May 24, 2018

Archives for August 19, 2014

Is There a Better Exit Strategy Than Death?—Part I: The Interviews: Roxanne Jensen—Balancing Work and Family While Staying Engaged and Challenged

Editor’s Note: This article appeared in the August 2014 issue of The Colorado Lawyer. This is the third part of a 5-part series on Legal Connection. Click here for the introduction, click here for an interview with Kyle Velte, and stay tuned for more interviews.

Sandgrund-JensenBy Ronald M. Sandgrund, Esq., InQ.

InQ.: Roxanne, how old were you when you first felt that practicing law was what you wanted do as a career? How old were you when you first had serious thoughts about exiting the full-time practice of law? What prompted this change in your thinking?

Roxanne: I first thought I wanted to practice law when I was 22, and I started practicing full-time at 25. I continued to practice full-time until I was 38, when I had my first child. At 42, I had my third child and recognized that my firm’s international law practice was changing, becoming highly specialized, and that significant travel was required to put the right person in the right place at the right time for the clients. I thought I would try to find a way to regulate my work schedule more significantly, perhaps by teaming with lawyers who could handle a more significant travel load.

InQ.: So, what happened?

Roxanne: At some point, after having three kids, I simply realized that for our family, I needed to be more present. Although every family is different, my kids needed me to commit to a career path that would require less travel. My law practice at Morrison & Foerster absolutely and justifiably required significant travel responsibilities. My initial plan was to do contract work for lawyers until the kids were a bit older. I was able to start doing contract work pretty much right away, mostly for my former law partners.

InQ.: How did that go?

Roxanne: The plan worked, but I wasn’t satisfied without having more entrepreneurial, creative input into my work. So, I started looking around for a more committing framework, with less travel obligations—something more focused and sustained than project work, with long-term goals, and seeing matters or ideas through to completion. Contract work often doesn’t fill that need. Meanwhile, I missed practice in Big Law terribly—and I still miss it. The quality of practice and the caliber of my colleagues were unmatched. I’ll never find more fulfillment in a job than I did at Morrison & Foerster, including my several years as its Denver managing partner. I thought many times about re-engaging in the practice, but I knew the travel obligations would overwhelm me and my family.

InQ.: It seems that you gave some thought to reversing course; did you do so?

Roxanne: No, I didn’t, but I changed course again to find something more committing. In 2007, I left the practice of law and joined a national legal recruiting firm, to start their division for Lateral Partners and Firm Mergers. I grew that division very profitably. However, over time, I recognized that adding owners to law firms was not a staffing issue, but a strategic one. I exited the recruiting world to join the consulting world in 2011. I currently own EvolveLaw, a strategic consulting LLC, helping law firms set and execute growth strategies (including mergers and acquisitions) and refine their business models in a changing and challenging legal services marketplace. I also am a managing director with Catapult Growth Partners, a professional services consulting group that provides strategic planning, business development, and executive recruiting services.

InQ.: Some obstacles that lawyers face when retreating from full-time practice include not being able to imagine life not practicing law full-time, fearing not being able to fill the time, and dreading not having enough money. What do you think of each of these suggested impediments?

Roxanne: For me, there are always creative professional possibilities; I’ve never felt limited to practicing law, or concerned about how to fill my time. Being valued financially and professionally is important, so of course I have felt some need to use my gifts and experience well to serve and be compensated appropriately.

InQ.: How did your significant other react during the course of you exploring options other than the full-time practice of law?

Roxanne: Despite being by nature somewhat less entrepreneurial than I, my spouse has been fabulously supportive while I’ve remade myself professionally.

InQ.: Did any tensions arise between you and others, including your children, co-workers, and significant other, as a result of you withdrawing from the full-time practice of law?

Roxanne: No.

InQ.: Looking back, what, if anything, would you do differently?

Roxanne: I would think more entrepreneurially and creatively right away, instead of “ramping down” my practice by doing contract work.

InQ.: What assumptions did you make that turned out to be mostly or wholly incorrect?

Roxanne: I assumed my highest and best use would be in legal practice, when my training and gifts were in fact suited for a broad range of possibilities.

InQ.: How happy were you when practicing law full-time versus how happy are you now?

Roxanne: I loved the practice of law; but I’m also very happy now, using my many years of practice and management and my strategic thinking skills to help firms position well in the market.

