November 23, 2014

Colorado Court of Appeals Kicks the Can as to Whether HPA Voids Limitations-of-Liability Clauses in Residential A/E Contracts Between Construction Professionals

Tim_GordonBy Timothy Gordon

Colorado’s Homeowner Protection Act (the “HPA”) protects homeowners by voiding any contractual provision that would result in the waiver of a homeowner’s rights under the Construction Defects Action Reform Act. C.R.S. § 13-20-806(7)(a). But some have argued that this same law should also void certain waivers and releases in agreements between construction professionals working on residential projects. Recently, the Colorado Court of Appeals was faced with, but did not decide, this issue.

The HPA provision in question provides as follows:

In order to preserve Colorado residential property owners’ legal rights and remedies, in any civil action or arbitration proceeding described in section 13-20-802.5 (1), any express waiver of, or limitation on, the legal rights, remedies, or damages provided by the “Construction Defect Action Reform Act”, this part 8, or provided by the “Colorado Consumer Protection Act”, article 1 of title 6, C.R.S., as described in this section, or on the ability to enforce such legal rights, remedies, or damages within the time provided by applicable statutes of limitation or repose are void as against public policy.

C.R.S. § 13-20-806(7)(a).

The reference to “section 13-20-802.5(1)” is to the definition of the word “Action”, which is defined as “a civil action or an arbitration proceeding for damages, indemnity, or contribution brought against a construction professional to assert a claim, counterclaim, cross-claim, or third party claim for damages or loss to, or the loss of use of, real or personal property or personal injury caused by a defect in the design or construction of an improvement to real property.” So the basic argument is that construction professionals who bring cross-claims or third party claims for indemnification against other construction professionals should be protected under C.R.S. § 13-20-806(7)(a).

In Taylor Morrison of Colorado, Inc. v. Bemas Construction, Inc., et al., 2014 COA 10, Taylor Morrison hired Terracon to perform certain geotechnical engineering and construction materials testing for a residential subdivision that Taylor Morrison was developing. After many homes were constructed, homeowners began complaining about cracks in the drywall. Taylor Morrison investigated the complaints and ended up spending significant amounts of money to remedy the defective conditions.

Taylor Morrison then sued Terracon to recover the money that it spent remedying the defects. Terracon’s contract with Taylor Morrison limited Terracon’s liability to $550,000, but Taylor Morrison was seeking more. So Taylor Morrison filed a motion with the trial court, asking the trial court to determine whether the HPA invalidated the limitation of liability in its contract with Terracon. The trial court ruled in favor of Terracon, holding that the HPA did not apply to invalidate a limitation of liability clause in a contract between it and Taylor Morrison because the HPA was meant to protect homeowners, not commercial entities. The Court of Appeals affirmed, but on different grounds. Specifically, the Court of Appeals held that the HPA could not apply retroactively to the contract between Terracon and Taylor Morrison. So the issue of whether the HPA would void a limitation of liability in an engineer’s agreement with a developer remains unresolved at the appellate level.

Consider the outstanding issue in light of the Court of Appeals’ decision in Mid Valley Real Estate Solutions V, LLC v. Hepworth-Pawlak Geotechnical, Inc., et al., 2013 COA 119. There, the Court of Appeals held that a bank holding title to residential property qualifies as a “homeowner” for purposes of the economic loss rule, and therefore may bring tort claims against construction professionals for construction defects. The Court’s reasoning in Mid Valley Real Estate Solutions is broad enough to include just about any person or entity holding title to residential property. So query the following:

  • Can developers who still hold title to homes that they have developed sue their own subcontractors and consultants in tort for alleged construction defects under Mid Valley Real Estate Solutions?
  • If so, are the developers bound by limitations of liability in their contracts with their subcontractors and consultants, or does the HPA void such limitations?
  • Finally, does it make sense to make a distinction between developers who still hold title to homes and developers who no longer hold title to homes when deciding whether or not the HPA applies?

