May 22, 2018

Archives for January 2016

The Anti-Motivation Strategy (Part 1): All This Motivation is Killing You

Employee-Motivation

It’s the end of January and the resolutions are long gone. Not for lack of motivation, but because of it.

Google “motivation.” What comes up? Lots of hits about leadership, management, team building, best hiring practices, sales training. Everything you need to get other people to do what you want — your team, employees, salesmen, managers, students, children…

ziglar_quote

And lots more hits on how to get yourself to do what you want, be a success at work and life.

Plus enough posters and sayings and quotes to paper a conference room. The one at the left has name recognition appeal, and shows up a lot. All these will help us, right?

Nope. Not going to work. Instead, it’s going to hurt you in the long run, not to mention sabotaging your success.

Yes, you read that right. You might get short-term results, but the reality is that…

A lot of what passes for motivation is not just self-defeating, it’s harmful to your health.

The reason why is ironically evident in in that famous Zig Ziglar quote.

The Science Of Motivation

We Googled motivation, and now we’re… um, motivated… to dig deeper. We tap Wikipedia first, to get a quick look at the lay of the land. We’re greeted with this:

Motivation is a theoretical construct used to explain behavior. It represents the reasons for people’s actions, desires, and needs. Motivation can also be defined as one’s direction to behavior, or what causes a person to want to repeat a behavior and vice versa. A motive is what prompts the person to act in a certain way, or at least develop an inclination for specific behavior. For example, when someone eats food to satisfy their hunger, or when a student does his/her work in school because he/she wants a good grade. Both show a similar connection between what we do and why we do it. “

Almost lost us at “theoretical construct,” but food and good grades? Now we’re tracking — at least until we get to the laundry list of Incentive Theories: Intrinsic and Extrinsic Motivation, Operant Conditioning, Push and Pull, Self-control, Drives, Incentive Theory, Drive-Reduction Theory, Cognitive Dissonance Theory, Content Theories, Maslow’s Hierarchy of Needs… Maslow! Finally some familiar ground! We had that in Psych 101!

While we’re greeting Maslow like an old friend, the list goes on, at a low rumble. There’s a lot to Motivation Science, apparently — mostly psychology. How about we try Behavioral Neuroscience instead:

Concepts of motivation are vital to progress in behavioral neuroscience. Motivational concepts help us to understand what limbic brain systems are chiefly evolved to do, i.e., to mediate psychological processes that guide real behavior. This article evaluates some major motivation concepts that have historic importance or have influenced the interpretation of behavioral neuroscience research. These concepts include homeostasis, setpoints and settling points, intervening variables, hydraulic drives, drive reduction, appetitive and consummatory behavior, opponent processes, hedonic reactions, incentive motivation, drive centers, dedicated drive neurons (and drive neuropeptides and receptors), neural hierarchies, and new concepts from affective neuroscience such as allostasis, cognitive incentives, and reward ‘liking’ versus ‘wanting.’

Okay then. We had homeostasis in Biology 101, and everybody knows about “setpoints,” but settling points, intervening variables, hydraulic drives (Huh?! In our brains?!), drive neuropeptides… Maybe not so much.

All this psych and neuroscience feels pretty thick. Let’s try something visual… hey, here’s a PowerPoint! Hmmm, a lot of the same stuff. All good science, no doubt, but what about us real folks?

Can’t We Just Get Positive?

Doesn’t having a positive attitude keep us motivated? Can’t we just do that?

We’ll explore that idea next time.

Rhodes_4This second collection of Kevin’s blog posts focuses on the future and culture of law, including insights on technology, innovation, neuro-culture, and entrepreneurship. Extensively researched, visionary, and written in a crisp, conversational style by a man on a mission to bring wellbeing to the people who learn, teach, and practice the law.

 

 

 

Tenth Circuit: Agency Decision Presumed to Apply Prospectively Only

The Tenth Circuit Court of Appeals issued its opinion in De Niz Robles v. Lynch on Tuesday, October 20, 2015.

