January 16, 2018

Archives for December 2017

Tenth Circuit: Unpublished Opinions, 12/20/2017

On Wednesday, December 20, 2017, the Tenth Circuit Court of Appeals issued no published opinion and nine unpublished opinions.

Consolidation Coal Co. v. Director, Office of Workers’ Compensation Programs

United States v. Wade

Latin v. Bellio Trucking, Inc.

United States v. Chow

United States v. Davis

Azim v. Tortoise Capital Advisors, LLC

United States v. Verdin-Garcia

Montano v. Brennan

United States v. Mobarekeh

Case summaries are not provided for unpublished opinions.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

Use Quotations to Make a Point

Many lawyers fill briefs with quotations; too many quotations. A parade of quotations rarely helps readers. Here are some tips on when to use quotations and how to use them effectively.

Use Quotations Sparingly

Many briefs quote too often.[1] If you are analyzing the words in the quotation, use it. If the quotation has unique phrasing that pops, use it. But if you can say it better in your own words, don’t quote. Most of the time you can say it better and shorter by paraphrasing.[2]

Before

After

“Under Federal Rule of Civil Procedure 8(a)(2), a pleading must contain a ‘short and plain statement of the claim showing that the pleader is entitled to relief.” Ashcroft v. Iqbal, 556 U.S. 662, 677-78 (2009), quoting F.R.C.P. 8(a)(2). Complaints must contain a short and plain statement explaining why a claim succeeds. F.R.C.P. 8(a)(2).
“As the Court held in Twombly, 550 U.S. 544, 127 S.Ct. 1955, 167 L.Ed.2d 929, the pleading standard Rule 8 announces does not require ‘detailed factual allegations,’ but it demands more than an unadorned, the-defendant-unlawfully-harmed-me accusation.” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Although complaints do not require detailed factual allegations, they require more than bare accusations of harm. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).
“A pleading that offers ‘labels and conclusions’ or ‘a formulaic recitation of the elements of a cause of action will not do.’” Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009), quoting Bell Atlantic Corp. v. Twombly, 550 U.S. 544, 555 (2007). Complaints must state more than labels, conclusions, or a claim’s elements. Ashcroft v. Iqbal, 556 U.S. 662, 678 (2009).

Weave Quotations Into Your Argument

Here are some stereotypical introductions to quotations:

  • As the Supreme Court held in Smith v. Jones, “. . .
  • According to Smith v. Jones, “. . .
  • The statute reads: “ . . .
  • As one case held, “ . . .

Cut these. They add nothing except words. After you cut them, the meaning of the sentence is unchanged.

Then do even more. Legal writing specialist Ross Guberman provides several ways to enhance your argument with quotations. Rather than letting a quotation stand alone, each method ties the quotes to your case.[3]

Method 1: Introduce Quotations By Explaining How They Support Your Argument[4]

Introduce a quote by telling readers what you want them to take away from it.

Regardless of the policy’s merits, courts defer to codified legislative policies: “It is not for the courts to enunciate the public policy of the state if, as here, the General Assembly has spoken on the issue.” Grossman v. Columbine Med. Group, 12 P.3d 269, 271 (Colo. App. 1999).

  • During trial the victim emphasized repeatedly his confidence in the defendant’s identity: [quotes with record citations]

Method 2: Link a Party in Your Case With a Party in the Quotation[5]

Often briefs summarize a case and then compare the cited case to the case at issue. Combine these steps.

  • Where, as here, the interpreter did not testify, the agents present did not speak Spanish, and no one could testify whether the “interpreter indeed read the Defendant each of his Miranda rights off of the card” or “what the Defendant said in response to each of these warnings,” then the government has failed to meet its burden and
    the court must suppress the post-arrest statements. United States v. Sanchez-Manzanarez, 2012 WL 315870, *8 (S.D.N.Y. Feb. 2, 2012).

The prosecutor’s use of the term “lie” in closing argument is the exact conduct prohibited in Wend, where after reviewing the repeated use of “lie” in opening and closing arguments the Supreme Court held “a prosecutor acts improperly when using any form of the word ‘lie’ in reference to a witness’s or defendant’s
veracity.” Wend v. People, 235 P.3d 1089, 1096 (Colo. 2010).

Method 3: Link Your Case’s Facts with a Quoted Legal Standard[6]

You can use quotations to merge a statement of law with the facts of your case.

  • The late disclosure of Brady material shortly before closing arguments “meaningfully alter[ed]” the defendant’s strategy on critical issues like “how to apportion time and resources to various theories when investigating the case, [and] whether the defendant should testify,” which is precisely why “the belated disclosure of impeachment or exculpatory information favorable to the accused violates due process.” United States v. Burke, 571 F.3d 1048 (10th Cir. 2009).
  • Plaintiff’s claim that the defendant gave him a dirty look falls well short of the “high standard” for intentional infliction of emotional distress by outrageous conduct, because the conduct is not “so outrageous in character, and so extreme in degree, as to go beyond all possible bounds of decency.” Coors Brewing
    Co. v. Floyd
    , 978 P.2d 663, 665-66 (Colo. 1999).

