April 28, 2017

Archives for January 7, 2016

What’s Up For the New Year

rhodesThe past couple years, this blog has been mostly about profession-wide trends. When it began a few years ago, it focused on personal development. This year, we’re going back to that beginning, with some blurry lines.

Researching law practice trends, I’ve discovered great sources such as Above the Law, The Lawyerist, and The Likeable Lawyer. There’s also mindfulness evangelist Jeena Cho, and law futurist par excellence, Richard Susskind. And right in our own backyard there’s the IAALS (The Institute for the Advancement of the American Legal System). There are plenty more where those came from.

Knowing that all those sources are out there, doing such a great job at what they do, I’ve grown reluctant to use this blog to simply recycle their material. I recommend them to you if you want to beef up your list of sources with a finger on the pulse of the paradigm shift that’s happening in the legal world these days.

Beyond those law-specific sources, I read and research a lot about creativity and innovation, health and wellbeing, consciousness and personal growth. I’ve noticed that, in the realm of personal development, the genre lines have gotten blurry. Entrepreneurs talk about mindfulness, humanities profs cite quantum physics, and everybody talks about neuroscience, so that now we have all these hyphenated new disciplines: neuro-culture, neuro-anthropology, neuro-biology… I haven’t seen nuero-legal yet, but I’ll bet it’s coming.

The Information Age is serving up a rich cross-fertilization of multi-disciplinary ideas. Entrepreneurial innovation takes cues from artistic creation, business builds itself around social causes, and leadership thought leaders borrow the language of the archetypal inner hero’s journey.

While some groups around the world are darkening into fundamentalist rage, there’s a counter movement that’s waking up moment-by-moment into a bigger, bolder, brighter future that — guess what? — even has lawyers in it.

Imagine that.

No, I mean really. Use your imagination to get your heart and soul around a bigger, bolder, brighter future for lawyers and the law.

Feels pretty good.

That’s where we’re going this year — into that cross-disciplinary brightness. And along the way, because everybody likes a good story, I plan to tell more of them. Many will be my own, and why not? Classic literature has known forever that where we’re most personal we’re also most universal, and I’ve learned to trust that my stories have the same effect. I’ll be honest, I’ve been a reluctant learner on this point, but I think I’m getting it. So we’re going there, too.

That’s what’s up for the new year. But before we go entirely there, I’m going to take the next two weeks to put one final exclamation point on last year’s Future of Law and Culture of Law series, and invite your participation in The Moral of the Story one last time. That’s not entirely a digression, though, because if you accept that invitation, it will become the wildest ride of personal development you could (not) ever imagine.

‘Til then, thanks for reading, and see you next time.

Kevin Rhodes has been a lawyer for over 30 years. Drawing on insights gathered from science, technology, disruptive innovation, entrepreneurship, neuroscience, and psychology, and also from his personal experiences as a practicing lawyer and a “life athlete,” he’s on a mission to bring wellbeing to the people who learn, teach, and practice the law.

Metro Volunteer Lawyers: MVL Honors Dianne Van Voorhees and Looks to the Future

Van Voorhees

Editor’s Note: This post originally appeared on the MVL Blog on January 4, 2016. Reprinted with permission.

By Candace Whitaker, MVL Board Chair

After eight years as Executive Director, Dianne Van Voorhees leaves us on January 7 to serve the Arvada community as a part-time Municipal Court judge, and to start a private practice. Although we are all very happy for Dianne and this new phase of her legal career, she will be sorely missed at Metro Volunteer Lawyers. Dianne reflected recently on her tenure at MVL, stating “leading MVL has been one of my happiest experiences. Our clients get the assistance they need to prevent potentially devastating consequences. I am enormously proud of the staff, too. Our little team of 5 is responsible for ensuring that we could handle over 1400 cases this year. It is a pleasure to work with dedicated professionals, and we could not do it without our volunteers – our legal community is exceptional. I know that MVL will continue to thrive and grow, and I am excited to see what the future brings.”