Timothy Gordon represents construction and commercial real estate clients in complex disputes, and understands the interrelationship between the long-term real estate development, project construction, and property management. A thought leader in construction law, he currently authors Construction Law in Colorado, a blog that provides insight on key cases and developments relevant to construction law in Colorado, where this post originally appeared on February 21, 2014. He is the Co-Managing Editor of The Practitioner’s Guide to Colorado Construction Law, a three-volume treatise on construction law in Colorado.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

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.

Surveying Intellectual Property: Predictions for the Supreme Court’s Rulings in 10 IP Cases

HarrisDoughertyBy Ray K. Harris and Thomas Dougherty

There are now ten IP cases under review in the Supreme Court. Why so many? And what will the Court do?

Why So Many IP Cases?

The Supreme Court docket demonstrates the accelerating importance of intellectual property. In the decade of the 1990s the Supreme Court wrote seven patent opinions.[1] The prior two decades saw a similar volume of patent cases. In the same decade, copyright cases decided in the Supreme Court (six)[2] and trademark cases decided in the Supreme Court (three, including two trade dress cases)[3] were about equally rare.

In the decade from 2000 to 2009, the Supreme Court increased the volume to 10 patent related opinions.[4] Total copyright cases (three)[5] and trademark cases (five, including two trade dress cases)[6] decided in the Supreme Court remained about the same.

In 2010 to 2012 the Supreme Court increased the pace to issue four patent opinions in three years.[7] The pace of Supreme Court copyright decisions (two)[8] remained about the same as over the last 20 years. The increase in patent litigation appears not to be aberrational.

Last year the Supreme Court again more than doubled the volume of patent cases handled and issued four patent-related opinions in one year.[9] The Supreme Court also decided one copyright case[10] and one trademark case.[11]

This year the Supreme Court has again increased the volume of patent cases and already has accepted for review six patent cases – more than half the volume it handled in the entire first decade of the 21st Century. The Court has also accepted for review two copyright and two trademark cases.

Why has the Supreme Court accepted review in so many IP cases? Because IP rights have grown in economic importance and clarity is required to maintain that economic value. The Federal Circuit was given exclusive jurisdiction over patent cases to avoid conflicts in treatment among the different Circuit Courts, but clarity (for example, on treatment of software-related inventions) has not uniformly emerged. Also, abusive assertion of IP rights imposes a substantial cost on the economy. Guidance for the Federal Circuit requires either Supreme Court review or Congressional action.

What Will The Court Do?

Here summaries of the issues raised and our humble PREDICTIONS of how these 10 current IP cases may be decided.

Patent. Two patent cases focus on the scope of what a patent may claim.

Alice Corp. Pty Ltd. v. CLS Bank Int’l, 717 F.3d 1269 (Fed. Cir. 2013), cert. granted, 134 S. Ct. 734 (2013) (the test for patentable subject-matter for software inventions). An equally divided court affirmed the District Court holding that the claims were not patent eligible. The Federal Circuit generated seven opinions and could not agree on the appropriate test. NEITHER CAN WE, BUT THE COURT CONTINUES TO DECIDE CASES DEFINING THE LINE BETWEEN INVENTION AND ABSTRACT IDEAS. The court will limit the scope of software patentability, but not eliminate it. SOFTWARE CAN BE PATENTED BUT NOT THESE CLAIMS. AFFIRMED. Watch for oral argument March 31.

Nautilus Inc. v. Biosig Instruments, Inc., 715 F.3d 891 (Fed. Cir. 2013), cert. granted, 134 S. Ct. 896 (2014) (determining when a claim term is indefinite — therefore invalidating the claim) There were multiple reasonable interpretations of the claim language “spaced relationship.” The Federal Circuit concluded the term was not insolubly ambiguous because “inherent parameters” would allow a person of ordinary skill to understand the term. Particular and distinct patent claiming is required by statute. 35 U.S.C. 112. REVERSED. THE COURT WILL REQUIRE TIGHTER CLAIM DRAFTING SO WHAT IS CLAIMED IS DISTINCT FROM WHAT IS NOT CLAIMED AND INFRINGEMENT LIABILITY IS MORE PREDICTABLE. Watch for oral argument April 28.