 


[1] “A remarkably large number of lawyers seem to believe that their briefs are improved if each thought is expressed in the words of a governing case. The contrary is true.” Antonin Scalia & Bryan A. Garner, Making Your Case: The Art of Persuading Judges 127-28 (2008). See also Ross Guberman, Point Taken: How to Write Like the World’s Best Judges 140-47 (2015) (discussing use of quotations in opinions).

[2] “After you have established your major premise, it will be your reasoning that interests the court, and this is almost always more clearly and forcefully expressed in your
own words than in the stringing together of quotations from various cases. Such a cut-and-paste approach also produces an air of artificiality, even of lack of self-assurance. You want the court to develop confidence in your reasoning—not in your ability to gopher up supporting quotations” Scalia & Garner, supra n. 1 at 128. “Whether you’re a judge, advocate, or journalist, stringing together quotations is not ‘writing.’ A surgical strike with lean quoted language will often beat bulky block quotation bursting all over the page. And yet sometimes, when binding precedent is worded just right, even an economical judge will want to preserve the language in the original court’s own words.” Ross Guberman, Point Taken, supra n. 1 at 140.

[3] See also Bryan A. Garner, Legal Writing In Plain English 101-04 (2d ed. 2013) (discussing how to weave quotes into a narrative); Ross Guberman, Point Taken, supra n. 1 at 121-126 (discussing how opinions draw analogies to cited authority).

[4] Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 175-79 (2d ed. 2014) (applying strategy to block quotations); Ross Guberman, Point Taken, supra n. 1 at 140-41 (“For starters, don’t just dump the quote and run. Introduce a long quote the way you would introduce a stranger to a friend—by telling the friend about what they have in common, and why this new person might be interesting to get to know.”).

[5] See Ross Guberman, Point Made: How to Write Like the Nation’s Top Advocates 131-32 (2d ed. 2014).

[6] See id. at 133-34 (2d ed. 2014).

 

Michael Blasie graduated from the New York University School of Law. He began his career as a commercial litigator and criminal defense attorney in the New York City office of Cooley LLP where he practiced in state and federal trial and appellate courts. After five years he moved to Denver where he currently works as a law clerk to the Honorable David J. Richman of the Colorado Court of Appeals. Michael also serves as a volunteer firefighter for the City of Golden.

Colorado Supreme Court: Special Circumstances Are Required to Disqualify District Attorney’s Office

The Colorado Supreme Court issued its opinion in People v. Epps on Monday, December 18, 2017.

Disqualification—Request for Disqualification—Special Circumstances.

In this interlocutory appeal, the Colorado Supreme Court reviewed the district court’s order disqualifying the District Attorney’s Office for the Fifth Judicial District from re-prosecuting defendant’s case after a mistrial. The district court issued its order after defendant had endorsed the deputy district attorney prosecuting the case as a witness for the retrial. Defendant proposed calling the deputy district attorney to testify regarding a courtroom altercation between defendant and the alleged victim’s husband after the district court declared the mistrial.

The court reversed the district court’s order. In disqualifying the District Attorney’s Office, the district court relied on its erroneous understanding that the People had not objected to the disqualification. Moreover, the court concluded that the deputy district attorney’s proffered testimony would not be of sufficient consequence to deny defendant a fair trial. Accordingly, this case lacks the special circumstances required by C.R.S. § 20-1-107(2) to justify the district attorney’s disqualification, and therefore the district court abused its discretion in entering the disqualification order.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Sovereign Immunity Does Not Bar Attorney Fee Award Against Government Entity

The Colorado Supreme Court issued its opinion in C.K. v. People in Interest of L.K. on Monday, December 18, 2017.

Discovery Sanctions—Attorney Fees—Sovereign Immunity.

In this case, the Colorado Supreme Court considered the narrow question of whether sovereign immunity bars an award of attorney fees against a public entity. The court concluded that sovereign immunity does not bar an award of attorney fees against a public entity because sovereign immunity does not presumptively protect the state of Colorado and Colorado’s Governmental Immunity Act does not provide immunity for an award of attorney fees against a public entity. Accordingly, the court reversed the court of appeals’ judgment and remanded to that court for proceedings consistent with this opinion.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Minimum Sentence for Indeterminate Range Should Be Three Times the Presumptive Maximum

The Colorado Supreme Court issued its opinion in Isom v. People on Monday, December 18, 2017.

Sentencing—Statutory Interpretation.

