April 23, 2018

Archives for April 9, 2014

The Practice of Life (Part 2): Getting Started on Getting Happy

rhodesThis series is about happiness as a success strategy. Before we go on with it, here’s a quick update on a post a couple weeks back about lawyers learning to be entrepreneurs.

Last week I attended a CLE on “How to Manage a Small Law Firm.” It’s on a sponsored national tour, and offers training in the business of law that’s more systematized and supportive that you get with DIY. The following blurb from the CLE brochure shows how its connection to our current topic of happiness:

Law firms that are well-managed make lawyers happier. Law firms that are well-managed help lawyers act in a manner more becoming a professional. Law firms that are well-managed also tend to be more profitable than those that are managed by the seat of one’s pants, especially if those pants have never sat through even a single course about how to manage a small law firm.

The company behind this offers training, events, connections, workbooks, practical help. You might check them out. And now, moving along….

The Great Recession (Really? What was so great about it?) has been officially over for years. Scores of articles like this one from the Miami Herald have reviewed its indelible impact on the legal profession. Life in the business of law has changed forever, and many lawyers and law students are still feeling the aftershocks.

One of those is the psychological condition of “learned helplessness.” Here’s how positive psychologist Shawn Achor describes it in The Happiness Advantage:

What I’ve learned from many companies I’ve spoken with over the past two years [writing in 2012] is that the meltdown of 2008 and its aftershocks had instilled a form of learned helplessness – a belief in the futility of our action – a belief in the futility of our action – in many of the world’s workers.

Learned helplessness is when we know there are things we could do to help ourselves, but we simply can’t summon the energy or resolve to execute on them. Then, once a hopeless and helpless outlook takes root in one area of our lives, it seeps over into all others. Again, from The Happiness Advantage:

And it doesn’t end [with work]. When people feel helpless in one area, they not only give up in that one area; they often “overlearn” the lesson and apply it to other situations.

How do we reverse this insidious way of thinking? Getting inspired isn’t enough. Summoning lost willpower doesn’t work either. We can post inspirational quotes on the refrigerator door all we like, but we can’t rally around them. For example this one from Jim Collins’ Good to Great:

We are not imprisoned by our circumstances, our setbacks, our history, our mistakes, or even staggering defeats along the way. We are freed by our choices.

Inspiring? Yes. True? No doubt. But helpful? Not necessarily. It’s like our self-help circuit got disconnected, and all the motivational sayings in the world can’t reconnect it. Now what? We’re sick of the pity party, we’re not about to blame a recession, we want to get moving, but how to start?

The way back begins with self-awareness that that this is a real issue for us. And it helps to know we’re not alone. This inability to help ourselves is a malaise of our times. It’s really out there, and it’s not just us. Yes, eventually we’ll need to find the resolve within ourselves to go on, but sometimes it’s just good to know we’re not alone. No need to beat ourselves up. It’s not just a personal problem – millions of workers around the world are feeling the same way. The mere thought of that gets us out of ourselves, which means we can start to deal with the issue objectively. We know how to do that; we’re on familiar ground again. There’s hope.

The Happiness Advantage gives us some specific strategies for dealing with our learned helplessness. We’ll talk about them next time.

To be continued.

Kevin Rhodes is a lawyer in private practice and a registered mentor with the Colorado Supreme Court’s CAMP program. He offers career coaching for lawyers and leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Tenth Circuit: In Consolidated Appeal, Trial Court’s Rulings Upheld as to All Defendants

The Tenth Circuit Court of Appeals issued its opinion in United States v. Morgan on Wednesday, April 8, 2014.

Tracy Morgan, Killiu Ford, and Augustus Sanford (“Defendants”) concocted an elaborate plan to rob a man, Mr. Armendariz. The plan was carried out, and Mr. Armendariz was bound while Ford and two other men questioned him about where he kept his money. His wife was confronted separately, and, after Morgan put a gun to her 3-year-old’s head, the wife gave Morgan the location of the money. Morgan found about $30,000, and the conspirators left. The three co-conspirators had arguments about how to split the money. Eventually they were arrested and tried.