InQ.: How much did financial considerations influence your decision to retreat from the full-time practice of law?

Roxanne: Not at all.

Colorado Court of Appeals: Consent of All Beneficiaries Necessary to Ratify Action Contravened by Terms of Trust

The Colorado Court of Appeals issued its opinion in In re Estate of Foiles: Foiles v. Foiles on Thursday, August 14, 2014.

Trust—Beneficiaries—Breach of Fiduciary Duty.

The trustees of the Clyde Foiles Trust were Ruth Foiles, Larry Foiles, and the Farmers State Bank of Fort Morgan (Bank). Larry Foiles, along with Larry’s two children and his nephew Gregory Foiles, were beneficiaries of the trust. The trust prohibited Larry Foiles from exercising powers as trustee that were directly or indirectly for his own benefit, and required that any such actions be taken solely by the Bank. Gregory Foiles contested two transactions undertaken at least in part by Larry Foiles, alleging that the transactions were a breach of his fiduciary duty. The trial court entered judgment in favor of Larry Foiles.

On appeal, Gregory Foiles contended that the trial court improperly ruled on his breach of fiduciary duty claim. In the absence of a trust provision that would allow ratification by a co-trustee of otherwise invalid actions of a trustee, only the consent of all beneficiaries, with full capacity to give such consent and full knowledge of the relevant facts, could ratify an action of a trustee that is in violation of the express terms of a trust. Here, because Larry Foiles’s undertaking of the 2001 Section 1031 exchange of real property violated the terms of the trust, the Bank, as co-trustee, could not validly ratify that action. Under the terms of the trust, only the Bank would have been authorized to undertake such a transaction. Therefore, Gregory Foiles established a prima facie claim that Larry breached his fiduciary duty, and the trial court erred in ruling that ratification by the Bank precluded Gregory Foiles’s breach of fiduciary duty claim. The judgment was reversed and the case was remanded to the trial court to make additional findings as to whether Larry Foiles met his burden to go forward with some evidence that the questionable transaction was fair and reasonable, and, ultimately, whether he was liable for breach of fiduciary duty in connection with that transaction.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Victim’s Entire Interview Admissible to Give Jury Complete View of Credibility

The Colorado Court of Appeals issued its opinion in People v. Miranda on Thursday, August 14, 2014.

Sexual Assault on a Child—Evidence—Recording—Prior Consistent Statements—Confrontation Clause—Res Gestae Evidence—Hearsay.

A jury convicted Miranda of sex offenses involving his girlfriend’s 11-year-old daughter, E.S., and her friend, V.M. On appeal, Miranda contended that the trial court erred either in admitting a DVD recording of E.S.’s entire forensic interview or in allowing the prosecution to introduce the recording after E.S. had testified and been released, claiming it violated his confrontation rights. The entire recording was admissible as a prior consistent statement because Miranda broadly attacked the credibility of E.S. Further, the Confrontation Clause permits admission of testimonial hearsay after the declarant has testified and been released, provided that the declarant testified concerning matters addressed in the declaration, the declarant was subject to cross-examination, and the defendant did not ask that the prosecution be required to recall the declarant for further cross-examination after the hearsay had been introduced, which happened in this case. Therefore, Miranda’s confrontation rights were not violated, and the trial court did not commit plain err in admitting the recording.

Miranda also argued that the trial court abused its discretion in admitting evidence that he had groomed E.S., because the evidence was not admissible as res gestae. The record reveals that both the charged offenses and the grooming acts occurred over approximately the same two-year period, and it was helpful to explain the context of the assaults. Therefore, the trial court acted within its “substantial discretion” in admitting the acts as res gestae evidence.

Miranda contended that the trial court erred in admitting a list made by E.S.’s step-mother of the abuse told to her by E.S. However, both the step-mother and E.S. were available to testify, and although roughly two years lapsed between the first assault and the creation of the list, this time span was not so long that E.S. could no longer accurately recall the events that she recited. Thus, the trial court did not commit plain error in admitting the list under CRE 803(5).

Miranda contended that the trial court erred in denying his motion for judgment of acquittal on the V.M. attempt counts because “there was no evidence presented of any overt request and/or expressed dare for a sex act that Mr. Miranda made to V.M.” However, the there was sufficient evidence showing that Miranda had taken all steps preparatory to assaulting V.M. in the same way he assaulted E.S., and had engaged her in a game of truth or dare for the purposes of sexual exploitation.

