May 27, 2017

Archives for April 14, 2016

Professional Paradigms New and Old (Part 4): Failure As A Virtue

rhodesAs we saw last week, one way to engage with a paradigm shift is to “walk in stupid every day.” That won’t be easy for professionals: our job is to be smart; our brains are culturally wired with that expectation. Being “stupid” turns that cultural expectation on its ear, makes our brain circuits fritz.

So does another powerful paradigm-busting tool: learning to embrace failure. Professional cultural paradigms include conventional wisdom about how to succeed; flying in the face of them is a set up for failure.

In their book Wired to Create (which we looked at last time), Scott Barry Kaufman and Carolyn Gregoire cite the work of psychologist Robert J. Sternberg, who identified several key attributes of people who are “willing to generate and promote ideas that are novel and even strange and out of fashion” — i.e., who would embrace a paradigm shift. According to Dr. Sternberg, that kind of person:

  • Tries to do what others think is impossible;
  • Is a noncomformist;
  • Is unorthodox;
  • Questions societal norms, truisms, and assumptions.

Life is risky for nonconformists. According to Kaufman and Gregoire:

Sternberg found that artists [who participated in his study] said that a creative person is one who takes risks and is willing to follow through on the consequences of those risks. Businesspeople, meanwhile, responded that a creative person in the business world is one who steers clear of the pitfalls of conventional ways of thinking.

The inherent risks of unconventional thinking require a willingness to fail — so says organizational psychologist Adam Grant in his TED talk on “The Surprising Habits of Original Thinkers”:

The greatest originals are the ones who fail the most, because they’re the ones who try the most. You need a lot of bad ideas in order to get a few good ones.

No wonder W+K — the uber-creative ad agency we looked at last time — has a Fail Harder Wall.

Then what about our professional obligation to be smart, and steer clear of risk and failure? David P Barash, evolutionary biologist and professor of psychology and biology at the University of Washington, tackles that conundrum in an article entitled “Paradigms Lost” that begins this way:

Science is not a “body of knowledge” – it’s a dynamic, ongoing reconfiguration of knowledge and must be free to change.

The capacity for self-correction is the source of science’s immense strength, but the public is unnerved by the fact that scientific wisdom isn’t immutable. Scientific knowledge changes with great speed and frequency – as it should – yet public opinion drags with reluctance to be modified once established. And the rapid ebb and flow of scientific “wisdom” has left many people feeling jerked around, confused, and increasingly resistant to science itself.

Unlike science, the law profession’s conventional cultural paradigm does not embrace change “with great speed and frequency.” On the other hand, the new paradigm/technology-driven legal practice developments do precisely that — which, according to the existing paradigm, makes them a high risk, fast road to failure.

Those who choose to innovate in the face of this risk need creativity and courage. Once again, this is from Wired to Create:

The history of creative thought and social progress is littered with similar stories of banned books, culture wars, persecuted artists, and paradigm-shifting innovations that change the way we look at the world.

In choosing to do things differently, [creative people] accept the possibility of failure — but it is precisely this risk that opens up the possibility of true innovation.

But can a professional paradigm truly embrace failure? More next time.

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Check out this collection of last year’s Future of Law blog posts. It’s a FREE download. Also included is the Culture of Law series from the second half of 2015. Click this link or the cover for downloading details.

Colorado Court of Appeals: County’s Master Plan Retained Advisory Status when Not Incorporated Into Land Development Code

The Colorado Court of Appeals issued its opinion in Friends of the Black Forest Preservation Plan, Inc. v. Board of County Commissioners on Thursday, April 7, 2016.

C.R.C.P. 106(a)(4)—Special Use Permit Appeal—Binding Nature of Master Plans.

Under C.R.C.P. 106(a)(4), plaintiffs, Friends of Black Forest Preservation Plan, Inc. and several residents of the Black Forest area, appealed the district court’s judgment affirming the decision of defendant Board of County Commissioners of El Paso County (Board) approving the special use permit application of defendant Black Forest Mission, LLC (BFM) to construct a greenhouse operation in the Black Forest Preservation area.

BFM proposed to construct a 1.19-acre greenhouse on a 4.87-acre lot it owned in an area governed by the Black Forest Preservation Plan (BFPP), which is contained within El Paso County’s overall master plan. Greenhouses are allowed if less than one acre in size, but a special use permit is required for larger greenhouses.

The Planning Commission recommended by a 6–2 vote that the Board deny BFM’s application for a special use permit because of its inconsistency with both El Paso County’s Policy Plan and the BFPP. At the first hearing before the Board, BFM was granted a continuance to amend its application to attempt to ameliorate various concerns of the Planning Commission and residents. At the next hearing, BFM presented a revised plan proposing three smaller greenhouses that collectively would be larger and would be built on two parcels instead of one. BFM also modified the location to address concerns about light pollution, view obstruction, and traffic congestion. The Board approved BFM’s amended special use application by a vote of 3–2.

Plaintiffs filed this action, arguing the Board misapplied governing law and abused its discretion because of its belief, as relayed by a county attorney, that the county’s master plan was merely advisory. The district court affirmed the Board’s decision, agreeing that the county’s master plan was advisory and there was competent evidence in the record supporting the Board’s decision to approve BFM’s special use permit application. Plaintiffs appealed.

The court of appeals noted that C.R.S. § 30-28-106 provides that master plans may be made binding by formal inclusion in county land use regulations. The court undertook an extensive analysis of El Paso County’s land use regulation scheme and rejected plaintiffs’ argument that the Board’s approval was based on an erroneous legal standard, concluding there was a reasonable basis for the Board’s interpretation of its own regulatory framework. It held that the master plan was advisory and the Board has discretion in deciding how to apply the master plan in its decisions on special use applications.