The remaining 4 patent cases focus on enforcement issues:

Medtronic Inc. v. Boston Scientific Corp., 571 U.S. ___ (Jan. 22, 2014). In a declaratory relief suit by a patent licensee the licensor/patentee always has the burden to prove infringement. REVERSED. WE ARE CERTAIN WE GOT THIS “PREDICTION” CORRECT.

Highmark Inc. v. Allcare Management Systems, Inc., 687 F.3d 1300 (Fed. Cir. 2012), cert. granted, 134 S. Ct. 48 (2013), and Octane Fitness, LLC v. ICON Health & Fitness, Inc., 496 Fed Appx. 57 (Fed. Cir. 2012), cert. granted, 134 S. Ct. 49 (2013) (the standard for awarding attorneys’ fees to the prevailing party). The infringement defendant prevailed in both cases. The Federal Circuit found no deference is owed to a district court’s finding regarding whether allegations of infringement were objectively unreasonable and neither case was “exceptional” under 35 U.S.C. § 285. The prevailing defendants assert (1) the District Court is entitled to deference, and (2) a showing that the litigation is objectively baseless and brought in subjective bad faith sets too high a standard for prevailing defendants (accused infringers) and conflicts with the lower bar set for prevailing plaintiffs (patent owners) — a showing “that the infringer acted despite an objectively high likelihood that its actions constituted infringement of a valid patent.”). THE COURT WILL ELIMINATE THE SUBJECTIVE ELEMENT OF THE REASONABLENESS TEST AND OTHERWISE AFFIRM THE APPELLATE DECISIONS ON THE OBJECTIVE ELEMENT WITHOUT DEFERENCE TO THE TRIAL COURT. This case was argued Feb. 26.

Limelight Networks, Inc. v. Akamai Technologies, Inc., 692 F.3d 1301 (Fed. Cir. 2012), cert. granted, 134 S. Ct. 895 (2014) (inducing infringement where separate elements of the method claim were carried out by different persons, hence there is no one person who directly infringed). The Federal Circuit held there can be inducement liability with no single direct infringer or agency relationship. AFFIRMED. INDUCING MULTIPLE ACTORS TO INFRINGE COLLECTIVELY IS WRONG (ONCE THE ADVERSE PRECEDENT IS NOT CONTROLLING). Watch for oral argument April 30.

Copyright. Both cases deal with defenses to enforcement of copyright protection.

Petrella v. Metro-Goldwyn-Mayer, Inc., 695 F.3d 946 (9th Cir. 2012), cert. granted, 134 S. Ct 50 (2013) (laches as a defense to damages incurred for the three-year period before suit is filed). The Copyright Act has a three-year statute of limitations, 17 U.S.C. 507(b). The Ninth Circuit found claims based on the 1980 film “Raging Bull” barred by laches. The other circuits are less receptive to this defense. AFFIRMED. DAMAGES AND INJUNCTIVE RELIEF ARE BOTH UNAVAILABLE FOR THE CONTINUING TORT ON THE FACTS PRESENTED. This case was argued Jan. 21.

American Broadcasting Companies, Inc. v. Aereo, Inc., 712 F.3d 676 (2nd Cir. 2013), cert. granted, 134 S. Ct. 896 (2014) (streaming a broadcasted video over the Internet so paid subscribers each subscriber receive transmission of a separate copy). The Second Circuit found no infringement of the public performance right. Both parties asked for review. Even the winner below wants to avoid the possibility of inconsistent decisions in other circuits. REVERSED. THE COURT WILL CONCLUDE CONGRESS DID NOT INTEND TO PERMIT THE “RUBE GOLDBERG” DESIGN ADOPTED TO AVOID INFRINGEMENT. STREAMING AND RECORDING ON DEMAND IS A PUBLIC PERFORMANCE. CONGRESS COULD AMEND THE STATUTE IF IT DISAGREES WITH THE COURT (WE ARE NOT ARROGANT ENOUGH TO TRY TO PREDICT CONGRESS — BE SERIOUS). Watch for oral argument April 22.