Finally, Miranda argued that he was entitled to a new trial because his statements to the detective regarding the game incident were taken out of context in a redacted DVD that was given to the jury before deliberation. However, Miranda denied having played the game with the girls in both the redacted and unredacted versions, and he denied having done so at trial. Therefore, he was not entitled to a new trial. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Natural Gas Pipelines and Fittings Exempt from Sales Tax

The Colorado Court of Appeals issued its opinion in Pioneer Natural Resources USA, Inc. v. Colorado Department of Revenue on Thursday, August 14, 2014.

Sales Tax—Pipelines—Fittings—Enterprise Zone—Natural Gas.

In this sales tax case, the district court concluded that the pipelines and fittings at issue, which are located in one of Colorado’s enterprise zones and are used to gather and deliver natural gas from plaintiff’s wells to its processing facilities, qualify for Colorado’s sales tax exemption because they “are in direct use in the manufacturing of natural gas,” as defined in CRS §§ 39-26-709 and 39-30-106. The Colorado Department of Revenue (DOR) appealed, contending that the district court erred in finding that plaintiff’s purchases qualify for this tax exemption.

The parties agreed that plaintiff’s wells and gas-gathering system are located within an enterprise zone. Under the enterprise zone sales and use tax exemption statute, purchases of “machinery or machine tools” in excess of $500 are exempt from sales tax if they are “used solely and exclusively in an enterprise zone in manufacturing tangible personal property, for sale or profit. . . .” Here, the pipelines are used to “move material from one direct production step to another in a continuous flow,” and the enterprise zone exemption statute considers both “extracting” and “processing” as manufacturing. Thus, plaintiff’s pipelines and fittings that move natural gas from the wells—a direct production step of extracting natural gas—to the processing facilities in a continuous flow qualify for Colorado’s sales tax exemption because they “are in direct use in the manufacturing of natural gas.” Therefore, the district court did not err in finding that plaintiff’s purchases qualified for Colorado’s sales tax exemption. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Defendant Need Not Renew Pretrial Objection to Joinder to Preserve Issue

The Colorado Court of Appeals issued its opinion in People v. Curtis on Thursday, August 14, 2014.

Sexual Assault on a Child—Joinder—Motion to Suppress Evidence.

Curtis appealed the judgment of conviction entered on a jury verdict finding him guilty of two counts of sexual assault on a child and two counts of aggravated incest, all arising from sexual acts with his two daughters, S.C. and C.C. These assaults began when the victims were 9 or 10 years old and continued until they were removed from the home several years later.

On appeal, Curtis contended that the trial court abused its discretion in allowing the prosecution to join for trial the charges involving the two victims. Sexual assault offenses may be joined if the evidence of each offense would be admissible in separate trials. Here, the evidence of Curtis’s assaults of the two victims would have been admissible in separate trials under both CRE 404(b) and CRS §16-10-301. The evidence at issue related to material facts, including Curtis’s intent and the fact that he was engaged in a common plan, scheme, or design, and this evidence was relevant because it made it likely that Curtis had committed the crimes charged. Accordingly, the trial court did not abuse its discretion in allowing the prosecution to join the charges pertaining to both victims.

Curtis also contended that the trial court erred in refusing to suppress the statements that he made during his interview with an agent from the Colorado Bureau of Investigation. Curtis claimed these statements were involuntary and were made after he had invoked his right to silence. However, Curtis voluntarily waived his Miranda rights, agreed to take a polygraph examination, was not in custody during the examination, and did not unambiguously invoke his right to silence. In addition, the officer’s conduct was not coercive. Therefore, the trial court did not err in denying Curtis’s motion to suppress.

Finally, Curtis contended that the trial court abused its discretion in admitting evidence of his conduct concerning S.C.’s stillborn baby after its birth (specifically, that Curtis removed the stillborn baby from S.C.’s room and concealed it in a box and then in a jar). Curtis’s conduct after the stillborn birth reflected efforts to conceal that birth, shows consciousness of guilt, explained how the abuse continued leading to S.C.’s second pregnancy, and undermined Curtis’s defense that he was unaware he had intercourse with S.C. because she had drugged and sexually assaulted him. Therefore, the trial court did not abuse its discretion in admitting the evidence at issue here. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.