December 12, 2017

Archives for July 31, 2014

Walking the Talk: An Interview with Judy Mares-Dixon

JudyMaresDixonJudy Mares-Dixon, M.A., is well experienced in conflict resolution. Since 1986, she has been working in the dispute resolution field as a trainer, mediator, coach, facilitator, consultant, and dispute resolution systems designer. We are honored to have Judy return to CLE for our 40 Hour Mediation Training beginning on August 11, and are excited to present an interview with Judy.

CLE: Thank you for allowing us to interview you. First, what brought you to the field of conflict resolution?

Judy: I was working full-time as a contract negotiator for the state. I really enjoyed the high-energy interaction and the relationship with customers from around the state. I’ve always been fueled by negotiations. I found out that the City of Boulder was looking for mediators to help resolve landlord-tenant and neighbor-neighbor disputes, so I went through their training course — it’s similar to the 40 Hour course I teach at CLE — and absolutely loved it. I continued working full-time for the state and would mediate for Boulder’s program at night. Some nights, I would return home at 9 o’clock or later and could not sleep because I was so charged up from the excitement of the mediation. The interaction between people who start out so far apart, and their capacity to find intelligent solutions, is fascinating to me.

CLE: What is your favorite part of doing dispute resolution?

Judy: My favorite part is assisting people who have not been able to get through their conflicts to analyze their situation and come up with smart solutions. I love being able to effectively analyze situations and find the pros and cons of a variety of ideas and really assist people in finding the best solutions for everyone, especially in situations where one or more parties think it’s hopeless. I love really thinking about what it’s going to take to solve the problem.

CLE: How do you apply the techniques you teach to your day-to-day life?

Judy: There is always an exchange in business. My colleagues and I are always looking at our projects to decide who is going to do which project, whose skills match best with the job at hand, and we negotiate. I think one of the keys to being a successful mediator is that you have to walk the talk – it is critically important to the job. I work with a small number of associates and we’ve been together for several years. The reason we work so well together and have such a fun, respectful relationship, is that we all walk the talk. We expect high quality work — we expect perfection and are hard on ourselves — but we are good at what we do because we walk the talk. It’s critically important to success as a mediator.

CLE: You mentioned situations where one or more parties think it’s hopeless. Can you share with us a story of a conflict that seemed impossible that you helped resolve?

Judy: I once did a mediation for five physicians who co-owned a practice. Two of the physicians were very senior and three were very junior — new to medicine and new to the practice. Three of the physicians had serious conflicts with each other. There were concerns as to whether everyone was doing their fair share — bringing enough business and revenue to the practice, contributing the right amount. They came to me because they were not sure if they should try to work together or if there should be a buy-out of some of the partners. They felt hopeless and frustrated to say the least — they weren’t getting what they wanted from one another. Ultimately, they decided to stay together in the practice. We developed a monthly evaluation tool so the partners could evaluate who was bringing in revenue and how the work load was shared.

One other thing they were quick to identify was how poorly they responded to conflicts. Three of them would duck and run, one would try to bring the issue to the table, and the other would get aggressive. We worked out a plan for how they could address their concerns when conflicts arise in the future, and expected time frames for resolution of future conflicts.

 

CLE is honored to have Judy return for our 40 Hour Mediation Training. Join us on August 11, 12, 13, 18, and 19 for our 40 Hour Mediation Training with renowned mediator Judy Mares-Dixon. To register, click the links below or call (303) 860-0608.

CLE Program: 40 Hour Mediation Training

This CLE presentation will take place on August 11, 12, 13, 18, and 19, 2014. Click here to register for the live program. You can also register by phone at (303) 860-0608.

Colorado Court of Appeals: Announcement Sheet, 7/31/2014

On Thursday, July 31, 2014, the Colorado Court of Appeals issued seven published opinions and 35 unpublished opinions.

People v. Marciano

People v. Pifer

People v. Aryee

People v. Nozolino

In re Marriage of Roddy and Betherum

Idowu v. Nesbitt

People in Interest of J.S.R.

Summaries of these cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

 

Hon. Nancy Moritz Sworn In as Judge on 10th Circuit Court of Appeals

On Wednesday, July 30, 2014, Chief Judge Mary Beck Briscoe of the Tenth Circuit Court of Appeals announced the appointment of Hon. Nancy L. Moritz to the bench. President Obama nominated Judge Moritz in August 2013. She was confirmed by the Senate on May 5, 2014, and was administered the oath of office on July 30 by Judge Eric Melgren of the District of Kansas. Judge Moritz’s temporary chambers will be in Lawrence, Kansas.

Judge Moritz has a distinguished career on the bench. She was on the Kansas Court of Appeals from 2004 through 2010, and was appointed to the Kansas Supreme Court in 2011. Prior to working on Kansas’ appellate courts, she was an Assistant U.S. Attorney for the District of Kansas, and was an attorney in private practice prior to that. She attended Washburn University and Washburn University Law School in Topeka, Kansas.

