April 18, 2014

Probate Litigation Depositions – Not Your Grandmother’s Deposition

Probate Litigation ImageProbate litigation depositions can be many things – tense, perhaps emotionally draining for the deponent and the parties. But as David R. Struthers of Godfrey | Johnson PC illustrates, learning about probate depositions can be entertaining as well.

His tongue-in-cheek materials discuss the prudence of determining in each case whether it is desirable to “open the door of discovery,” despite the endless enjoyment every lawyer derives from conducting depositions. Amidst the humor are practical tips, such as applying to the probate court to use the Colorado Rules of Civil Procedure in order to engage in discovery and requesting permission to videotape the deposition. Struthers is truly a splendid wordsmith who excels at cleverly crafting instructional materials disguised as humor. But his true talent is with the guitar.

In the video clip below, Struthers explains the difficulty in removing a troublesome client who returns to Spencer Crona’s door every single day.

Click here to view online.

CLE Homestudy: Probate Litigation Depositions – Not Your Grandmother’s PI Depo

This CLE presentation took place on March 4, 2014. Click the links below to order the homestudy — MP3 audio downloadVideo OnDemand

Workplace Privacy To Be Discussed at Employment Law 2014 Conference in March

One of the hot-topic issues for employment law today is workplace privacy. Qusair Mohamedbhai, a leading Colorado employment law attorney, and Philip Gordon, a leading privacy attorney who focuses on HR privacy issues, will tackle this complex and rapidly evolving area of the law at the CBA-CLE 2014 Employment Law Conference on March 20-21. Expect a lively and informative discussion including critical privacy and information security issues raised by the “Bring Your Own Device” (BYOD) movement and how recent state laws and EEOC guidelines can impact workplace privacy policies involving background checks, especially the use of an employees’ criminal history for employment purposes, and access to employees’ personal social media. Below are excerpts from their upcoming presentation.

Workplace Privacy:
“In the coming year, employers may expect to see more restrictions on access to applicants’ and employees’ criminal history, credit information, and personal social media content.  To further complicate the challenges of addressing privacy in the workplace, employers will be required to grapple with next-generation issues raised by the use of social media as a business tool and the increasing adoption of “bring-your-own-device” (BYOD) programs.  The ever-shifting balance between employer prerogative and employee privacy likely will continue to move in a direction that favors employee privacy.” –  Philip L. Gordon, Littler Mendelson

Workplace Privacy: Criminal Background Checks & Victims of Crimes:
2012 EEOC Guidance on Arrest and Conviction Records in Employment Decisions: For criminal conduct exclusions in hiring practices that are alleged to have an unlawful disparate impact, relevant information includes the text of the policy or practice, associated documentation, and information about how the policy or practice was actually implemented. For example, the EEOC may look for offenses or classes of offenses that were reported to the employer (all felonies, all drug offenses) or how far back in time the report reached. 2012 WL1499883 § V (E.E.O.C. Guidance Apr. 25, 2012). – Qusair Mohamedbhai, RATHOD ǀ MOHAMEDBHAI LLC

CLE Program: Employment Law 2014

This CLE presentation will take place on March 20-21, 2014. Click here to register for the live program. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemandCD homestudy

The New Public Benefit Corporations Act — Unique Features of the Colorado Act

In 2013, the Colorado General Assembly passed HB 13-1138 - Concerning Benefit Corporations, and, In Connection Therewith, Making an Appropriation. Governor Hickenlooper signed the bill into law on May 5, 2013, to be effective April 1, 2014. The bill creates a new category of business operation in Colorado – benefit corporations are designed as for-profit corporations that can elect to pursue a humanitarian interest without contraventing the shareholders’ stake in maximizing profits.

The Public Benefit Corporation Act (PBC Act) details requirements for corporations wishing to be considered “benefit corporations.” As defined in the PBC Act, “‘Public benefit’ means one or more positive effects or reduction of negative effects on one or more categories of persons, entities, communities, or interests other than shareholders in their capacities as shareholders, including effects of an artistic, charitable, cultural, economic, educational, environmental, literary, medical, religious, scientific, or technological nature.” This broad definition allows corporations much leeway in determining the public benefits they will offer.