All three defendants were indicted and tried together. A jury convicted them of kidnapping, conspiracy to kidnap, and possession of a firearm during a crime of violence. Each defendant brought a separate appeal, raising overlapping but not identical issues. After consideration of all the separate and collective appeals, the Tenth Circuit affirmed on all counts.

HB 14-1285: Amending Colorado Consumer Protection Act to Include Colorado Taxpayer Protection Act

On February 19, 2014, Rep. Su Ryden and Sens. Irene Aguilar & Mike Johnston introduced HB 14-1285 – Concerning a Requirement that a Professional Tax Preparer Provide Certain Disclosures to a Client When Preparing Tax Documents for the Client. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill requires a person who prepares, for a fee, an income tax return or a claim for a refund on an income tax return for a taxpayer (professional tax preparer) to make certain disclosures to the taxpayer concerning the professional tax preparer’s qualifications, fees, year-round contact information for the tax preparer or the tax preparation company, willingness to represent the taxpayer in a government audit, and obligation to sign the tax documents prepared. The bill exempts certain certified public accountants, attorneys-at-law, enrolled agents, and individuals employed by a local, state, or federal government agency from having to comply with the disclosure requirements.

The bill makes a professional tax preparer’s failure to provide a taxpayer with the requisite disclosures a deceptive trade practice, and provides the penalty scheme for the deceptive trade practice.

The bill requires the department of revenue to provide a disclosure form available on its web site and requires every professional tax preparer to provide a copy of either the department’s disclosure form or a substantially similar disclosure form to each taxpayer before commencing work on preparing the taxpayer’s income tax return or claim for refund on an income tax return.

The bill criminalizes the act of providing fraudulent information in a professional tax preparer’s disclosure form and makes the crime a class 2 misdemeanor.

The CBA Legislative Policy voted to amend the bill to exempt attorneys at law from the provisions of the act; the bill has been amended accordingly.

The bill passed out of the House on March 17 and is assigned to the Senate Finance Committee.

Since this summary, the bill was amended in the Senate Finance Committee and referred to the Senate Committee of the Whole for consideration on Second Reading.

HB 14-1279: Creating Tax Credit for Businesses for Business Personal Property Tax Paid in Colorado

On February 13, 2014, Reps. Dianne Primavera & Dave Young and Sens. Rollie Heath and Mark Scheffel introduced HB 14-1279 – Concerning the Creation of a State Income Tax Credit to Reimburse a Business for Personal Property Taxes Paid in the State. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

For five income tax years beginning on January 1, 2014, as introduced, the bill creates an income tax credit to reimburse a qualifying taxpayer for personal property taxes paid in Colorado for which the taxpayer does not already receive a state or federal income tax benefit. This is accomplished by allowing a tax credit that is equal to the taxpayer’s personal property taxes paid multiplied by a percentage equal to 100% minus the sum of the taxpayer’s federal marginal income tax rate for the year and 4.63%.

To qualify for a tax credit, a taxpayer must have $25,000 or less worth of personal property on which property taxes are paid in Colorado during an income tax year commencing in 2014, or have less than an inflation-adjusted amount for each income tax year thereafter. The amount of the credit that exceeds a taxpayer’s income taxes is refunded to the taxpayer.

The bill has been approved by the Business, Labor, Economic, & Workforce Development and Finance Committees; the bill is scheduled next to go before the Appropriations Committee.

Since this summary, the bill was amended in the Appropriations Committee and referred to the House Committee of the Whole for Second Reading.

SB 14-173: Recommending that Certain Persons be Offered a Test for the Hepatitis C Virus

On March 31, 2014, Sen. Cheri Jahn introduced SB 14-173 – Concerning the Recommendation that Certain Persons be Offered a Test for the Hepatitis C Virus. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill states that the department of public health and environment (department) recommends that each treating primary health care provider, physician, physician assistant, or nurse practitioner who treats a patient born between 1945 and 1965 in an inpatient or outpatient setting offer the patient hepatitis C screening or hepatitis C diagnostic testing unless the patient:

  • Is being treated for a life-threatening emergency;
  • Has previously been offered the testing; or
  • Lacks capacity to give consent.

