April 18, 2018

Archives for August 15, 2014

6 Ways To Overcome Fear of Failure

Editor’s Note: This post originally appeared on the ALPS 411 blog on August 11, 2014. Reprinted with permission.

SusanCartierLiebelBy Susan Cartier Liebel

Life begins at the end of your comfort zone ~ Neale Donald Walsh

We’ve all been there. We are so morbidly afraid to fail. So afraid, in fact, we find ourselves paralyzed and simply can’t take the next step forward. Not one. And when it comes to starting a solo practice or taking on a legal matter one grade level above our expertise or leaving the Big Law job you hate, you name it, it can cripple us and severely limit our futures.

This fear is quite possibly the single strongest force holding people down far below their professional and personal potential. In a crazy world full of uncertainty, a roller coaster economy, the myriad of unexpected disasters that could happen to anyone at any time, isn’t it easy to see why most people will take the safest route possible, the tried and true?

But this is where the joke is on us: playing it safe has risk as well. If you never give yourself permission to fail, your success in life will have clear self-imposed limits. Most people grossly underestimate their recuperative powers if they don’t succeed. This underestimation leads them to pass on valuable opportunities that come knocking. And we’ve all read with awe and longing the stories of those who failed often, failed big and then rose to the top with incredible success. It’s part of our business folklore!

If you are reading this, chances are you want to open a solo practice. Here are a few strategies that can help you put risk and reward of opening up your own business in perspective. It may even help you to challenge the fears which have been holding you back from taking the plunge.

1. Missed opportunities don’t happen without a cost – Without taking risk, you can’t take advantage of opportunities that present themselves. While a steady paycheck may sound appealing, a pink slip can hit you upside the head without warning, too. But, even in with this possibility, your life can still be pleasing and predictable, quiet and reasonably fulfilling. However, the odds of you creating something original are very low and most likely you will not leave any lasting mark on the world. (And that’s not to say that’s a bad thing.) But the reality is today’s careers are dynamic, not static and you may not have the luxury of a pleasing and predictable life. Career planning is less about planning and more about being continuously alert to opportunities that present themselves to you spontaneously. You need to be able to respond. Therefore, the ideal career is one where there is a wide range of opportunities (some more risky, some less) that together form a relatively safe career choice with a high upside for growth. Taking some of these high risk opportunities is essential because at the end of the day, they offer the greatest upside for reward.

2. Banish Ignorance – What we don’t know is the source of most fear. Eliminate the paralyzing power of fear by learning and understanding what you are up against. Research and be aware of all the possible outcomes (both the good and the bad) so you can get both a macro and micro picture of the benefits of success and the risks of failure. This analysis will help you see beyond the fear and help you make a more reasoned and dispassionate decision. Learn what it really means to run your own business as a lawyer. Talk to lawyers who are doing it; talk to lawyers who have done it and now are doing something else. Educate yourself. It is the most powerful antidote to fear.

3. And if you fail? – Know how long it will take you to recover if you fail. Odds are it will be less time than you think and not as financially disruptive as you fear. Is the fear of a few potentially difficult months so strong it can keep you in a mediocre or miserable situation indefinitely?

4. Understand the benefits of failure – While I say there is no such thing as failure if you try (only not trying is failure) others believe you can fail and should fail and should fail often. So if you are in this category know that every failure is an experiment and an opportunity to grow. Sometimes, even if the failure impacts you financially, oftentimes the knowledge you accumulate from the experience can be worth the financial downside. It can even position you for the next opportunity which will help you not only recoup the losses but take you further in your life than you would have gone otherwise. In the corporate world, it is well known that managers prefer to hire someone who tried to start a company and failed than someone who has always been strictly corporate. It is true in the legal world, too. Many who have gone solo have been offered jobs because they showed initiative, took risks, showed they could wear multiple hats and hustle. That the solo practice wasn’t a raging success didn’t matter to the hiring lawyer. The initiative, chutzpah and self-taught education the lawyer received is what mattered.

5. Have a Plan BContingency plans (or a safety net) are yet another way to minimize risk. If Plan A doesn’t work out you always have Plan B. Sometimes just knowing there is a Plan B makes it easier to move forward with Plan A. I find, depending upon the situation, having contingency plans allows me to take more risks and take them with greater confidence simply because I know it’s not ‘do or die.’

6. Start Moving – Sometimes the best way to climb the mountain is not to look at the mountain peak but down at your feet and put one foot in front of the other. As soon as you take the first step you begin to gain experience and education. We’ve all been there. Everything is or seems hardest the first time we do it quite simply because we’ve never done it before. So, you just put one foot in front of the other, build up momentum and rhythm and as you get closer to your goal, the fear of not succeeding seems less overwhelming.