Plaintiffs also argued it was error for the district court to find competent evidence in the record to support the Board’s decision. The court disagreed.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Dog Owner Owes No Duty of Care to Person Injured by Truck Off Property

The Colorado Court of Appeals issued its opinion in Lopez v. Trujillo on Thursday, April 7, 2016.

Dog Owner Liability—Duty of Care—Premises Liability Act Definition of Landowner.

Plaintiffs, N.M. and his parent and legal guardian, Lopez, appealed from an order dismissing their complaint against defendant Trujillo.

Eight-year-old N.M. was walking on a sidewalk with another boy. As he passed defendant’s home, two large, loudly barking pit bulls rushed at the boys, unprovoked. The dogs jumped up and rattled a four-foot high chain-link fence. N.M. was allegedly so frightened that he darted from the sidewalk into the street and was struck by a service van, causing him serious injuries. Plaintiffs sued and settled with the driver and owner of the van.

On appeal, plaintiffs argued the district court erred in concluding as a matter of law that defendant owed no duty to N.M and was not subject to liability as a “landowner” under the Premises Liability Act (PLA).

Deciding an issue of first impression, the court of appeals considered whether a dog owner owes a duty to exercise reasonable care to an injured party when the injured party was not directly injured by the dogs or on the dog owner’s property and the dogs remained confined and never left the landowner’s property. The court held there was no such duty.

The court also agreed with the district court that public sidewalks adjacent to a landowner’s property are not property of the landowner under the PLA.

The judgment was affirmed.

Summary provided courtesy of The Colorado Lawyer.

HB 16-1165: Changing Colorado Child Support Guidelines Pursuant to Commission’s Findings

On January 28, 2016, Reps. KC Becker & Lois Landgraf and Sen. Larry Crowder introduced HB 16-1165 – Concerning Statutory Changes Based on the Recommendations in the Report of the 2013-2015 Colorado Child Support Commission. The bill was introduced in the House Public Health Care & Human Services Committee, where it was amended and referred to the House Committee of the Whole for Second Reading. The bill passed Second Reading with amendments in the House and passed Third Reading unamended. In the Senate, it was introduced in the Health & Human Services Committee, where it passed through unamended. The bill passed Second and Third Reading in the Senate with no amendments and is now on its way to the governor for signature.

This bill makes several changes to the Colorado child support guidelines and related statutes. First, the bill permits the State Child Enforcement Agency to attach an administrative lien on insurance claim payments, awards, or settlements to satisfy and obligor’s past-due child support, past-due spousal maintenance, or a combination of the two. The bill applies to all child support and spousal maintenance obligations, regardless of when the obligation was ordered by the court. The lien may be placed on insurance claim payments made payable to the obligor that are in excess of $1,000, resulting from personal injury, wrongful death, or workers’ compensation claims. The bill exculpates insurance companies and their agents for any good faith conduct made pursuant to the proposed amended section of the Colorado Revised Statutes.

Second, the bill makes a number of changes to the child support guidelines contained in C.R.S. § 14-10-114, including: (1) requiring a deduction from a parent’s gross income prior to calculating child support for the actual amount paid for another child’s court ordered support (regardless of where the other child is living), while applying the gross income calculation of paragraph (b) of the subsection to parents whose other child(ren) is/are living with the parent; (2) amending the definition of “shared physical care” by including as a reason for deviating from the child support guidelines instances where one parent spends substantially more time with the child than is reflected by a calculation of the number of overnights; (3) allowing a court to not require a parent to include a child or children on a health insurance policy where the policy’s premium payment is 5 percent of the parent’s gross income (reducing from 20 percent); and (4) requiring parents to exchange financial information relevant to child support calculations on changes that have occurred since the entry of the child support order.

Third, the bill establishes a five-year prohibition on retroactive modification of child support based on change in physical custody pursuant to C.R.S. § 14-10-122.

Fourth, the bill requires service by a single publication not less than five days prior to any hearing on paternity adjudication for any party (i.e., natural mother, each presumed father, and each man alleged to the natural father) who does not reside in Colorado and whose place of residence is not known, or when the person cannot be found within Colorado after due diligence.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

HB 16-1156: Prohibiting Actions Against Employees for Sharing Wage Information

On January 28, 2016, Reps. Jessie Danielson & Joseph Salazar and Sens. Kerry Donovan & Rollie Heath introduced HB 16-1156 – Concerning the Prohibition of an Action Against an Employee for Sharing Wage Information. The bill was introduced into the House Business Affairs and Labor Committee, where it passed unamended. It passed Second and Third Reading in the House unamended and was introduced in the Senate in the State, Veterans, & Military Affairs Committee. It passed through that committee unamended and was referred to the Senate Committee of the Whole for Second Reading.

Current law states that it is a discriminatory and unfair labor practice for an employer to discharge, discipline, discriminate against, coerce, intimidate, threaten, or interfere with any employee or other person because the employee inquired about, disclosed, compared, or otherwise discussed the employee’s wages, unless otherwise permitted by federal law. Certain classes of employers who are exempt from the National Labor Relations Act are also exempt from the aforementioned labor practice provision. This bill abolishes the reference to the exemption and extends the current law to those classes of employers previously exempt, thereby providing discrimination protections to all employees.

Max Montag is a 2016 J.D. Candidate at the University of Denver Sturm College of Law.

Tenth Circuit: Unpublished Opinions, 4/13/2016