 

Tenth Circuit: Employee’s Untruthfulness and Abuse of Sick Leave Justified Termination Despite Qualifying for FMLA Leave

The Tenth Circuit Court of Appeals issued its opinion in Dalpiaz v. Carbon County, Utah on Friday, July 25, 2014.

Bridget Dalpiaz worked as the benefits coordinator for Carbon County, Utah, from February 1995 until her termination in September 2009. As benefits coordinator, Dalpiaz scheduled doctor’s appointments for new county employees and was very familiar with the process for taking FMLA leave. She had favorable evaluations and no disciplinary history until she was in a car accident in April 2009.

After her motor vehicle accident, Dalpiaz missed work from April 3 through July 13, 2009, and she returned on a limited basis on July 13. Because of the extended absence, her supervisor requested that she submit a request for FMLA leave and mailed her a form in May 2009. Dalpiaz did not respond and did not submit the form. The supervisor emailed Dalpiaz on June 12, requesting that she return the FMLA form as soon as possible. Dalpiaz did not respond. The county attorney sent Dalpiaz a letter on June 30, advising her that she must return the form by July 10. Dalpiaz returned the form at 4:22 p.m. on July 10. On July 13, Dalpiaz returned to work for two hours a day, two days a week, per the restrictions set by a spine specialist she saw.

While she was gone from work, her supervisor received eight written statements from coworkers that Dalpiaz was engaging in physical activities that seemed inconsistent with her claims for injury. Because of these reports, the county requested that Dalpiaz submit to an IME and gave her three physicians from which to choose for this exam. Dalpiaz never responded. The county attorney then sent Dalpiaz a letter requesting her to schedule the exam by August 3, and advising her that failure to schedule the exam may result in disciplinary action. Dalpiaz attempted to set the exam but was told she needed a referral. Instead of obtaining the referral, she sent a letter to the county attorney regarding the referral and inquiring if it was now county policy to force employees to submit to IMEs. Eventually, Dalpiaz was terminated for five reasons – (1) failure to timely complete the FMLA forms; (2) failure to schedule an IME; (3) significant evidence of untruthfulness regarding her injuries; (4) abuse of sick leave; and (5) personal use of a camera belonging to the county. Dalpiaz filed a federal complaint on six grounds, the sixth alleging the county interfered with, restrained, and/or denied her right to FMLA leave. The district court granted summary judgment to the county on all counts.

Dalpiaz appealed only the grant of summary judgment related to the interference with FMLA leave. The Tenth Circuit first determined that the type of FMLA at issue in this case was retaliation, even though Dalpiaz only pled interference in her complaint. In response to the county’s claims that Dalpiaz waived the issue of retaliation by not pleading it in her complaint, Dalpiaz asserted that she did not need to specifically claim retaliation to preserve the issue. The Tenth Circuit disagreed with Dalpiaz, remarking that nothing in her complaint referenced retaliation, and instead she tracked the language pertaining to interference.

Examining her claims under the interference context, the Tenth Circuit found that Dalpiaz was entitled to FMLA leave and the county may have taken an adverse action which interfered with her right to FMLA leave. However, as to the third prong of the interference test, whether her termination was related to the exercise of her FMLA rights, the Tenth Circuit agreed that the county would have terminated Dalpiaz regardless of her FMLA status. The Tenth Circuit noted ample evidence in the record of the county’s sincere belief in Dalpiaz’s untruthfulness regarding the extent of her injuries and abuse of sick leave. The Tenth Circuit also noted that the county was justifiably concerned with Dalpiaz’s failure to return the FMLA forms “as soon as possible” as directed by her supervisor, instead choosing to return the forms at the last minute. Dalpiaz also failed to make an IME appointment as directed and did not put forth a good faith effort to make the appointment. The evidence, taken in the light most favorable to Dalpiaz, supported the county’s termination. The Tenth Circuit affirmed the district court’s grant of summary judgment.

Tenth Circuit: Unpublished Opinions, 7/31/2014

On Thursday, July 31, 2014, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

United States v. Sturm

Fischer v. Dunning

United States v. Dotson

McKinsey v. GMAC Mortgage, LLC

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

Third Annual Running Past Our Limits Update (Part One): Time to Get Personal (Again)

rhodesThe past two years, I’ve taken a summer break from topics like lawyer career satisfaction and legal entrepreneurship, and instead have gotten personal.

The first year, I worried about doing that, but justified my departure from objectivity by telling myself I’d stumbled onto something so powerful it could change the world. Honest. I was using it to meet a challenge in my own life, but thought it was much bigger. (Actually, I still do.) The series told my story, but also talked about believing in ourselves, finding our internal “coach,” doing the impossible, and other inspiring things. A couple readers said they thought it was my best series ever.

Changing the world wasn’t the focus last year, mostly because I’d learned that the challenge I face goes by the big hairy scary name “MS.” I focused not on changing the whole world, just my world with MS. Still, getting personal was okay because there were plenty of lessons to extrapolate to other kinds of challenges, and again readers liked it.

At a recent CLE seminar, I got one of those intuitive hits to share some of my Running Past Our Limits story. My departure from the script paid off: it was an energizing moment (right after lunch!) that drew several comments on the evals.