How do you adequately thank someone who has given her heart and soul the past eight years for the betterment of Metro Volunteer Lawyers? “Thank you” doesn’t seem quite enough to recognize and honor the many contributions of Dianne Van Voorhees, but I’ll try to convey the debt of gratitude we owe her. In thanking her, let’s recall some of her many contributions and how they impacted MVL. From the outset, Dianne’s goal was to raise awareness of MVL within both the legal community and the community at-large. She was innovative on many fronts, including creating and maintaining MVL’s website and social media accounts, and involving MVL in the Colorado Gives Day from its inception and continuing participation, as well as using the Colorado Gives platform to allow individual fundraisers to solicit and collect donations for MVL electronically.

She also raised awareness of MVL by being acutely attuned to the legal community and attending every local meeting and event related to access to justice where she tirelessly advocated for MVL and its clients. Importantly, she achieved this not with an overbearing presence, but with a poise and warmth that reflects her personal and gracious nature. To refuse Dianne is unthinkable not for fear of repercussion, but because she is so highly respected. Having such a command of others based on integrity and mutual regard is a rare commodity these days, and one to be remembered and emulated.  Thank you for always being there for MVL and representing us well, Dianne!

While raising the profile of MVL, Dianne also expanded programming and created significant new programs. The Post-Decree Clinics, serving parents coping with parenting time, child support and maintenance issues, expanded beyond Denver and Jefferson Counties to include Adams and Arapahoe.  Dianne also added more law firm partners to the post-decree clinics, including the Attorney General’s Office, expanding the number of volunteers and the clients served. The Post-Decree Clinics are the only clinics of their type in Colorado and now accept approximately 260 clients annually. From the Post-Decree Clinic clients and volunteers, thank you, Dianne!

In 2012, Dianne, along with Danielle L. Demkowicz, MVL Board Member, also pioneered a monthly, walk-in clinic at the Denver Indian Center. As a descendant of the Turtle Mountain Band of Chippewa Indians, the project was near to Dianne’s heart. Her experience with a wide variety of legal areas and specific experience with Native issues added depth to this clinic, and addressed the needs of a chronically underserved community, which Colorado’s Access to Justice Commission has identified as having one of the biggest gaps in access to justice. The first legal clinic was held on April 4, 2012 and continues as a monthly event.  From the Denver Indian Center and clients, thank you, Dianne!

As Executive Director, Dianne also managed staff responsible for acceptance of approximately 1,800 cases annually on a wide range of civil legal issues for clients who could not otherwise afford representation. She also managed over 400 annual volunteers, and expanded staff and capacity for interns and externs to work with MVL. Such administration is a daunting task, and Dianne researched and advocated for a new, scalable, relational case management system for MVL that also enhances and improves direct intake communication with Colorado Legal Services. This is a technological improvement that will carry MVL well into the future.

Dianne provided oversight to two essential MVL programs: the Family Law Court Program (“FLCP”) and the Rovira Special Programs created by the Rovira Scholar Fellowship, which Dianne helped develop. The FLCP assists pro se clients with uncomplicated, uncontested divorce or custody matters, where the other party is also pro se. The Rovira Programs are special programs and include the Power of Attorney Clinic, which partners with community nonprofits and low-income senior housing facilities to assist seniors with completing powers of attorney and living wills, and the Fostering Success Legal Clinic, a quarterly clinic aimed at helping current and former foster kids navigate legal issues.

Dianne’s responsibilities also included working closely with students, interns, the MVL Governing Board, the CBA/DBA, Colorado Legal Services, and the Rocky Mountain Immigrant Advocacy Network. Thank you, Dianne, for always making it look easy. You leave MVL a better organization for which we are forever grateful. Good luck and Godspeed, Judge Van Voorhees.