Trademark. Both cases involve false advertising under the Lanham Act.

POM Wonderful LLC v. Coca-Cola Co., 679 F.3d 1170 (9th Cir. 2012), cert. granted, 134 S. Ct. 895 (2014) (false advertising claims involving the labeling requirements of the Food Drug and Cosmetics Act). The Ninth Circuit found preemption. AFFIRMED. Watch for oral argument April 21.

Lexmark Int’l Inc. v. Static Control Components, Inc., 697 F.3d 387 (6th Cir. 2012), cert. granted, 133 S. Ct. 2766 (2013) (the test for standing to maintain a false advertising claim). The Ninth Circuit requires the plaintiff to be an actual competitor. Other circuits require antitrust standing. The Sixth Circuit and Second Circuit allow the plaintiff to sue if it has a “reasonable interest” in the case. AFFIRMED. THE COURT WILL ADOPT THE REASONABLE INTEREST STANDARD. This case was argued Dec. 3.

Only two of the nine remaining cases reversed. Not a smart bet? “Never tell me the odds.”[12]

Ray K. Harris practices in the area of commercial litigation, including trade secret, trademark, trade dress, computer software copyright, and other intellectual property protection matters. His representation of aerospace clients has included enforcement of patent and trade secret rights and licensing provisions related to IP. Reach Mr. Harris at rharris@fclaw.com.

Thomas A. Dougherty is a registered patent attorney who practices in all areas of intellectual property, and federal appeals. His practice includes international and domestic patent and trademark prosecution; inter partes reexaminations; portfolio management; freedom to operate, medical devices, general counsel services, M&A, and counseling for various clients and technologies. Reach Mr. Dougherty at tdougherty@fclaw.com

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

 


[1] Eli Lilly & Co. v. Medtronic Inc., 496 U.S. 661 (1990); Cardinal Chemical Co. v. Morton, 508 U.S. 150 (1993); Asgrow Seed Co. v. Winterboer, 513 U.S. 179 (1995); Markman v. Westview Instruments, Inc., 517 U.S. 370 (1996); Warner-Jenkinson Co, Inc. v. Hilton Davis Chemical Co., 520 U.S. 17 (1997); Pfaff v. Wells Electronics Inc., 525 U.S. 55 (1998); and Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank, 527 U.S. 627 (1999). See also Dickinson v. Zurko, 527 U.S. 150 (1999) (administrative burden of proof).

[2] Stewart v. Abend, 495 U.S. 207 (1990), Feist Publications, Inc. v. Rural Telephone Service Co., 499 U.S. 340 (1991); Fogerty v. Fantasy, Inc., 510 U.S. 517 (1994); Campbell v. Acuff-Rose Music Inc., 510 U.S. 569 (1994); Feltner v. Columbia Pictures, 523 U.S. 340 (1998); and Quality King Distributors Inc. v. L’anza Research Int’l Inc., 532 U.S. 135 (1998). See also Lotus Dev. Corp. v. Borland Int’l Inc., 116 S. Ct 804 (1996) (aff’d by an equally divided court); Professional Real Estate Investors, Inc. v. Columbia Pictures Industries, Inc., 508 U.S. 49 (1993) (copyright claim was immune from antitrust liability).

[3] Two Pesos v. Taco Cabana, Inc., 505 U.S. 763 (1992); Qualitex v. Jacobson Products Co., Inc., 514 U.S. 159 (1995) and College Savings Bank v. Florida Prepaid Postsecondary Education Expense Board, 527 U.S. 666 (1999).

[4] JEM Ag. Supply Inc. v. Pioneer Hi-Bred Int’l, Inc., 534 U.S. 124 (2001) (patent alternative to plant variety protection act); Festo Corp. v. Shoketsu Kinzoku Kogyo Kubushiki Co., Ltd., 535 U.S. 722 (2002); Holmes Group, Inc. v. Vornado Air Circulation Systems, Inc., 535 U.S. 826 (2002); Merck KGaA v. Integra Lifesciences I, Ltd., 545 U.S. 193 (2005); Illinois Tool Works Inc. v. Independent Ink, Inc., 547 U.S. 28 (2006) (rule of reason antitrust analysis); eBay Inc. v. Merc-Exchange, LLC, 547 U.S. 388 (2006); MedImmune, Inc. v. Genentech, Inc., 549 U.S. 118 (2007); KSR v. Teleflex, Inc., 550 U.S. 398 (2007); Microsoft Corp. v. AT&T Corp, Int’l Co., 550 U.S. 437 (2007); and Quanta Computer Inc. v. LG Electronics, Inc., 553 U.S. 617 (2008).