A feature of Colorado’s PBC Act that is not mirrored in most other states allowing benefit corporations is that the Colorado Public Benefit Corporation must state its public purpose with specificity. In the clip below, J. William Callison of Faegre Baker Daniels explains some of the requirements of the PBC Act, with an example of a specific benefit outlined. Also appearing in the video are Herrick K. Lidstone, Jr., of Burns Figa & Will, and Carla Hoke of the Colorado Secretary of State’s office.

Click here to view online

The Colorado Public Benefit Corporation Act is legislation that every Colorado business law practitioner should become familiar with before its effective date of April 1, 2014. Click the links below to order the full homestudy.

CLE Homestudy: Public Benefit Corporation Act, Effective April 1, 2014

This CLE presentation took place on February 12, 2014. Click here to order the Video On Demand and watch the entire presentation online, click here for the MP3 Audio Download homestudy, click here for the CD homestudy, or call (303) 860-0608 to order by phone.


The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws

Qusair Mohamedbhia Bio PicBy Qusair Mohamedbhai

It is not every day that lawyers from the ACLU and Focus on the Family share a public stage to debate religious freedoms and workplace anti-discrimination laws. In recent years, tensions between employee anti-discrimination rights in the workplace and religious freedoms of employers have dramatically increased in magnitude and complexity. In the last decade, courts have significantly expanded the rights of religious employers. Additionally, religion-based discrimination charges filed with Equal Employment Opportunity Commission have more than doubled in the past fifteen years. And employees’ rights in the areas of sexual orientation and healthcare have been affected by employers claiming to be governed by faith-based principles.

“The Intersection of Religious Freedoms and Workplace Anti-Discrimination Laws,” which was part of a larger CLE in Colorado, Inc. program titled “Workplace Discrimination,” produced a lively and informative discussion. The presenters debated the tension between anti-discrimination laws including the Colorado Anti- Discrimination Act’s inclusion of sexual orientation as a protected class, and laws protecting religious employers’ rights including the Free Exercise Clause and Religious Freedom Restoration Act. As expected, the ACLU and Focus on the Family had divergent opinions on matters related to the contraceptive mandate issued by the U.S. Department of Health and Human Services and religious employer exemptions. The panelists also debated the holdings, reach, and implications of recent high-profile decisions spanning a variety of related topics including the cases of Hosanna-Tabor, Windsor, Hobby Lobby, Abercrombie & Fitch, Little Sisters of the Poor, and Masterpiece Cakeshop Lakewood Bakery. The presenters and moderator demonstrated extraordinary knowledge of these difficult constitutional law matters, as well as theological arguments, historical context, and pragmatic public policy consequences.

Click here to view online

Panelists: Mark Silverstein, Esq., American Civil Liberties Union of Colorado, L. Martin Nussbaum, Esq., Lewis Roca Rothgerber LLP, and Bruce Hausknecht, Esq., Focus on the Family. Moderator: Scott L. Levin, Esq., Regional Director, Mountain States Region, Anti-Defamation League.

Qusair Mohamedbhai, Esq., is a partner at Rathod | Mohamedbhai llc. His practice is exclusively in the areas of plaintiff’s employment discrimination and constitutional civil rights litigation. He advocates for the rights of employees in the workplace, and for the civil rights of all individuals against governmental and institutional abuses of power. He is a National Institute for Trial Advocacy trial skills and techniques faculty member, co-chair of the Employment Law Section for the Colorado Trial Lawyers Association, and General Counsel to the Colorado Muslim Society. He received his Bachelor of Science in biology from the University of Alberta in 2000, and his Juris Doctorate from the University of Wyoming in 2003.

CLE Homestudy: Workplace Discrimination

This CLE presentation took place on January 10, 2014. Click here to order the Video OnDemand, click here for the MP3 audio download, and click here for the CD homestudy. You may also call (303) 860-0608 to order.

Colorado Adopts Tougher Air Rules for the Oil and Gas Industry—The First in the Nation

BillRitterColorado air quality control commissioners voted 8-1 on Sunday to pass tougher air pollution rules for the oil and gas industry. The rules are the first in the nation designed to detect and reduce methane emissions, a gas linked to climate change. The impetus for the change was the failure of Front Range air to meet federal health standards.

Trying to satisfy environmental needs with those of the oil and gas industry can by difficult, as evidenced by the objections of the Colorado Oil and Gas Association and the Colorado Petroleum Association. The rule changes did, though, have the support of leading oil and gas companies including Anadarko Petroleum, Noble Energy, and Encana.  The impact of these new rules could be tremendous for environmental lawyers and those practicing in the area of Natural Resources & Energy.