If the offer is accepted and the test is reactive, the health care provider is required to offer the patient follow-up care or refer the patient for follow-up care.

The bill is assigned to the Health & Human Services.

SB 14-171: Authorizing the Colorado New Energy Improvement District to Arrange Financing for Water Conservation Fixtures

On March 27, 2014, Sen. Gail Schwartz introduced SB 14-171 – Concerning the Ability of the Colorado New Energy Improvement District to Arrange Financing for Water Conservation Fixtures. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The Colorado new energy improvement district may arrange financing, secured by a lien on the affected real estate, for the installation of energy efficiency improvements in residences and commercial buildings. The bill adds water conservation fixtures to the definition of an “energy efficiency improvement.”

The bill is assigned to the Agriculture, Natural Resources, & Energy Committee.

Tenth Circuit: The Law Does Not Require that a Defendant be Informed of All Collateral Consequences of Plea

The Tenth Circuit Court of Appeals issued its opinion in United States v. Muhammed on Wednesday, April 8, 2014.

Defendant Sevgi Muhammad was indicted on 24 counts of mail fraud, two counts of making a false statement, and one count of stealing public money. All the charges arose out of Defendant’s obtaining housing assistance through the Housing Choice Voucher Program of the United States Department of Housing and Urban Development (HUD). She pleaded no contest to one count of making a false statement. At the outset of her sentencing hearing, however, she moved to withdraw her plea. The district court later held an evidentiary hearing, denied the motion, and sentenced Defendant to serve three years of probation and pay $1,698 in restitution.

On appeal Defendant argues that her plea was not knowing and voluntary and that the district court erred when it denied her motion to withdraw the plea. She argues that her plea was not valid because she did not know (1) that a no-contest plea would have the same “attendant consequences” as a finding of guilt, Aplt. Br. at 9; (2) that the plea would result in a felony conviction and a finding of guilt; (3) that the conviction would make it difficult to obtain credit, employment, federal financial aid, and Section 8 housing; and (4) that the conviction would preclude her from firearm ownership and render her testimony in court suspect. But the law does not require a defendant to be informed of the collateral consequences of a plea, and the district court properly found that she knew that her plea would lead to a finding of guilt of the offense charged. The Tenth Circuit affirmed the district court.

Tenth Circuit: Unpublished Opinions, 4/8/2014

On Wednesday, April 8, 2014, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Mendoza Perez v. Holder

McAdams v. Wyoming Department of Corrections

United States v. Mosley

Gose v. City of Douglas, Wyoming

Wilson v. State of Oklahoma

United States v. Revels

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Chief Judge William Sylvester to Retire from District Court of Eighteenth Judicial District

On Monday, April 7, 2014, the Colorado State Judicial Branch announced the retirement of Chief Judge William Sylvester of the 18th Judicial District, effective July 1, 2014. Two additional vacancies on the Eighteenth Judicial District Court bench were created by HB 14-1050, effective July 1, 2014.

Chief Judge Sylvester was appointed to the 18th Judicial District bench in 2001, and has been Chief Judge since October 2006. Prior to his appointment, he was with the 18th Judicial District Attorney’s Office for 10 years, and was in private practice before joining the District Attorney’s Office. He received his bachelor’s degree from the University of Maryland in 1973 after a stint in the Army, and he received his law degree from the University of Georgia in 1976.

Applications are being accepted for all three vacancies. Eligible applicants must be qualified electors of the 18th Judicial District and must have been admitted to practice law in Colorado for five years. Application forms are available from Justice Coats, the ex officio chair of the 18th Judicial District Nominating Commission, and are also available on the State Judicial website. Applications must be received no later than 4 p.m. on May 7, 2014. Anyone wishing to nominate another person must do so no later than 4 p.m. on April 30, 2014.

For more information on the vacancies and the application process, click here.

Tenth Circuit: Federal Arbitration Act Requires Trial to Resolve Disputes Regarding Whether Arbitration Agreement Existed

The Tenth Circuit Court of Appeals issued its opinion in Howard v. Ferrellgas Partners, L.P. on Tuesday, April 8, 2014.