As for the future of MVL, we welcome Philip Lietaer as new Director.  Philip knows he has big shoes to fill (at least figuratively), and he is up to the task. Philip received a J.D. from the Western New England University School of Law, and a B.A. from the University of Western Ontario. His legal experience includes an impressive history of public service, including working with indigent clients at the Harvard Legal Aid Bureau, South Brooklyn Legal Services, and the Vail Center for Immigrant Rights in Los Angeles, California.  Philip also worked for the law firm of Goldstein & Lee, P.C. in New York City.

Philip is intimately familiar with the inner workings of MVL, having served in multiple positions within the organization. He first began working at MVL in 2013 as a Rovira Scholar Fellow. In 2014, he became Family Law Court Program Coordinator, where he has done an outstanding job working with clients with sensitive issues. About the FLCP Philip states, “I have had the opportunity to help many people in need while getting to work closely with many exceptional attorneys, students, paralegals, as well as our outstanding staff. Seeing our clients treated in a professional manner by a compassionate and capable legal professional, often providing a moment of dignity, has been one of the most rewarding aspects of this type of work.”

Philip states, “It is an honor to be selected as MVL’s new Director. I have come to know the organization very well, and I look forward to the honor and challenge of continuing to improve our ability to provide quality help to a large number of people in need.” We look forward to working with you, too, Philip.

Gary Kramer and Patricia Herron Appointed to 18th Judicial District Court

On Wednesday, January 6, 2016, the governor’s office announced his appointment of Gary Kramer and Patricia Herron to the Eighteenth Judicial District Court. Kramer will fill a vacancy created by the retirement of Hon. Gerald Rafferty, effective January 23, 2016, and Herron will fill a vacancy created by the retirement of Hon. Christopher Cross, effective February 8, 2016.

Kramer is currently the chair of the litigation department at Berenbaum Weinshienk, P.C., where he focuses on complex probate and domestic litigation for high-asset clients throughout Colorado. He received both his B.A. and J.D. from the University of Colorado, where he was in the Order of the Coif in law school and was articles editor for the law review. He is a contributing author to CLE’s Colorado Estate Planning Handbook. 

Herron is currently a Senior Assistant Attorney General in the litigation division, where she focuses on civil cases involving torts, civil rights, antitrust violations, personal injuries, and medical injuries. She also currently works at the Aurora Municipal Court, where she is a relief judge. She received her undergraduate degree from the University of Oklahoma and her law degree from the University of Tulsa College of Law.

For more information about the appointments, click here.

Colorado Court of Appeals: State Personnel Board Lacked Authority to Review Non-Employee’s Claim

The Colorado Court of Appeals issued its opinion in Williams v. Department of Public Safety on Thursday, December 31, 2015.

Employee—Reinstatement—Colorado Anti-Discrimination Act—Sexual Orientation—Arbitrary and Capricious—Front Pay—Attorney Fees.

Plaintiff spent 12 years as a Colorado State Patrol (CSP) employee, climbing the ranks from trooper to captain. In 2010, he resigned from CSP to pursue his dream of becoming a helicopter pilot. He applied for reinstatement three months later. The new chief required plaintiff to complete a full background check and take a polygraph examination. During the pre-polygraph interview, plaintiff was asked questions eliciting information about his sexual orientation. Reinstatement was later denied on the basis that plaintiff failed the polygraph test. Plaintiff filed a complaint with the State Personnel Board (Board) alleging that CSP had acted arbitrarily or capriciously and that it had discriminated against him on the basis of sexual orientation in violation of the Colorado Anti-Discrimination Act (CADA). An administrative law judge (ALJ) found in favor of plaintiff.

On appeal, CSP contended that the Board did not have authority to review plaintiff’s claim that CSP acted arbitrarily or capriciously in declining to reinstate him. The statutory scheme unambiguously grants the State Personnel Director authority over claims of an arbitrary or capricious action. The Board has authority to review a “discriminatory or unfair employment practice[]” of nonemployee appointment decisions as defined in CADA, but it does not have authority to consider a nonemployee’s claim of arbitrary or capricious action. Accordingly, the claim was remanded to the Board for referral to the Director, who could consider whether the claim was tolled by lack of notice.