This Friday, Feb. 28, the CBA Environmental Law Section is co-sponsoring a program with Colorado Bar Association CLE, “Oil & Gas Development in Colorado: Balancing Energy and the Environment.” Will Allison, the director for the Air Pollution Division, Colorado Department of Public Health and Environment, will review the new pollution rules and the potential effects in Colorado. Bill Ritter, former governor and now director for the Center for the New Energy Economy, is the keynote speaker and will address the challenges of balancing energy production and new environmental regulation in Colorado.

Other energy and environmental experts are speaking at the program including leaders from the Colorado Oil & Gas Commission, the Colorado Department of Natural Resources, and Colorado energy companies and law firms.

Scott Clark, chair for the program and attorney with Burns, Figa, & Will said, “This program will provide a balanced and focused look at key issues raised by the explosion of oil and gas development in Colorado.”

CLE Program: Oil & Gas Development in Colorado – Balancing Energy and the Environment

This CLE presentation will take place on February 28, 2014. Click here to register for the live program, and click here to register for the webcast. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemandCD homestudy

Mental Health Experts and the Look of Science

Dr-JohnBy John A. Zervopoulos, Ph.D., J.D., ABPP

Do you know what science looks like?—a key Daubert/Shreck-era question for mental health experts. Statistics? Publications? A body of facts? Don’t view these badges as proofs of science. Instead, step back and view science as a mindset, a way of doing critical thinking—how one assesses which ideas are reasonable and which are not. A basic question highlights the scientific inquiry: “How do you know what you say you know?”

Too often we mistakenly accept imposters of science. Daubert caselaw, addressing this problem, stresses that courts must look past the badges of science to determine whether to trust the expert’s testimony. For example, pronouncements from experts with sterling qualifications don’t by themselves certify the testimony as trustworthy. Kumho Tire Co. v. Carmichael, 526 U.S. 137, 157 (1999). Publication—one element of peer review—is not a sine qua non of admissibility; it does not necessarily correlate with reliability. Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579, 593 (1993). General acceptance does not help show that an expert’s testimony is reliable where the discipline itself lacks reliability, as, for example, do theories grounded in any so-called generally accepted principles of astrology. Kumho Tire Co., 526 U.S. at 151.

The late physicist Richard Feynman told a classic tale, Cargo Cult Science, to analogize how some people use the look of science to try to emulate real science. He described a group of South Sea people who had seen airplanes deliver cargos of goods and materials to their islands during World War II. After the War, these islanders wanted the imports to continue—but the pilots had gone home. So, the islanders set out to re-create the setting: They made runways; a hut for a man, the controller, to sit in; two bamboo pieces as antennae for the man to strap to his head. Then everyone waited for airplanes to land. The islanders, from their view, did everything right. The form seemed perfect, but no airplanes landed. The islanders were missing something essential.

Feynman’s point—and Daubert’s: Mental health experts, like the islanders, sometimes highlight badges of science to prove their testimony but neglect to exercise the essential critical thinking that science and caselaw require. Ask, “How do you know what you say you know?”—repeatedly, if necessary—to expose the bases of mental health testimony. Cargo cult science or critical thinking-based science?

John A. Zervopoulos, Ph.D., J.D., ABPP is a forensic psychologist and lawyer who directs PsychologyLaw Partners, a forensic consulting service providing consultation to lawyers on psychology-related issues, materials, and testimony. His second book, How to Examine Mental Health Experts: A Family Lawyer’s Guide to Issues and Strategies, is newly published by the American Bar Assn. He is online at www.psychologylawpartners.com and can be contacted at 972-458-8007 or at jzerv@psychologylawpartners.com.

CLE Program: How to Examine Mental Health Experts: A Practical Plan

This CLE presentation will take place on March 6, 2014. Click here to register for the live program, and click here to register for the webcast. You may also call (303) 860-0608 to register.

Can’t make the live program? Order the homestudy here — MP3 audio downloadVideo OnDemandCD homestudy

Online Marketing for Solo Practitioners and Small Law Firms

When you hear the words “online marketing,” what is your reaction? According to Martha Cusick Eddy, director of Catapult Growth Partners, some reactions she elicits with those words include “hype” and “I hate it.” Ms. Eddy and Phil Nugent, founder and managing director of NCG Strategic Marketing, recently spoke at CLE for the monthly Solo/Small Firm section luncheon, and stressed that although the phrase “online marketing” may evoke a visceral reaction, marketing is not hype.