Alfonzo De Niz Robles filed a petition for adjustment of status in 2007, relying on the Tenth Circuit’s opinion in Padilla-Caldera v. Gonzales (Padilla Caldera I), 426 F.3d 1294, 1300-01 (10th Cir. 2005), amended and superseded on reh’g, 453 F.3d 1237, 1244 (10th Cir. 2006), which held that 8 U.S.C. §§ 1255(i)(2)(A) allowed the Attorney General discretion in affording relief from removability under § 1182(a)(9)(C)(i)(I). After De Niz Robles filed his petition, the BIA issued In re Briones, 24 I. & N. Dec. 355 (BIA 2007), which overturned the Tenth Circuit’s decision in Padilla Caldera I. In 2013, the BIA ruled that De Niz Robles was categorically ineligible for relief due to its Briones decision, which it applied retroactively. De Niz Robles appealed to the Tenth Circuit.

Applying the Chevron test and guided by the Supreme Court’s ruling in National Cable & Telecommunications Ass’n v. Brand X Internet Services (Brand X), 545 U.S. 967 (2005), the Tenth Circuit determined it was required to decide whether Briones could reasonably apply retroactively, thereby overruling Tenth Circuit precedent. The Tenth Circuit analyzed the separation of powers doctrine, noting that judicial decisions are presumed to apply retroactively due to the impartial nature of the judiciary, whereas Congressional rule-making is presumably prospective only unless otherwise specifically stated. Because administrative rulemaking is a delegation of Congressional power, the Tenth Circuit found that administrative rules are presumptively prospective in application. However, when confronted with a situation where an administrative agency acts in a quasi-judicial capacity, such as the BIA did in Briones, the Tenth Circuit examined whether the administrative action is more akin to judicial function or legislative function.

The Tenth Circuit determined that, in applying its rules pursuant to a Congressional delegation of power, the BIA was acting in a quasi-legislative capacity. Examining due process and equal protection concerns, the Tenth Circuit determined it would contravene Supreme Court precedent and constitutional safeguards to allow the BIA’s decision to be applied retroactively. The Tenth Circuit therefore overturned the BIA’s refusal to consider De Niz Robles’ petition. The Tenth Circuit noted that at the time De Niz Robles filed his petition, Padilla Caldera I was the existing circuit precedent, and he was justified in his reliance on that precedent. The BIA argued that De Niz Robles should have understood that there was a conflict between § 1255 and § 1182, and that there was a chance the conflict would be resolved against De Niz Robles’ position. The Tenth Circuit found that approach illogical, noting that a litigant is justified in relying on the law at the time a petition is filed.

The Tenth Circuit remanded to the BIA for further proceedings consistent with its opinion.

Tenth Circuit: Unpublished Opinions, 1/28/2016

On Thursday, January 28, 2016, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

Nyanjom v. Hawker Beechcraft Corp.

Dornon v. Jurgens

United States v. Serrato

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

Comment Period Open for Proposed Changes to Colorado Appellate Rules

The Colorado Supreme Court is soliciting comments regarding proposed changes to the Colorado Appellate Rules. The changes affect Rule 3.4, “Appeals from Proceedings in Dependency and Neglect,” and the corresponding forms, JDF 545 through 549. The proposed changes to Rule 3.4 include minor changes, such as changing the word “record” to “transcript” in some places, and major changes, including the court’s continued jurisdiction over the case, composition of the record on appeal, inclusion of information about the Indian Child Welfare Act, and more. A redline of the proposed changes is available here.

Comments regarding the proposed changes may be submitted in writing to Christopher Ryan, Clerk of the Colorado Supreme Court, via email or via U.S. mail to 2 E. 14th Ave., Denver, CO 80203. Comments must be received no later than 5 p.m. on April 6, 2016. Comments will be posted on the State Judicial website after the comment period has closed.