How have you addressed your fears?

Susan Cartier Liebel is the Founder & CEO of Solo Practice University® (solopracticeuniversity.com), the only educational and professional networking community for lawyers and law students designed for those who want to create and grow their solo or small firm practices.

A coach/consultant for solos and small firms, an attorney who started her own practice right out of law school, a Member of the Suffolk School of Law – Institute on Law Practice Technology & Innovation advisory board charged with guiding the Institute’s future, an Entrepreneur Advisor for Law Without Walls, an adjunct professor at Quinnipiac University School of Law for eight years teaching law students how to open their own legal practices right out of law school, a columnist for LawyersUSA Weekly, the Connecticut Law Tribune, The Complete Lawyer, and Law.com, she has contributed to numerous online publications such as Forbes.com, legal publications and books on this topic as well as the issues facing women in the workforce. She speaks frequently to law schools and professional organizations around the country on issues facing solos, offering both practical knowledge and inspiration. She can be contacted at: susan@solopracticeuniversity.com.

CLE is hosting Hanging Your Shingle this weekend. If you are ready to overcome your fears and hang your shingle, this program is for you. Order the homestudy below.

CLE Program: Hanging Your Shingle

This CLE presentation will take place on August 14  through 16, 2014. Click here to order the CD homestudy – click here to order the Video OnDemand homestudy – click here to order the MP3 Audio Download homestudy. You can also order by phone at (303) 860-0608.

Colorado Court of Appeals: Announcement Sheet, 8/14/2014

On Thursday, August 14, 2014, the Colorado Court of Appeals issued nine published opinions and 32 unpublished opinions.

People v. Heywood

People v. Curtis

Pioneer Natural Resources USA, Inc. v. Colorado Department of Revenue

People v. Miranda

People v. Fritts

In re Estate of Foiles

Wainscott v. Centura Health Corp.

TABOR Foundation v. Colorado Bridge Enterprise

Curtiss v. People

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.

 

Tenth Circuit: Nurse’s Refusal to Assess Inmate’s Severe Abdominal Pain Violated Prisoner’s Eighth Amendment Rights

The Tenth Circuit Court of Appeals issued its opinion in Al-Turki v. Robinson on Tuesday, August 12, 2014.

Homaidan Al-Turki was a prisoner with Type II diabetes and other health conditions. On the night of October 5, 2008, he suddenly experienced severe abdominal pain. The pain was so severe he collapsed, vomited, and believed he was dying. He used his cell’s intercom to contact a correctional officer and request to go to the prison’s medical center. The officer called the medical center, where nurse Mary Robinson was the only medical staff person on duty. Robinson refused to see Al-Turki, despite knowing that severe abdominal pain can be a symptom of several life-threatening conditions and knowing that Al-Turki’s Type II diabetes made him susceptible to certain serious illnesses of which severe abdominal pain is an early symptom. Robinson also refused to allow him to be transported to a medical facility, claiming he was a flight risk.

Al-Turki reported his severe pain to a second correctional officer two more times that night, and the officer called Robinson both times. Robinson refused to see Al-Turki and advised the officer that he should file a written request for medical care the following morning. At some point in the night, Al-Turki either fell asleep or lost consciousness. When he awoke at 4 a.m., the pain was slightly better, and at 6 a.m. he was no longer experiencing pain. At a previously scheduled medical appointment at 10 a.m., he passed two kidney stones.

Al-Turki filed suit under 42 U.S.C. § 1983 against several prison officials, including Robinson, based on the officials’ failure to provide him medical assistance or treatment during the several hours he was in extreme pain while passing a kidney stone. The district court granted qualified immunity to all prison officials except Robinson, who filed an interlocutory appeal with the Tenth Circuit. The district court concluded Al-Turki could prove a claim of deliberate indifference to his medical needs in violation of the Eighth Amendment. The district court also concluded the law is clearly established that a medical professional who knows of and appreciates an inmate’s risk of serious medical harm must make a good faith effort to assess the individual.

The Tenth Circuit addressed Robinson’s two issues: (1) whether the evidence was sufficient to satisfy the objective prong of the Eighth Amendment extreme indifference test, and (2) whether her actions violated clearly established state law. As to the first claim, Robinson claimed that Al-Turki’s pain could not satisfy the objective prong because kidney stones are a relatively benign, albeit painful, condition and he was only in pain for a few hours. The Tenth Circuit stoutly rejected her argument, noting that Al-Turki was in so much pain he vomited and believed he was dying. He demonstrated significant suffering and was provided neither medical treatment to ease his suffering nor medical diagnosis to ease his fear of death. The Tenth Circuit similarly rejected her qualified immunity arguments based on Al-Turki’s relatively short period of suffering and benign diagnosis, since the facts concerning duration and diagnosis were not known at the time and he could have been suffering from any of a number of life-threatening conditions.