[5] New York Times Co, Inc. v. Tasini, 533 U.S.483 (2001); Eldred v. Ashcroft, 537 U.S. 186 (2003); and Metro-Goldwyn-Mayer Studios Inc. v. Grokster, Ltd., 545 U.S. 913 (2005).

[6] Wal-Mart Stores, Inc. v. Samara Bros., Inc. Co., 529 U.S. 205 (2000); TrafFix Devices, Inc. v. Marketing Displays, Inc., 532 U.S. 23 (2001); Moseley v. V Secret Catalogue, Inc., 537 U.S. 418 (2003); Dastar Corp. v. 20th Century Fox Film Corp., 539 U.S. 23 (2003); and KP Permanent Make-Up Inc. v. Lasting Impression I, Inc., 543 U.S. 111 (2004).

[7] Bilski v. Kappos, 130 S. Ct. 3218 (2010); Global-Tech Appliances, Inc. v. SEB S.A., 131 S. Ct. 2060 (2011); Bd of Trustees of Leland Stanford Jr. Univ. v. Roche Molecular Systems, Inc., 131 S. Ct. 2186 (2011); Microsoft Corp. v. i4i Ltd. Partnership., 131 S. Ct. 2238 (2011); and Mayo Collaborative Services v. Prometheus Laboratories, Inc., 132 S. Ct. 1289 (2012). See also Kappos v. Hyatt, 132 U.S. 1690 (2012) (admissible evidence in administrative proceedings).

[8] Reed Elsevier, Inc. v. Muchnick, 559 U.S. 154 (2010), and Golan v. Holder, 132 S. Ct. 873 (2012). See also Costco Wholesale Corp. v. Omega S.A., 131 S. Ct. 565 (2010) (aff’d by an equally divided court).

[9] Bowman v. Monsanto Co., 133 S. Ct. 1761 (2013); Gunn v. Minton, 133 S. Ct. 1059 (2013) (patent-related jurisdiction); Association for Molecular Pathology v. Myriad Genetics, 133 S. Ct. 2107 (2013); and FTC v. Actavis, Inc., 133 S. Ct. 2223 (2013) (reverse payment patent license antitrust analysis).

[10] Kirtsaeng v. John Wiley & Sons, 133 S. Ct. 1351 (2013).

[11] Already LLC v. Nike Inc., 133 S. Ct. 721 (2013).

[12] Han Solo to C-3PO, Star Wars: The Empire Strikes Back (1980).

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

IAALS: Integrating More Professionalism and Ethics into Law School Curriculum

This post originally appeared on IAALS Onlinethe blog for IAALS, the Institute for the Advancement of the American Legal System at the University of Denver, on February 10, 2014.

Alli_Gerkman_bw_2014By Alli Gerkman

In his Voices from the Field interview, Bill Walters, Partner at Heizer Paul and former president of the Colorado Bar Association, suggests that law schools need to expose students to the various career options they have following law school, which extend far beyond the traditional big firm practice of law. For example, dual degree programs, like dual J.D./M.B.A. programs, allow law students to use the skills they’ve learned in combination with business skills to potentially and more successfully run a business after graduating.

As to better preparing law students for practice, Walters suggests that the first year curriculum should remain largely traditional through use of the Socratic method and fundamental courses. However, in the second and third year of law school, professors should use different pedagogical methods to teach students, like experiential course offerings. Walters also underscores the importance of having practicing attorneys teach students.

