February 19, 2018

Archives for December 2017

Willful Blindness

We heard last time from Mats Alvesson and André Spicer and their book The Stupidity Paradox about “functional stupidity” — what happens when we stop thinking for ourselves and go along with the dumbing-down of our workplaces.

Prof. Spicer gave a TEDx Talk based on the book, beginning with a story from first-year torts: Grimshaw v. Ford Motor Company. You may recall that Ford’s upper management went ahead with the Pinto as originally designed, despite the infamous “Pinto Memo” finding that $11.00 worth of alterations per vehicle would have made it a whole lot safer. The result was the largest product liability damage award ever against a car manufacturer (as of that time). Clearly a case of “functional stupidity.”

Functional stupidity is the result of what psychologists call “cognitive bias”: engaging with experience only after we’ve filtered it first to conform to our habitual perceptions, assumptions, and prejudices. Journalist, filmmaker, and CEO Margaret Hefferman wrote the book on the subject: Willful Blindness: Why We Ignore the Obvious at our Peril (2011). Here’s her TED talk, and here’s a BrainPickings article about her book and about cognitive bias in general. Ms. Heffernan is a marvelous storyteller — she recounts story after jaw-dropping story from all arenas of life.

Cognitive bias is especially ironic in the legal profession, since the law itself doesn’t let you get away with it: the rule of “willful blindness” makes you culpable if you intentionally decide not to know about wrongdoing or deliberately fail to make a reasonable inquiry into it. “See no evil” isn’t going to fly.

How can we shake off our cognitive biases? As a friend of mine says, “The trouble with blind spots is you can’t see them.” Not only can’t we see them, we don’t want to either — and it doesn’t work to make them someone else’s problem. I ran several Google searches looking for articles about lack of independent thinking in the workplaces. Tweak my search as I might, it kept turning up advice like this one from Harvard Business Review, which trots out this worn out bit of conventional management advice: “It’s the employees’ fault, so here’s how a manager can fix them.” I really expected more from the HBR.

Instead of getting occupied with the speck in someone else eye when we’ve got a log in ours, we might follow the example of Ray Dalio, founder and chairman of hedge fund heavyweight Bridgewater Associates, who created a firm culture around “radical truth and radical transparency.” This is from the company’s website:

Our unique success is the direct result of our unique way of being. We want an idea meritocracy in which meaningful work and meaningful relationships are pursued through radical truth and radical transparency. We require people to be extremely open, air disagreements, test each other’s logic, and view discovering mistakes and weaknesses as a good thing that leads to improvement and innovation. It is by continually striving together for the highest levels of truth and excellence that we create meaningful work and meaningful relationships.

That last line is worth repeating:

It is by continually striving together for the highest levels of truth and excellence
that we create meaningful work and meaningful relationships.

Mr. Dalio’s firm culture is as cognitive-bias-busting as they come. If you’re intrigued, you might treat yourself to his talk. Click here or on the image below and scroll down a couple turns.

Whether or not you’re inclined to embrace Bridgewater’s radical firm culture, learning to see past our biases and get a fresh look might be a good addition to a New Year’s Resolutions list. Just an idea….

We’ll continue our search for a new perspective on economics and the workplace in 2018.

 

Kevin Rhodes left a successful long-term law practice to scratch a creative itch and lived to tell about it… barely. Since then, he has been on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. He has also blogged extensively and written several books about his unique journey to wellness, including how he deals with primary progressive MS through an aggressive regime of exercise, diet, and mental conditioning.

Tenth Circuit: Unpublished Opinions, 12/27/2017

On Wednesday, December 27, 2017, the Tenth Circuit Court of Appeals issued two published opinions and six unpublished opinions.

United States v. Martinez

May v. Allbaugh

United States v. Safford

Lane v. English

Mottas v. Department of Army

Akothe v. Bear

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

Judge Ted Tow III Appointed to Colorado Court of Appeals

On Friday, December 15, 2017, the governor appointed Judge Ted C. Tow, III, to the Colorado Court of Appeals. Judge Tow will fill a vacancy created by the retirement of Hon. Dennis Graham, effective February 12, 2018.

Judge Tow is currently a District Court Judge in the 17th Judicial District, where he has served since November 2010. He oversees a civil and domestic relations docket. Prior to his appointment to the bench, he practiced for several years in Chicago and Denver in labor and employment, then served as a Deputy District Attorney in the Seventeenth Judicial District for seven years. He was also the District Director for the Colorado District Attorneys’ Council prior to his appointment to the bench. He received his undergraduate degree from the University of Kansas and his law degree from Wayne State University Law School.

For more information about the appointment, click here.