In the clip below, Ms. Eddy explains that marketing is an opportunity to show potential clients why they should choose you to represent them by providing value-based marketing.

This snippet illustrates that online marketing can be a great tool for practitioners to attract and identify ideal clients. The program also discussed the reality of the business of law in today’s technological world, creating an online marketing strategy, the importance of search engine optimization, aspects of social networking, and more. To order the full video, click the links below.

CLE Homestudy: Online Marketing for Solo Practitioners and Small Law Firms

This CLE presentation took place on February 10, 2014. Click here to order the Video On Demand and watch the entire presentation online, or click here for the MP3 Audio Download homestudy.

Note: This program was not submitted for CLE credit.

Deposition Strategy and Technique – Five Tips For Your Next Deposition

DaveMarkowitzEvery litigator will conduct a deposition at some point in his or her career. Depositions are a chance for the litigator to obtain favorable (or unfavorable) evidence to use as part of the overall trial strategy. To quote Paul Gordon, however, “Depositions are one of the several points of friction between the science of practicing law and the art of practicing law. Understanding depositions is an essential tool for every litigator.”

Nationally renowned speaker David “Dave” Markowitz will be at the CLE offices on Wednesday, December 11, 2013, to teach about deposition strategies and techniques. He will share ten important goals for the litigator to accomplish in the deposition, including how to avoid undesirable results. Some of those goals are outlined here:

  1. Each deposition question should be aimed at accomplishing the desired result – the deposed witness should be questioned on relevant facts in order to create admissions to use at trial.
  2. Never attempt to accomplish improper deposition goals, such as deliberately trying to incur expense for the opponent.
  3. Determine what the big questions are and ask them. If they are answered, they will directly accomplish a major goal.
  4. Identify lying witnesses. Video record the deposition to visually demonstrate untruthfulness.
  5. Be thorough – decide which goals are the most important and spend the most time on these, while not neglecting points that are less important but will still help accomplish your goals.

If you are a litigator, or any attorney who conducts depositions, do not miss Dave Markowitz’s program on Wednesday, December 11. Click here to register or click the links below.

Dave Markowitz is considered by his peers to be among the best trial lawyers in the Northwest. His commanding presence and keen instincts have made him a courtroom icon. Over the last three decades, Dave has shepherded the firm from its beginning as an ambitious two-attorney litigation shop to its present status as one of the premier business litigation firms in the region.


CLE Program: Deposition Technique and Strategy with David Markowitz

This CLE presentation will take place on December 11, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.

Ted Atlass: Master of Tax Issues in Trust and Estate Law

Estate planning and tax law are inextricably intertwined, and no one knows this better than Ted Atlass. He has been practicing trust and estate law and tax law since 1975, when he was admitted to the bar in Colorado. Through the years, he has become known as a national expert on the intersection of tax law and estate planning.

Tax law is complicated, and there are many exceptions to general rules. For example, although there are general rules that apply to transactions between unrelated parties, there are several exceptions to these rules for related parties. Related parties can be family members of the whole or half blood, individuals and corporations in which individuals own more than 50 percent of stock, two corporations that are members of the same group, fiduciary and grantor of the same trust, two fiduciaries of trusts established by the same grantor, and more. There is no one better than Ted Atlass to explain some of these complex transactions between such related parties to which exceptions to the IRS’s general rules apply.

Another area where tax law and estate planning intersect is immediate pre-mortem estate planning. Appreciated assets that will receive a stepped up basis may remain in the estate, while passive activity loss assets may be disposed of. Income could be accelerated during the decedent’s lifetime so that the taxes that will be paid will be deductible for estate tax purposes. Business interests could be restructured to benefit the estate.

These and many other topics related to tax law in estate planning will be discussed at a half-day CLE program on October 10, ”Practical Income Tax Issues in Everyday Estate Planning and Administration,” presented by Ted Atlass. Click the links below to register, or call (303) 860-0608.

CLE Program: Ted Atlass on Practical Income Tax Issues in Everyday Estate Planning and Administration

This CLE presentation will take place on October 10, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.