Finally, Walters advocates for integrating more professionalism and ethics into law school curriculum to help produce law school graduates that are better prepared for the practice of law and serving clients. He suggests that schools need exposure to these issues beyond the Rules of Professional Conduct. By “infusing” the curriculum with ethical issues, students can better understand the issues in the context of practice. Walters suggests that a student who attends a law school that emphasizes professionalism by modeling ethical behaviors will have an advantage interviewing with law firms and will increase the potential for the student to get hired.

Hear more of Bill Walters’ suggestions for reforming legal education in his Voices from the Field interview below.

William E. (“Bill”) Walters, III, has practiced law for more than 36 years in Denver, Colorado. His practice focuses on advising nonprofit organizations, trade and professional associations, and for-profit business entities. Bill also has expertise in antitrust and trade regulation law. 

From 1978 to 1981, Bill was an Assistant Attorney General for the State of Colorado. He was President of the Denver Bar Association from 2001 to 2002 and is a former Chair of the Colorado Lawyers Committee. He was President of the Colorado Bar Association from 2008 to 2009 and served on its Executive Council and Board of Governors for many years. 

Alli Gerkman became the first full-time Director of Educating Tomorrow’s Lawyers, a national initiative to align legal education with the needs of an evolving profession, in May 2013. She joined IAALS in June 2011 as Online Content Manager, developing and managing all IAALS web properties, including Educating Tomorrow’s Lawyers, and became IAALS’ Director of Communications in August 2012. She brings significant professional development experience to the initiative, having spent five years in continuing legal education, first as a program attorney organizing multi-day conferences for a national provider and then as program attorney and manager of online content for Colorado Bar Association CLE. While at CBA-CLE, she developed an online legal resource that was the recipient of the Association of Continuing Legal Education’s 2011 Award of Professional Excellence for use of technology in education. She has written and presented nationally to continuing legal education providers, bar executives, and lawyers. Prior to her work in continuing legal education, she was in private practice.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Marijuana Matters: Has your association taken a shot at regulating pot?

By Suzanne M. Leff

As you’re probably aware, effective January 1, 2014, recreational pot became legal in Colorado. This new law is already affecting homeowners associations. While some associations started planning for pot smoking residents last year when the law was passed, not every community association moved quickly to adopt rules and regulations or amend restrictive covenants to address anticipated issues related to recreational pot smoking. If your association has not yet considered whether the new marijuana laws will affect your community, or if you’re thinking about how to tackle problems before they occur, here are some things to consider:

Shared spaces. Most associations have the authority to create rules and regulations that control activities in outdoor and indoor common area spaces. If your association already regulates tobacco smoking in these areas, the association, through board of director action, may consider extending those smoking policies to marijuana use. Associations should also evaluate the extent to which local laws interact with association rules and regulations and seek to fill any regulatory gaps that warrant attention in specific communities. Boards will want to pay particular attention to areas of their communities where use of marijuana will impact other residents. For example, with tobacco smoke, smoking near doorways and windows of other units are areas that typically result in complaints from residents.

Limited common area patios and balconies. Association boards can often regulate activities within limited common areas, but you will need to look to your documents to determine the extent to which your association can adopt rules affecting these areas. Patios and balconies in close proximity to other units are certain to give rise to complaints from residents affected by smoking neighbors. Associations should carefully consider how enforcement will take place if marijuana use is regulated in these areas.

Private residences. In contrast to associations’ ability to regulate activities in shared common areas, associations are not typically empowered to impose rules and regulations on how owners and residents behave inside their homes—at least not where private activities do not impact neighbors’ use and enjoyment of their homes. If your association’s recorded covenants do not prohibit smoking and a resident chooses to smoke in his or her home, the association board of directors most likely cannot simply adopt a rule that prevents that resident from lighting up. In most cases, the owners will need to approve an amendment to the declaration to restrict smoking within the units. It remains to be seen whether Colorado courts will allow associations to rely solely on nuisance provisions in their covenants as a way of prohibiting marijuana smoking within private residences. However, based on other related nuisance court cases, a Colorado court would probably only allow an association to rely on a nuisance provision under extenuating circumstances. If your covenants prohibit residents from doing anything that violates federal law, your association may determine that regulation of marijuana activities within the units is permissible without first amending the covenants.

