanchez and is inspired by the impact that community association law has on so many people. Her philosophy in representing associations is to help them by giving them tools to make good decisions and promoting the positive aspects of association living by blending the social and business aspects together to produce strong communities. She contributes to her firm’s blog, where this post originally appeared on July 26, 2012.

Running Past Our Limits (Part 4 of 6)

[If you haven’t read Parts 1-3, I suggest you go back and do it. This will make more sense. They’re short. We’ll wait.]

Winter became spring, and I didn’t have a date for my marathon, but when I started running 12, then 15, then 18 miles, I knew it must be getting close. I did have a time goal: three hours. That’s just under seven minutes per mile. From what I can tell, three hours is a dividing line for marathoners, the level where you’re starting to get serious. One day I ran 8 miles at that pace, took a break and ran 7 more. “You could run all day at that pace,” I heard Coach say, and I knew he was right.

Coach had started showing up not during my workouts, like he used to, but on the way over to Bally. We’d discuss goals and plans for the day, and I’d almost always hit them on the nose, no matter how aggressive they were. There were still days when I had to quit early, but fewer.

I thought I might do my marathon the same weekend as the Colfax Marathon in May, so I looked up last year’s winning time for someone my age, and it was just under 3 hours. Right on target. But then on the last Sunday in April I woke up, and I just knew. Today was the day. I didn’t tell my wife when I left for Bally. I was afraid to jinx it, I guess.

I did the first 10 miles faster than my target pace, but when they were over I had lost all feeling in my ankles and feet. I had to stop to stretch and massage and fill up my water bottle. I wanted to do the next 8 miles in a single stretch, but had to stop halfway for more water and more stretching and massaging. The bottom half of my legs were swollen, one of my hamstrings kept cramping, and the places where I had some fractures were aching. It didn’t look good.

I finished the first 18 and sat for awhile, kicking my feet and trying to get the feeling back, wondering if I was done. And then there was Coach’s gentle voice. “Think you could get back on and go a little further?” My answer was “No!” And then I got back on.

I’d hit the infamous Wall that marathoners talk about. I lasted the next 2½ miles on sheer guts, got off and staggered over to sit down. No way. Again the voice. “Think you could go further?” I did a mile and a half, and got off again. I was done. It was over. I had no feeling below my knees, my ankles and calves looked like Elephant Man. Again the voice. I did another 1.2 miles, at one point looking down at the read-out on the machine to see that I hadn’t lost that much pace. Amazingly, my three hour goal was still possible. Too bad finishing wasn’t.

It didn’t matter that Coach insists on believing that whatever I want to do is possible. He was wrong this time. Impossible obviously had won. I was 23.2 miles into a marathon, and no matter how many times Coach asked me to keep going, it wasn’t going to happen. Even if I could’ve found the will, finishing was physically impossible. My body was in full rebellion. It wasn’t going anywhere.

I sat there in total defeat, and all I could think was, “I’m 3 miles from the finish line! I just can’t quit now!” In a fog of defeat, I got up and dragged myself back to the machine. I picked up my first leg with both hands and put it on one of the pedals, then dragged the second foot up.

[To be continued]

Five years ago, Kevin Rhodes left a successful 20+ years career in private practice to pursue a creative dream. He recently reopened his law practice, while continuing to write (screenplays and nonfiction) and lead workshops on change for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. His latest workshop, Life in the Gap: Getting Over Your Inspiration Hangover and Translating Inspiration into Action, was held April 10, 2012. Watch for another program in the near future. This post originally appeared on his blog on July 11, 2012.

Tenth Circuit: Grand Jury Proceedings Fundamentally Fair Because Petitioner Could Comprehend Questioning and Communicate Adequately

The Tenth Circuit Court of Appeals published its opinion in United States v. Hasan on Tuesday, July 31, 2012.

The Tenth Circuit affirmed the district court’s conviction. The Tenth Circuit has reviewed these proceedings twice before. “In 2005, Petitioner was convicted after a jury trial on three counts of perjury before a grand jury. The conviction was appealed and remanded because [the Court] concluded that Petitioner may not have been able to communicate effectively in English in violation of the Court Interpreters Act. [It]remanded to the district court so the court could make findings related to [Petitioner]’s comparative ability to understand the grand jury proceedings. After remand, [Petitioner] again appealed, this time arguing the court had not adequately followed [the Tenth Circuit’s] directions spelled out in Hasan I. [The Court] agreed, leading to a second remand for more specific findings. The district court then entered additional findings and conclusions, based on its review of the grand jury transcripts and its observations of the trial proceedings, that [Petitioner] could sufficiently comprehend and communicate in English at the grand jury proceedings, and that whatever linguistic limitations he had were not so great as to make the proceedings fundamentally unfair. The question presented in this appeal is whether the district court’s findings and conclusions satisfy [the Tenth Circuit’s] directions in Hasan I and Hasan II.”

The Court concluded the district court did satisfy the directions handed down from the prior two appeals. “Based on its conclusion that [Petitioner] could comprehend the questioning at the grand jury hearing and communicate adequately, the district court did not err in finding the grand jury proceedings fundamentally fair.”

Tenth Circuit: Unpublished Opinions, 7/31/12

On Tuesday, July 31, 2012, the Tenth Circuit Court of Appeals issued one published opinion and ten unpublished opinions.

United States v. White

United States v. Walters

United States v. Carrillo-Torres

Polite v. Miller

Tilley v. Fish

United States v. Barnett

Crisler v. Sedgwick County, Kansas

Broades v. Rudek

Eke v. CaridianBCT, Inc.

United States v. Valdez

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