For all of the Colorado Supreme Court’s adopted and proposed rule changes, click here.

Colorado Court of Appeals: Announcement Sheet, 1/28/2016

On Thursday, January 28, 2016, the Colorado Court of Appeals issued two published opinions and 23 unpublished opinions.

Ravenstar, LLC v. One Ski Hill Place, LLC

Denver Health & Hospital Authority v. City of Arvada

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: Unpublished Opinions, 1/27/2016

On Wednesday, January 27, 2016, the Tenth Circuit Court of Appeals issued no published opinion and 11 unpublished opinions.

United States v. Romero

Harris v. Gallagher

United States v. Neel

United States v. Wilson

United States v. Warren

Manning, II v. Patton

Lehman Brothers Holdings, Inc. v. Universal American Mortgage Co., LLC

United States v. Grigsby

Dawson v. Audet

Libretti v. Courtney

United States v. Page

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

Qusair Mohamedbhai Recognized with 2015 Davis Award

Qusair Mohamedbhia Bio PicOn January 21, 2016, Davis Graham & Stubbs held its annual Richard Marden Davis Award Dinner. The guest of honor and recipient of the 2015 Davis Award was Qusair Mohamedbhai, founder of Rathod Mohamedbhai LLC, a civil rights and plaintiff’s employment firm in Denver. Mohamedbhai is a member of the Board of Directors for CLE in Colorado, is a frequent speaker at our programs, and writes for The Practitioner’s Guide to Colorado Employment Law. In his practice, he advocates for the rights of employees in the workplace and for the civil rights of all people against governmental and institutional abuses of power. In addition to his law practice, Mohamedbhai is an adjunct professor at the University of Denver Sturm College of Law, where he teaches constitutional litigation.

Mohamedbhai has received many other prestigious awards in his career. In addition to the 2015 Davis Award, Mohamedbhai received the 2015 Leonard Wein­glass in Defense of Civil Lib­er­ties Award from the American Association of Justice; received the 2013 and 2014 Case of the Year awards from the Colorado Trial Lawyers Association; and is a Legal Advisor to the Government of Mexico. He also received 5280 Magazine‘s “Top Lawyer” award for 2016 in the area of civil rights, Law Week Colorado‘s “Barrister’s Best” award in 2015 for Best Plaintiff’s Employment Lawyer, a “Super Lawyer” designation for 2014 and 2015 in the area of plaintiff’s employment law, and was named in Best Lawyers in the 2016 edition for employment law.

The Richard Marden Davis Award is given annually to a lawyer under 40 years old who combines excellence as a lawyer with civic, cultural, educational, and charitable leadership. The award was created in honor of Richard Marden Davis, a founding partner of Davis Graham & Stubbs, who was a skilled attorney who also made time for community service. The Davis family, Davis Graham & Stubbs, and the Denver Bar Foundation established the award in memory of Richard Marden Davis in 1993 to honor his belief that great lawyers should also be professional and community leaders. Past recipients of the Davis Award include Justice Monica Marquez of the Colorado Supreme Court, Justice Richard Gabriel of the Colorado Supreme Court, Judge Gilbert Roman of the Colorado Court of Appeals, and former governor Bill Ritter.

For more information about the award, click here. Congratulations, Qusair!

Tenth Circuit: Unpublished Opinions, 1/26/2016

On Tuesday, January 26, 2016, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

Barnett v. Bear

Guru v. Lynch

Lester v. City of Lafayette

United States v. Cotonuts

American Athiests, Inc. v. Thompson

Browning v. Oliver

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

Hon. R. Michael Mullins to Retire and Hon. Ann Frick to Resign from Second Judicial District Court

On Monday, January 25, 2016, the Colorado State Judicial Branch announced that Hon. R. Michael Mullins will retire from the Second Judicial District Court, effective July 1, 2016, and Hon. Ann Frick will resign from that court, effective July 1, 2016.