Colorado Court of Appeals: Trial Court Erroneously Denied Defendant’s Challenge for Cause

The Colorado Court of Appeals issued its opinion in People v. Abu-Nantambu-El on Thursday, December 14, 2017.

Juror—Challenge for Cause—Law Enforcement Agency—C.R.S. § 16-10-103—Disqualification—Res Gestae Evidence.

Defendant forced his way into an apartment and physically attacked the occupants, one of whom died from the result of stab wounds. A jury convicted defendant of multiple offenses against two victims, including first degree murder (felony murder); second degree murder; first degree burglary (assault/menace); and first degree burglary (armed with explosives/weapon).

On appeal, defendant argued that the trial court erred in denying his challenge to a juror who was a compensated employee of a law enforcement agency. The Attorney General conceded that the court should have excused the juror, but contended that reversal was not required because the juror did not indicate that she was actually biased. The juror was disqualified under C.R.S. § 16-10-103(1)(k), which sets out categories of jurors deemed to be impliedly biased. This statute does not require a showing of actual bias that would violate due process.

Defendant also argued that the trial court erred in admitting as res gestae evidence about defendant’s emotional state after a friend (one of the victims at issue in this case) left him at a 7-Eleven store three days before the charged offenses. This evidence provided context for the jury and a more complete understanding of events leading up to the charged offenses and was properly admitted.

The judgment was reversed and the case was remanded for a new trial.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Announcement Sheet, 12/21/2017

On Thursday, December 21, 2017, the Colorado Court of Appeals issued no published opinion and 36 unpublished opinions.

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, 12/22/2017

On Friday, December 22, 2017, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

United States v. Ingram

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

Colorado Court of Appeals: Statutory “First Petition Filed with the Court” Language Does Not Encompass Later Additions

The Colorado Court of Appeals issued its opinion in People in Interest of I.S. on Thursday, December 14, 2017.

Juvenile—Sex Offender Registration—Exemption—C.R.S. § 16-22-103.

I.S., a juvenile, was originally charged in a delinquency petition with three felony counts of sexual assault on a child. Under a plea deal, the prosecution added a fourth misdemeanor count of unlawful sexual contact to its petition, to which I.S. pleaded guilty in return for the three felony counts being dismissed. At sentencing, I.S. argued that because the prosecution had added a misdemeanor offense to the first petition instead of filing a second petition, his misdemeanor offense had been charged in the first petition as required by C.R.S. § 16-22-103(5)(a)(III) and he was thus exempt from registering as a sex offender. Because the first petition filed with the court charged I.S. with the three felony counts of sexual assault on a child and not the misdemeanor, the district court ruled that I.S. must register as a sex offender.

On appeal, I.S. contended that the court erred in denying his request for exemption from sex offender registration. Under C.R.S. § 16-22-103(5)(a), a court may exempt a person from registering as a sex offender when five criteria are met, including the requirement that the first petition filed with the court must charge a misdemeanor offense of either unlawful sexual contact or indecent exposure. The “first petition filed with the court” does not encompass later amendments to that petition. Because the original petition in this case did not charge a misdemeanor offense of either unlawful sexual contact or indecent exposure, I.S. is not eligible for relief under this statute and must register as a sex offender.

The order was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: Juvenile Court Magistrate Has Jurisdiction to Consider Motion to Withdraw Previous Guilty Plea

The Colorado Court of Appeals issued its opinion in People in Interest of J.D. on Thursday, December 14, 2017.

Juvenile Delinquency—Plea Agreement—Ineffective Assistance of Counsel—Withdrawal of Plea—Magistrate—Jurisdiction.

J.D. appeared before a magistrate in a delinquency case. He was represented by counsel and signed an “advisement of rights in a juvenile delinquency proceeding” and pleaded guilty to acts that if committed by an adult would have constituted second degree criminal trespass. The magistrate accepted the plea and entered a one-year deferred adjudication. After the prosecution sought restitution and J.D. failed to file an objection within the deadline, the magistrate ordered restitution. Four months later and through new counsel, J.D. moved to withdraw his guilty plea under Crim. P. 32(d) based on ineffective assistance of plea counsel for improperly advising J.D. as to the likely restitution amount and the bankruptcy consequences of restitution, as well as failing to formally withdraw as J.D.’s counsel. The magistrate granted the motion and vacated the plea. On review, the district court judge held that the magistrate lacked jurisdiction to hear J.D.’s motion and vacated the order.

On appeal, J.D. argued that the magistrate had authority to enter the order withdrawing his guilty plea and the district court erred in vacating that order. Because the issue of which judicial officers have authority in particular cases is substantive, not procedural, the Children’s Code prevails over any conflicting provisions in the Colorado Rules for Magistrates. The Children’s Code authorizes the juvenile court to appoint magistrates “to hear any case or matter under the court’s jurisdiction, except where a jury trial has been requested . . . .” The magistrate had jurisdiction to consider J.D.’s Crim. P. 32(d) motion.