Do something once, it’s a novelty; do it twice, it’s a tradition. So here’s the Third Annual Running Past Our Limits Update.

If you like, you can get caught up by going here for the 2012 and 2013 editions. Briefly, this adventure started because I was frustrated with what I thought was an unresolved injury rehab issue. I’d tried pretty much everything to no avail, until one day I got the idea of using an elliptical machine to reprogram my body into moving again. (Where do we get crazy ideas like that, by the way? We’ll talk about it.) In the first year, I ran several marathons on the machine, some at world record speed. By the second year, however, it was clear my rehab theory wasn’t proving true: the faster and further I ran, the less I could walk. I went to get checked out, and found out I have MS. Immediately I went into denial, determined to fight the disease (if I even had it, which I wasn’t willing to admit), and doubled down on my workouts.

And this past, third year? (Take a deep breath.) Even though I’m not in denial anymore I’m still not ready to give up, although to be honest it gets harder all the time, but there’s some cutting edge neurological research to back up what I’m doing, and in the meantime my workouts and what I’ve learned from them have turned into a whole new way of approaching life that has made it better in ways I never could have imagined, not to mention giving me all kinds of new insights I regularly use in this blog and in my workshops… and did I mention that some people have gotten inspired by what I’m doing?

Against that background, the real question for me at this point is:

And I’m supposed to be okay with that?

Seriously, am I just making lemonade because life gave me lemons, reaching for the consolation-less consolation prize I warned you not to accept in a post not long ago? And what’s the difference between conceding defeat/failure and the practice of pivoting I’ve been talking about? And how DO you move from denial to acceptance without giving up?

Good questions. Let’s tackle ’em.

Seven years ago, Kevin Rhodes left his law practice to start a creative venture. His reflections on what happened next appear in an article about law career exit strategies in the August issue of The Colorado Lawyer (here’s the introduction, and here’s the article). His new ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned, and is available as a FREE download at iTunes, Barnes & Noble, Scribd, or wherever else you normally get ebooks. Or follow this link to the distributor’s page, where it’s available as a FREE download in all formats — phone, Kindle, as a PDF, etc. You can email Kevin at kevin@rhodeslaw.com.

Three Judges to Retire from Denver County Court

On Tuesday, July 29, 2014, the Denver County Court announced the retirement of three judges – Judge Claudia Jordan, Judge Mary Celeste, and Judge Larry Bohning. Judge Jordan will retire effective September 30, 2014, and Judges Celeste and Bohning plan to retire in January 2015.

Judge Claudia Jordan was appointed to the Denver County Court bench in 1994. She was a deputy state public defender prior to her appointment, and was in private practice prior to that. Judge Jordan received her undergraduate degree from the University of North Carolina and her law degree from the University of Colorado School of Law.

Judge Mary Celeste was appointed to the Denver County Court bench in 2000. Judge Celeste also serves as an adjunct professor at DU’s Sturm College of Law. Prior to her appointment to the Denver County Court, she was in private practice from 1985 to 2000. Judge Celeste has been published in a variety of journals, including The Colorado LawyerCourt ReviewPreventive Law Journal, and California Western International Law Journal. She is a frequent speaker at programs in Colorado and throughout the United States. She received her law degree from California Western School of Law in 1983.

Judge Larry Bohning was appointed to the bench in 1980. Prior to his appointment, Judge Bohning worked as a staff attorney for the Colorado General Assembly and as an assistant county attorney for the CIty & County of Denver. Judge Bohning received his undergraduate degree from Dakota Wesleyan University and his law degree from the University of South Dakota School of Law. He is involved in several community activities, including the CBA Board of Governors, the Community College of Denver Foundation, and many CBA and DBA committees. He also participates as a volunteer judge for moot court competitions across the state.

Applications for these vacancies are available on the Denver County Court website. Eligible applicants must be qualified electors of Denver County and must have been licensed to practice law in Colorado for five years. Applications are due no later than 5 p.m. on August 11, 2014. More information is available from the Presiding Judge’s Office, 1437 Bannock, Room 108 or (720) 865-7870.

Chief Justice Directives 04-04 and 04-05 Amended by Colorado Supreme Court

On Friday, July 25, 2014, the Colorado Supreme Court announced revisions to Chief Justice Directive 04-04, “Advisory Counsel Appointments,” and 04-05, “Appointment and Payment Procedures for CAC, GALs, CFIs, and CVs.” For both of these Chief Justice Directives, the changes were effective July 1, 2014.

The changes reflect rate changes to the payment of court-appointed attorneys and investigators and related services. They affect both civil and criminal cases. The changes to CJD 04-04 are reflected in Attachment D, and the changes to CJD 04-05 appear on pages 7 to 8.

For all of the Colorado Supreme Court’s Chief Justice Directives, click here.

Tenth Circuit: Unpublished Opinions, 7/30/2014

On Wednesday, July 30, 2014, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

Pettigrew v. Zavaras

Christie v. Byrd

Ale Magar v. Holder

Muse v. United States

United States v. McIntosh

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