Judge Mullins was appointed to the district court bench in 1990. Prior to his appointment, he practiced in the litigation section of the Colorado Attorney General’s Office and was a trial attorney in the Denver Office of the Colorado State Public Defender. He was also an attorney in private practice, specializing in criminal, administrative, and workers’ compensation law. He received his undergraduate degree from St. Louis University and his law degree from the University of Colorado Law School.

Judge Frick was appointed to the district court bench in June 2010. Prior to her appointment, she spent several years at the boutique firm, Kelly, Haglund, Garnsey & Kahn, and also worked at Holme Roberts Owen (now Bryan Cave) and the Denver District Attorney’s Office. She also was a founder and name partner of the Jacobs Chase firm, where she practiced complex business and real estate litigation.

Applications are now being accepted for the vacancies. Eligible applicants must be qualified electors of the Second Judicial District and must have been admitted to practice law in Colorado for five years. Application forms are available on the State Judicial website and are also available from the ex officio chair of the Second Judicial District Nominating Commission, Justice Monica Marquez. Applications must be received no later than 4 p.m. on March 8, 2016. Anyone wishing to nominate another person must do so in writing no later than 4 p.m. on March 1, 2016.

For more information about the vacancies, click here.

Colorado Supreme Court: Announcement Sheet, 1/25/2016

On Monday, January 25, 2016, the Colorado Supreme Court issued three published opinions.

P.W. v. Children’s Hospital Colorado

Esquivel-Castillo v. People

Ryals v. City of Englewood

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.

Colorado Supreme Court: Hospital Assumed Duty to Protect Suicidal Patient from Self-Harm

The Colorado Supreme Court issued its opinion in In re P.W. v. Children’s Hospital Colorado on Monday, January 25, 2016.

Torts—Medical Malpractice—Comparative Negligence.

In this original proceeding arising out of a medical malpractice action, the Supreme Court considered whether the defendant hospital’s comparative negligence and assumption of risk defenses were properly dismissed on summary judgment. First, the Court analyzed the nature of defendant’s duties toward the patient and determined that defendant undertook to render mental healthcare services to prevent the patient from engaging in self-harm. The Court then reasoned that the scope of defendant’s assumption of duty subsumed any legal duty the patient had not to engage in foreseeable self-destructive behavior. Accordingly, the Court concluded that defendant cannot assert the patient’s comparative negligence under the facts of the case and discharged the rule.

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

Colorado Supreme Court: Felony Murder Instruction Adequately Apprised Jury of Elements of Kidnapping

The Colorado Supreme Court issued its opinion in Esquivel-Castillo v. People on Monday, January 25, 2016.

Sufficiency of an Information—Notice of Charges—Felony Murder.

Esquivel-Castillo petitioned for review of the judgment of the court of appeals affirming his conviction of felony murder. A jury acquitted him of a separate count of kidnapping, charged according to the “seized and carried” alternative way of committing that crime, but convicted him of felony murder for a death caused during his commission or attempted commission of kidnapping the same victim, during the same charged timeframe, by a different statutorily qualifying act of kidnapping. As pertinent to the issue on review in the Supreme Court, the court of appeals rejected Esquivel-Castillo’s assertion that the more specific kidnapping charge necessarily limited the scope of the more generally charged felony murder count to a charge of death caused in the course of or in furtherance of the commission of kidnapping by seizing and carrying the victim from one place to another, resulting in his having been convicted of a crime with which he had never been charged.

The Supreme Court affirmed the judgment of the court of appeals. Because one count of an information is not circumscribed by another count of that information unless the latter is incorporated in the former by clear and specific reference, the Court determined that the crime of kidnapping alleged more generally as an element of felony murder was not limited to the specific alternative act of kidnapping alleged in the separate kidnapping count. Therefore, jury instructions as to all statutory forms of kidnapping supported by the evidence did not constructively amend the felony murder charge.

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