The district court’s order was reversed and the magistrate’s order vacating the plea was reinstated. The case was remanded to the district court to address the merits of the People’s petition to review the magistrate’s order under C.R.S. § 19-1-108(5.5).

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 12/21/2017

On Thursday, December 21, 2017, the Tenth Circuit Court of Appeals issued no published opinion and six unpublished opinions.

United States v. Coleman

Vasquez Arroyo v. Pryor

United States v. Reed

United States v. Etenyi

Jones v. Berryhill

United States v. Hopson

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

The Stupidity Paradox

Every day I ride a bus that has a row of seats up front that are folded up, with a sign next to them:

NOTICE
Seats Not in Service
The bus manufacturer has determined
that these seats not be used.

I’ve seen that sign for over a year. Never really thought about it. But recently I wondered: you don’t suppose both those seats and the sign were installed in the factory? It could happen — cheaper than a recall maybe. If so, it would be right in line with this week’s topic: a kind of on-the-job behavior that professors and business consultants Mats Alvesson and André Spicer[1] call The Stupidity Paradox.

Their book by that name began when they were sharing a drink after a conference and found themselves wondering, “Why was it that organisations which employed so many smart people could foster so much stupidity?” They concluded that the cause is “functional stupidity” — a workplace mindset implicitly endorsed because it works.

“We realized something: smart organisations and the smart people who work in them often do stupid things because they work — at least in the short term. By avoiding careful thinking, people are able to simply get on with their job. Asking too many questions is likely to upset others — and to distract yourself. Not thinking frees you up to fit in and get along. Sometimes it makes sense to be stupid.”

In fact, stupidity works so well it can turn into firm culture:

Far from being “knowledge intensive,” many of our most well-known chief organisations have become engines of stupidity. We have frequently seen otherwise smart people stop thinking and start doing stupid things. They stop asking questions. They give no reasons for their decisions. They pay no heed to what their actions cause. Instead of complex thought we get flimsy jargon, aggressive assertions or expert tunnel vision. Reflection, careful analysis and independent reflection decay. Idiotic ideas and practices are accepted as quite sane. People may harbour doubts, but their suspicions are cut short. What’s more, they are rewarded for it. The upshot is a lack of thought has entered the modus operandi of most organisations of today.

I.e., it pays to be stupid on the job: you get things done, satisfy expectations, don’t stand out from the crowd, aren’t labelled a troublemaker. We learned all of that in middle school; we learn it again on the job.

We learn from management:

A central, but often unacknowledged, aspect of making a corporate culture work is what we call stupidity management. Here managers actively encourage employees not to think too much. If they do happen to think, it is best not to voice what emerges. Employees are encouraged to stick within clearcut parameters. Managers use subtle and not so subtle means to prod them not to ask too many tough questions, not to reflect too deeply on their assumptions, and not to consider the broader purpose of their work. Employees are nudged to just get on with the task. They are to think on the bright side, stay upbeat and push doubts and negative thoughts aside.

And then we school ourselves:

Self-stupifying starts to happen when we censor our own internal conversations. As we go through our working day, we constantly try to give some sense to our often chaotic experiences. We do this by engaging in what some scholars call “internal reflexivity.” This is the constant stream of discussion that we have with ourselves. When self-stupidification takes over, we stop asking ourselves questions. Negative or contradictory lines of thinking are avoided. As a result, we start to feel aligned with the thoughtlessness we find around us. It is hard to be someone who thinks in an organization that shuns it.

Back to the seats on my bus… A “manufacturer” is a fiction, like “corporation” is a fiction: both act through humans. Which means that somewhere there’s an employee at a bus manufacturer whose job is to build those seats. Someone else installs them. Someone else puts up the sign. And lots of other people design, requisition, select, negotiate, buy, ship, pack and unpack, file, approve, invoice, pay bills, keep ledgers, maintain software, write memos, confer with legal, hold meetings, and make decisions. All so that the “manufacturer” — i.e., the sum total of all those people doing their jobs — can tell me not to sit there.

Functional stupidity is as common as traffic on your commute. We’ll look more into it next time.


[1] Mats Alvesson is Professor of Business Administration at the University of Lund, Sweden, University of Queensland, and Cass Business School, City University of London. André Spicer is Professor of Organisational Behaviour at Cass Business School, City University of London.