CSP contended that the record lacked sufficient evidence to support the ALJ’s conclusion that CSP discriminated against plaintiff based on his sexual orientation. However, the record supports the findings that CSP intentionally discriminated against plaintiff based on his sexual orientation. Supporting evidence included plaintiff’s exemplary record while previously employed, the treatment of plaintiff by CSP after it was discovered that he was gay, and the disparate treatment between plaintiff and other re-hires in similar situations.

CSP also argued, and the Court of Appeals agreed, that the former CRS § 24-34-405 did not authorize the Board to award front pay. Because the Board exceeded its jurisdiction in awarding this remedy, this portion of the Board’s order was reversed. On remand, the Board could consider ordering reinstatement.

Finally, CSP contended that the Board’s attorney fees award to plaintiff was unsupported by substantial evidence. However, the record supports the ALJ’s conclusions that CSP’s decision-making process lacked any reasonable basis and was made in bad faith. Therefore, the attorney fees award was affirmed.

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

Colorado Court of Appeals: Late Filed Counterclaims Timely Because they Relate Back to Original Answer

The Colorado Court of Appeals issued its opinion in Makeen v. Hailey on Thursday, December 31, 2015.

Real Property—Compulsory Counterclaims—Timely—Discovery Violations—Sanctions—Trial Management—Attorney Fees.

Makeen and his father, Hailey, purchased real property in Denver (Utopia Property) as joint tenants. Makeen alleged that he had an oral agreement with his father pursuant to which he would manage the property while his father was alive, and upon his death Makeen would become the sole owner. According to Makeen, Hailey also promised to give him seven other properties upon Hailey’s death. Hailey, however, alleged that he never promised Makeen any property interests, and that Makeen fraudulently purchased the Utopia Property in both of their names, even though he had agreed to act as Hailey’s agent and to buy the property only in Hailey’s name. The court found in favor of Hailey on all claims and counterclaims.

On appeal, Makeen contended that the trial court erred in finding Hailey’s counterclaims for breach of fiduciary duty and fraud timely. Although it was more than a year since the original complaint was filed, the counterclaims were timely because Hailey’s amended answer and counterclaims related back to his initial answer, which was filed within the revival statute’s one-year limitations period.

Makeen also contended that the trial court erred in failing to sanction Hailey for repeated discovery violations. First, although PPR 3.7 requires mandatory sanctions for a failure to timely and completely disclose, it applies only to initial disclosures and not the discovery requests at issue here. Additionally, the trial court did not abuse its discretion in deciding not to impose discovery sanctions against Haley after finding that Haley had made substantially all of the required disclosures and, even if there had been intermittent noncompliance with some of the CAPP discovery rules, the noncompliance was substantially justified and harmless.

Makeen further argued that the trial court erred in prematurely cutting off discovery at the final discovery dispute hearing in October 2013. Makeen had nearly 11 months to conduct discovery, and the trial court acted well within its discretion in enforcing reasonable trial management deadlines in this matter. Further, Makeen failed to show that he was prejudiced by this ruling.

The judgment was affirmed. Because Makeen’s appeal of some of the issues was frivolous, the case was remanded to award Hailey attorney fees and costs related to the defense of those claims on appeal.

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

Tenth Circuit: Unpublished Opinions, 1/6/2016

On Wednesday, January 6, 2016, the Tenth Circuit Court of Appeals issued no published opinion and eight unpublished opinions.

Handy v. City of Sheridan

United States v. Serrano-Rodriguez

Checkley v. Allied Property & Casualty Insurance Co.

Lewis v. Twenty-First Century Bean Processing

Collins v. Colvin

Fedorowicz v. Pearce

United States v. Turrentine

Nixon v. Ledwith

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