Other considerations for resident rules. The new marijuana laws do not address use alone. Cultivation of marijuana is another factor for boards to consider. In addition, state and local fair housing laws come into play in the context of medicinal marijuana cultivation and use.

Employees. Associations with employees should implement policies concerning marijuana use on the job and showing up to work under the influence of marijuana. Court cases concerning employment practices suggest that employers are permitted to prohibit marijuana use by their employees.

Enforcement. As your association considers how to regulate marijuana activities in your community, give careful thought to how the association will enforce any new restrictive covenants or rules and regulations. Now that pot is legal in Colorado, local law enforcement may not be there to help. Associations will best position themselves for effective enforcement by creating rules with clear violations and not violations based on one person’s opinion. To the extent your association can document violations, you will have a better chance of holding the violator accountable. That accountability can come in several forms, including fines, suspension of privileges, and, in the more extreme cases, court-ordered injunctions.

Consult with legal counsel. The number of issues for boards to consider is too numerous to address completely here, and your community and its unique needs should inform how marijuana activities are regulated. Associations should always consult with legal counsel before adopting rules or imposing restrictions related to marijuana.

Suzanne M. Leff is a partner at Winzenburg, Leff, Purvis & Payne, LLP. She provides general counsel to community associations, and focuses on general business representation, document drafting and interpretation, contract review, covenant enforcement, and governance practices. She presents educational seminars to property managers, board members, and other attorneys who work with community associations. Suzanne writes articles for the firm’s blog on topics such as changes to legislation affecting community associations, fiduciary duties of board members, the practical application of laws affecting associations, and alternative dispute resolution. This article originally appeared on her firm’s blog on January 21, 2014.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Point/Counterpoint: YouTube Law—When Depositions Go Viral: (Counterpoint) Nyet to the Net

This article originally appeared in the February 2014 issue of The Colorado Lawyer. It is part of a two-part “Point/Counterpoint” series. Click here for the “Point” article.

Burtzos_FredCThree-and-a-half months before Disneyland and I appeared on the planet, the Dumont Television Network cancelled “Captain Video and his Video Rangers.” Captain Video, with the help of his Video Rangers, fought against the conspiracies and criminal elements of the late 1940s and early 1950s. Fifty-nine years later, I must respectfully disagree with my colleague John Pineau, who, in my opinion, is Colorado’s 21st-century incarnation of Captain Video. In particular, I disagree with John’s goal of creating a new generation of Video Rangers. Instead of appearing on live television, John and his apprentice rangers plan to use YouTube and other social media to post video depositions from civil cases on the Internet. This practice, which John claims is needed to bring “sunshine” about the legal world to the public, should be laid to rest alongside the likes of Al Hodge, who played Captain Video from 1950 to 1955 and who passed away in 1979.

I acknowledge the fact that technology—especially inexpensive cameras (I sometimes video record depositions with a camera I purchased on eBay for less than $50) and the ability to upload videos with a few key strokes and mouse clicks—physically allows anyone to post whatever he or she chooses on the Internet. I also am aware that the Internet is filled with videos of numerous legal proceedings, including those of Herman Goering, O. J. Simpson, Enron, and British Petroleum (BP). Still, I cannot believe that Judge Ito really thought it was a good idea to turn the O. J. Simpson case into a cable television reality show, nor can I comprehend anyone wanting to spend a great deal of time watching long dead Nazis pontificating about concentration camps. The only good thing I can say about the deposition of Tony Hayward is that it lead to my high school classmate replacing him as head of BP. The past is the past, and what some judge or tribunal allowed to be filmed and posted online cannot be removed from the archives of the Internet. I am concerned about the future as John says it should be.

I also acknowledge the very real possibility that, in the not too distant future, all court proceedings in Colorado, including every moment of every trial, will be digitally recorded, and anyone willing to pay the fee for a copy of the video record might then be able to post it online. I do not know whether this will pose copyright problems, but at present, anyone can buy a transcript of court proceedings, and I am not aware of any prohibition against posting public records, such as a trial transcript, on the Internet. There are no secret trials in America, and there should not be. The posting of pre-trial depositions, however, is another matter.