The dispute in this case was whether an agreement to arbitrate existed. It was not clear if the parties opted for or against arbitration, and the parties moved their dispute to district court, where extensive discovery and motions practice occurred. Almost a year and half after Ferrellgas filed its motion to compel arbitration, the court issued an order in which it found that material disputes of fact still prevented it from saying for certain whether or not the parties had agreed to arbitrate. But rather than proceeding to resolve the conflicting factual accounts through trial as the Federal Arbitration Act requires, the court erroneously entered an order denying arbitration outright.

The Tenth Circuit ruled that there were still disputed issues of material fact that had to be resolved in the trial court, and that the case should proceed summarily to trial. It was remanded for proceedings consistent with the opinion.

Tenth Circuit: Expert Did Not Simply Repeat Outside Information, but Formed Conclusions Based on His Experience

The Tenth Circuit Court of Appeals issued its opinion in United States v. Kamahele on Tuesday, April 8, 2014.

Mr. Eric Kamahele, Mr. Daniel Maumau, Mr. Kepa Maumau, Mr. Sitamipa Toki, and Mr. Mataika Tuai appeal their convictions arising from armed robberies and shootings in connection with the Tongan Crips Gang (“TCG”) in Glendale, Utah. In a jury trial, Mr. Kamahele, Mr. Kepa Maumau, and Mr. Tuai were found guilty of conspiring to commit a racketeering offense under the Racketeer Influenced and Corrupt Organizations Act (“RICO”), 18 U.S.C. §§ 1961-1968 (2006). Mr. Eric Kamahele, Mr. Daniel Maumau, Mr. Kepa Maumau, and Mr. Sitamipa Toki were found guilty of committing violent crimes in aid of racketeering activity (“VICAR”), 18 U.S.C. § 1959(a) (2006). Mr. Kamahele, Mr. Kepa Maumau, and Mr. Tuai were also found guilty of violating the Hobbs Act, 18 U.S.C. § 1951(a) (2006). And all were found guilty of violating 18 U.S.C. § 924(c) (2006), for using guns during their respective crimes.

All of the defendants contend the district court erred by: (1) admitting expert testimony by Mr. Break Merino about the TCG’s history, structure, and activities, and (2) denying their motions for a judgment of acquittal under Federal Rule of Criminal Procedure 29 based on the Government’s failure to prove various elements of RICO and VICAR. Four defendants also raised individual claims.

The Tenth Circuit rejected all of the individual and collective arguments and affirmed the judgments of the trial court.

Tenth Circuit: No Error for Trial Court to Deny Suppression of Fruits of Search of Defendant’s Home

The Tenth Circuit Court of Appeals issued its opinion in United States v. Pulliam on Tuesday, April 8, 2014.

Keith Scott Pulliam was indicted on charges of being a felon in possession of a firearm and being an armed career criminal. He moved to suppress the fruits of a search of his home, several firearms. Pertinent to this appeal, he claimed the application for the search warrant, issued by a state court judge, did not demonstrate probable cause and the search by state officers was unreasonably executed. After the district judge denied his suppression motion he pled guilty under a plea agreement, which reserved his right to appeal from the denial. The judge accepted the plea and sentenced Pulliam to imprisonment for 75 months. Exercising his reserved right, Pulliam appealed, and the Tenth Circuit affirmed the judgment of the trial court.

The Tenth Circuit, as well as the District Court, awarded great deference to the decision of the state court judge granting the warrant. Despite Defendant’s allegations that the informant was not trustworthy, there was sufficient evidence to the contrary for the judge to issue a warrant. Defendant also contended that the warrant was not valid on its face due to a lack of specificity as to firearms. However, because Defendant was a convicted felon, all firearms were contraband and the warrant did not need to be specific about which firearms were sought. Finally, Defendant contended that the warrant was invalid because the police officers who searched Defendant’s house failed to leave a complete copy of the warrant. The exclusion of the warrant’s attachments did not render the warrant invalid. The trial court’s judgment was affirmed.