 

Kevin Rhodes is on a mission to bring professional excellence and personal wellbeing to the people who learn, teach, and practice the law. His past blog posts for the CBA have been collected in two volumes — click the book covers for more information.

Colorado Court of Appeals: Mother Had No Administrative Right to be Present at Child’s Placement Meeting

The Colorado Court of Appeals issued its opinion in People in Interest of C.J. on Thursday, December 14, 2017.

JuvenileDependency and NeglectKinship PlacementDue Process.

The Department of Human Services (Department) filed a petition in dependency and neglect after the child was born addicted to methadone and opiates. Several months later, the Department placed the child in foster care due to mother’s continued substance abuse. About six months later, a paternal aunt contacted the Department and expressed interest in caring for the child. Following a home study to evaluate the aunt as a placement option for the child and an administrative review, the Department decided not to recommend placement with the aunt. The trial court, citing the child’s emotional needs, her bond with her foster parents, and her lack of attachment with the aunt, denied mother’s request to permanently place the child with the aunt. Thereafter, the court terminated mother’s parental rights.

On appeal, mother argued that her due process rights were violated because she was denied the opportunity to be heard on the issue of the child’s placement. She asserted that if she or her attorney had been present at the Department’s administrative review, she could have provided evidence or alternatives to refute the Department’s reasons for disapproving the aunt’s home study. Mother’s due process rights were protected by her opportunity to challenge the Department’s recommendation at both the motions and termination hearings. The record establishes that the trial court afforded mother a full opportunity to be heard and to present evidence in contravention of the Department’s placement recommendation. Mother was not entitled to participate in the Department’s administrative review and thus had no right to assistance of counsel during that administrative review.

Mother also asserted that she did not timely receive a copy of the home study and thus had no notice of the basis for the Department’s decision and could not properly challenge it. Mother knew the home study had been completed and the burden was on her to request a copy of it. Mother failed to avail herself of the procedures that existed by which she could have timely obtained the information she sought and challenged the Department’s recommendation.

The judgment was affirmed.

Summary provided courtesy of Colorado Lawyer.

Colorado Court of Appeals: County Treasurer Must Exercise Due Diligence When Notice Returned Undelivered

The Colorado Court of Appeals issued its opinion in Wells Fargo Bank Financial Colorado, Inc. v. Olivas on Thursday, December 14, 2017.

TaxationSale of Tax LiensTax DeedNoticeDiligent Inquiry.

Buyers signed a deed of trust with Wells Fargo Financial Colorado, Inc. (WFFC) to secure a mortgage and an open-end deed of trust to Wells Fargo Financial Bank (WFFB) to secure a line of credit. Beginning in 2008, buyers failed to pay both the monthly mortgage installments to WFFC and the property taxes on their house. WFFC did not pay the taxes after September 2009, and Housman paid the 2009 taxes on October 20, 2010, when the Treasurer, Olivas, sold a tax lien on the house by public auction. Housman also paid taxes on the property for tax years 2010, 2011, and 2012. In 2013, Housman applied for a tax deed. In early January 2014, the Treasurer took steps pursuant to C.R.S. § 39-11-128 to notify all parties with an interest in the property of an impending issuance of a tax deed and a right to redeem. The notice to WFFC was returned as undeliverable as addressed. The notice to WFFB was not returned to the Treasurer. Believing that he had provided the required notice because one Wells Fargo entity had received the notice, the Treasurer issued Housman a tax deed on May 28, 2014. Housman sold the property to Moran a few weeks later, and Housman continued to hold a deed of trust on the property. In May 2015, WFFC filed a complaint for declaratory relief seeking to void the tax deed to Housman, the special warranty deed from Housman to Moran, and the deed of trust held by Housman. WFFC moved for summary judgment, and Housman and Moran cross-moved for summary judgment asserting, among other things, that WFFC’s complaint should be barred by laches. The district court granted summary judgment for defendants, concluding that Housman’s tax deed was valid.

On appeal, WFFC contended that the district court erred in granting summary judgment to defendants. A reasonably diligent treasurer should know that secured parties on different deeds of trust that secure different loan amounts, with different names and addresses, may not be so closely affiliated that notice to one may be assumed to effect notice to the other. The Treasurer failed, as a matter of law, to perform his statutory duty to exercise reasonable diligence in seeking an alternative address for WFFC. When notice is defective because it was given without the diligent inquiry required by law, the tax deed is voidable.

The judgment was reversed and the case was remanded for further proceedings on the affirmative defense of laches. If the court concludes that laches does not bar WFFC’s claims, it shall address the request for declaratory relief. If recovery of the land conveyed by the tax deed is effected by this suit, the court shall consider whether C.R.S. § 39-12-101 applies.

Summary provided courtesy of Colorado Lawyer.