As to Robinson’s second claim, the Tenth Circuit ruled that Robinson violated clearly established law by choosing to ignore Al-Turki’s complaints. The denial of qualified immunity was affirmed.

Tenth Circuit: Alleyne Not Retroactive in Scope so Defendant’s Appeal Untimely

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hoon on Tuesday, August 12, 2014.

Kenneth Hoon was convicted of drug charges in federal court, and his conviction was final in March 2008. After unsuccessfully appealing, he filed a motion to vacate his sentence, which the district court dismissed as untimely. Hoon seeks a Certificate of Appealability, relying on the Supreme Court’s decision in Alleyne v. United States to support his argument that Alleyne created a new rule of constitutional law and an exception to the limitations period.

The Tenth Circuit rejected Hoon’s argument, ruling that Alleyne had not been applied by any court as retroactive in scope on collateral review and no reasonable jurist would allow an exception to the one-year limitations period for appellate review.

The Tenth Circuit declined to issue a Certificate of Appealability and dismissed the appeal.

Tenth Circuit: Ambiguities in Arbitration Agreement Must Be Resolved in Favor of Arbitration

The Tenth Circuit Court of Appeals issued its opinion in Sanchez v. Nitro-Lift Technologies, L.L.C. on Friday, August 8, 2014.

Miguel Sanchez, along with co-plaintiffs Shane Schneider and Eddie Howard, worked for Nitro-Lift Technologies in and around Johnston County, Oklahoma, servicing and monitoring oil rigs. At the beginning of their employment, they signed a “Confidentiality/Non-Compete Agreement.” They claim they were not allowed to read the document, ask questions, or have an attorney review it before signing. The agreement, which Nitro-Lift alleges is an employment agreement despite its title, contains a broad arbitration clause requiring arbitration for “any dispute, difference or unresolved question” between Nitro-Lift and the employee.

The employees brought suit against Nitro-Lift in the Eastern District of Oklahoma, alleging violations of the FLSA because they were forced to work more than forty hours nearly every week and did not receive overtime compensation from Nitro-Lift for the hours they worked in excess of forty hours per week. In response, Nitro-Lift filed a motion to dismiss and compel arbitration pursuant to the provision in the purported employment agreement, or, alternatively, a motion to stay pending arbitration. Plaintiffs argued the arbitration agreement was unenforceable as to their FLSA claims for a variety of reasons, their wage disputes did not fall under the scope of the arbitration clause, the arbitration clause’s fee-shifting provisions were impermissible as to their employment dispute, and the forum selection clause and application of commercial arbitration rules make the clause unenforceable because they would force employees to pay substantial costs they cannot afford. The district court denied Nitro-Lift’s motion to compel arbitration, ruling that the contract’s broad arbitration clause did not encompass wage disputes because the contract only applied to confidentiality and non-competition. Nitro-Lift filed an interlocutory appeal, and on the same day filed a new motion to dismiss based on plaintiffs’ amended complaint adding Howard and reasserting the same issues contained in its original motion. The district court denied Nitro-Lift’s second motion as a motion for reconsideration. Nitro-Lift timely appealed and the appeals were consolidated for Tenth Circuit review.

The Tenth Circuit first addressed the dispute regarding the applicability of the arbitration clause. The Tenth Circuit found a strong presumption in favor of arbitration, noting that any ambiguities must be resolved in favor of arbitration. Because the Tenth Circuit found ambiguity regarding whether the arbitration clause applied to the dispute at hand, it ruled that arbitration was required and reversed the district court’s denial of the motion to compel arbitration.

The district court did not address plaintiffs’ FLSA claims, and the Tenth Circuit declined to address them for the first time on review, instead remanding to the district court for determination of plaintiffs’ unresolved issues. The Tenth Circuit also left for the district court determination of whether the fee-shifting provision in the arbitration clause rendered the agreement unenforceable in light of U.S. Supreme Court and Tenth Circuit precedent. The Tenth Circuit also declined to address plaintiffs’ argument that Nitro-Lift’s willingness to waive the fee-shifting provision, the forum selection clause, and the rules governing arbitration constituted an impermissible unilateral contract amendment, instead leaving this issue for the district court’s determination.

The district court’s denial of Nitro-Lift’s motion to compel arbitration was reversed and the case was remanded for further findings consistent with the Tenth Circuit’s opinion.

Tenth Circuit: Unpublished Opinions, 8/14/2014

On Thursday, August 14, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Evans v. State of Kansas

Patel v. Snapp

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