In this case, the Colorado Supreme Court considered the minimum end of a habitual sex offender’s indeterminate sentence pursuant to C.R.S. § 18-3-1004(1)(c). The court held that the enhanced minimum end in a habitual sex offender’s sentence is set to three times the presumptive maximum unless the court makes a finding of extraordinary aggravating circumstances pursuant to C.R.S. § 18-3-401(6), in which case the enhanced minimum end of the offender’s indeterminate sentence may be set anywhere between triple and sextuple the presumptive maximum otherwise prescribed for the offense.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 12/19/2017

On Tuesday, December 19, 2017, the Tenth Circuit Court of Appeals issued two published opinions and five unpublished opinions.

Mathison v. Wilson

United States v. Gonzalez-Arenas

United States v. Mobley

United States v. Cravens

United States v. Tolentino

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

Colorado Supreme Court: Corporate Veil Properly Pierced to Impose Attorney Fees on LLC Manager

The Colorado Supreme Court issued its opinion in Stockdale v. Ellsworth on Monday, December 18, 2017.

Corporations—Piercing the Corporate Veil—Attorney Fees—Joinder.

The Colorado Supreme Court reversed the Colorado Court of Appeals’ opinion vacating the trial court’s judgment awarding attorney fees. The court held that the trial court properly pierced the corporate veil to impose joint and several liability on a limited liability company’s managing member for attorney fees. The court also held that the managing member was properly joined as a party to the litigation, and that imposing such liability did not violate the managing member’s due process rights under the circumstances of this case.

Summary provided courtesy of Colorado Lawyer.

Colorado Supreme Court: Warrantless Searches Justified by Probable Cause or Exigent Circumstances

The Colorado Supreme Court issued its opinion in People v. Ball on Monday, December 18, 2017.

Scope of an Investigatory Stop—Domestic Violence—Custodial Interrogation—Automobile Exception.

The People filed an interlocutory appeal, as authorized by C.R.S. § 16-12-102(2) and C.A.R. 4.1, from an order of the district court suppressing statements made by, and contraband seized from, Ball. Although the district court found her initial stop to be supported by reasonable articulable suspicion, it nevertheless found that before she made any inculpatory statements, the seizure of her person had exceeded the permissible scope of an investigatory stop; that she was already under arrest by the time she was interrogated without the benefit of Miranda warnings; and that her subsequent consent to search her purse and car was not voluntary.

The Colorado Supreme Court reversed the district court’s suppression order and remanded the case for further proceedings. The court held that the district court either misapprehended or misapplied the controlling legal standards governing investigatory stops, arrests, and custodial interrogations, and that the warrantless searches of defendant’s car and purse were justified on the basis of probable cause and exigent circumstances, without regard for the voluntariness of her consent or compliance with the dictates of C.R.S. § 16-1-301, the statute governing consensual vehicle searches in this jurisdiction.

Summary provided courtesy of Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 12/18/2017

On Monday, December 18, 2017, the Tenth Circuit Court of Appeals issued six published opinions and five unpublished opinions.

Nunes-Robles v. Sessions

Estate of Ronquillo v. City & County of Denver

United States v. White

United States v. Johnson

United States v. Hennis

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

Colorado Supreme Court: Announcement Sheet, 12/18/2017

On Monday, December 18, 2017, the Colorado Supreme Court issued five published opinions.

People v. Ball

Stockdale v. Ellsworth

Isom v. People

C.K. v. People in Interest of L.K.

People v. Epps

Summaries of these cases are forthcoming.

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, 12/15/2017

On Friday, December 15, 2017, the Tenth Circuit Court of Appeals issued two published opinions and three unpublished opinions.

Robertson v. Biby

Gale v. Uintah County

United States v. Black

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

Professor Melissa Hart Appointed to Colorado Supreme Court

On Thursday, December 14, 2017, the governor announced his appointment of Melissa Hart to the Colorado Supreme Court. Hart will fill a vacancy created by the appointment of Hon. Allison Eid to the U.S. Court of Appeals for the Tenth Circuit. Hart’s appointment is effective immediately.

Hart is currently a full tenured law professor at the University of Colorado Law School. She teaches courses in employment discrimination, legal ethics, constitutional law, judicial procedure and judicial decision making. She is also the Director of the Byron White Center for the Study of American Constitutional Law. A 1995 graduate of Harvard Law School, she clerked for Judge Guido Calabresi of the Second Circuit and for Justice John Paul Stevens on the United States Supreme Court. Professor Hart practiced law for several years in Washington, D.C., including as a Trial Attorney at the U.S. Department of Justice.  Melissa’s scholarship focuses primarily on employment discrimination and civil procedure. She remains active in the legal community, regularly handling pro bono cases and serving on the Colorado Access to Justice Commission and the Colorado Supreme Court’s Judicial Ethics Advisory Committee and Board of Continuing Judicial and Legal Education. She has authored several amicus briefs in employment discrimination and constitutional cases before the U.S. Supreme Court and in other matters before the Colorado Supreme Court and several federal courts of appeals.

For more information about the appointment, click here.