Consumer Financial Protection Bureau Regulations and their Impact on Real Estate Transactions

The Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 created the Consumer Financial Protection Bureau (CFPB), a federal agency charged with regulating consumer protection for United States financial products and services. According to the CFPB website, the group is focused on one goal: “watching out for American consumers in the market for consumer financial products and services.”

In order to achieve its goal of consumer protection, the CFPB has promulgated many rules and regulations since its inception in 2011. Prior to the creation of the CFPB, there were many agencies regulating financial transactions, but some non-bank lending institutions were federally unregulated, such as pay day loan companies, private mortgage lenders, debt collectors, credit reporting agencies, and private student loan companies. These types of lenders are now covered by the new CFPB regulations.

The CFPB regulations have had a significant impact on real estate transactions. The scope of the regulations is surprisingly broad. Attorneys, real estate brokers, and mortgage loan originators especially are affected by the changing regulatory climate propounded by the CFPB.

A half-day CLE program is going be held on September 27 to clarify the CFPB’s new rules and how they will affect residential mortgage lending. Members of the faculty include Debra Still, President and CEO of Pulte Mortgage, Terry Jones of Cherry Creek Mortgage Company, Joey Lubinski of Ballard Spahr, Craig Wildrick of Zions Bancorporation and Tom DeVine of Holland & Hart. If you are involved in any aspect of mortgage lending, or have clients who are, this is an important program to attend.

CLE Program:  The New Consumer Financial Protection Bureau Regulations: What Do They Mean for Your Clients

This CLE presentation will take place on September 27, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.

Annual Rocky Mountain Intellectual Property & Technology Institute Kicks Off Thursday, May 30, 2013

CLE in Colorado’s 11th Annual Rocky Mountain Intellectual Property & Technology Institute begins this Thursday, May 30, at the Westin Westminster hotel. Topics to be discussed include mobile apps, Apple v. Samsung, crowdsourcing, and the America Invents Act.

The America Invents Act changed the landscape of intellectual property law. Inter partes review is becoming a staple of prosecutors’ practices. First-to-file provisions became effective March 16, 2013, which was a big change from America’s previous system. There were many other changes to intellectual property law as a result of the America Invents Act, and Daniel Sherwinter, Esq., of Marsh, Fischmann & Breyfogle, illustrated the changes through a quick summary guide published by CBA-CLE. This summary guide is published here as a courtesy of CBA-CLE.

The America Invents Act – A Quick Guide

If you haven’t already registered for the IP Institute, you can still register at the event at the Westin Westminster, or click here for the online registration page.

Governor Hickenlooper Signs Historic Civil Unions Bill

On Thursday, March 21, 2013, Governor Hickenlooper signed SB 13-011 - Concerning Authorization of Civil Unions and, in  Connection Therewith, Making an Appropriation. The bill was sponsored by Reps. Pat Steadman and Lucia Guzman from the House, and Sens. Mark Ferrandino and Sue Schafer from the Senate.

Governor Hickenlooper issued a statement through One Colorado, remarking, “I had the incredible honor of signing civil unions into law. It was a historic moment for Colorado, which now joins a tide of hope sweeping the nation that affirms all couples should have the protections they need to care for each other and their families.” The bill grants rights to same-sex couples that are similar to those protections married couples enjoy under the law.

The bill takes effect on May 1, 2013, and will impact many areas of the law. The practice areas that will be most directly affected are family law and trust and estate law. On May 1,2013, the effective date of the legislation, CBA-CLE will host two half-day programs discussing the impact of civil unions on family law and trust and estate practice. Topics to be discussed include

  • Predicting the legal consequences of civil unions on  Title 14 and Title 19 actions;
  • A survey of same-sex marriage and civil unions in other jurisdictions and reciprocity issues;
  • Implications of the civil unions law in Colorado and nationwide;
  • Highlights and key provisions of the law that are important to a trust and estate practice; and
  • Civil unions and elder law.

The programs will be presented by Elizabeth Bryant, Erica Johnson, Richard Mishkin, Marie Avery Moses, and Richard Rotole. Click the link below to register or call (303) 850-0608.

CLE Program:  Civil Unions – Legal Consequences for Family and Trust & Estate Practices

This CLE presentation will take place on May 1, 2013, in the CLE Large Classroom. Click here to register for the live program and click here to register for the live webcast.

Can’t make the live program? Click here to order the homestudy.