Not Lawyer’s Job to Retaliate

In a Denver Post article about you, John, and your Captain Video proclivities,[1] there is a discussion about how you were so outraged by the way some defendants tried to use the power of a government connection to intimidate your client, that after you won a judgment for your client against these defendants, you posted on YouTube the deposition video of a witness saying it was okay to lie to the government. As a result of this posting, the witness and his company apparently got into a quagmire of potential legal trouble, and even endured student protests.

In my opinion, John, once you won the case and collected the judgment, your part in the matter should have been over. It is acceptable for us attorneys to feel outrage when arguing a cause to the trier of fact, but personal outrage, no matter how justified, should not allow attorneys to try to “stick it” to someone after a case, even if he, she, or it richly deserves it. The case is about the client, not us. We took an oath not to act out of malice or outrage.[2] Going out of the way to try to embarrass a party or a witness, or to get him or her in trouble after a trial, is not okay. It is no problem for me if a client is irked and chooses to act on their outrage, as long as the client stays within the bounds of the law, but an attorney should refrain from pushing the matter once the cause is over.

Why Depositions Are Different

Even if there is no intent to try to expose a wrong or a perceived wrong, posting deposition videos online raises a host of thorny issues and problems. In depositions, the evidentiary rules are relaxed.[3] Deponents often are asked questions that could be objected to at trial but, because the answer to the deposition question might lead to the discovery of admissible evidence, it is allowed during the deposition.

Defendants in motor vehicle accident cases, for example, routinely are asked about their driving histories, the discussions they might have had with their liability insurance carriers about the accident, any traffic citations they received as a result of the accident in question in the case, and possibly their criminal history. The fact that a defendant (1) had his driving privileges suspended for six months a decade before the accident; (2) was convicted of misdemeanor theft; and (3) spoke about the careless driving citation he received following the accident with his liability insurance carrier likely would not be discussed at trial due to a variety of evidentiary rules.[4] In your universe, John, if your client did not get a good result in this case—or even if he did—it would be okay for you or the other Video Rangers to expose these non-admissible matters to the world, possibly causing grief to the 32-year-old defendant because his family, friends, and employer did not know he was convicted of petty thievery at the age of 20, or that he had his driver’s license suspended for drag racing when he was 22 years old.

Plaintiffs in injury cases routinely discuss their medical histories and, if a loss of consortium claim is involved, their sex lives. John, if you and your wife were rear-ended by a motorist on your way to the soon-to-be-opened Trader Joe’s in Boulder, and you filed a bodily injury suit as a result, would you and your wife want to see yourselves online testifying about (by way of a very fictional example): the sexually transmitted disease you contracted in law school, the three times during college you injured your back trying to ski moguls while intoxicated, and the thirty-seven sessions of marriage counseling the two of you had undergone before the motor vehicle accident? This is the universe you would be living in if depositions could be posted online.

An Ethical Slippery Slope

Still another issue in this developing quagmire of a debate is selective editing, which would be a major problem if deposition videos were posted online. In most depositions, I wager the attorney taking the deposition will find a few “golden nuggets” taken completely out of context to use at trial when questioning the deponent. If only those nuggets are posted online, doesn’t that paint a distorted picture of what the deponent actually had to say? Of course, if the goal is to make the deponent look bad anyway, then of course the new Video Rangers’ response is: “What’s the harm?” Well, the harm is very real. “Justice TV” could be an oxymoron in many cases.

John, I know you are not advocating taking the image of a deponent and, for example, putting it into an advertisement for bourbon, but if you post a video on your website of you making a deponent look foolish, aren’t you just appropriating the image of that person to further your law practice? By that reasoning, should the person be entitled to royalties for appearing in one of your home movies?

It seems that most of the courtroom clips we see on television involve high-profile criminal cases. It intuitively makes sense to anticipate that the parties to a criminal case might expect heightened public scrutiny of their situation as opposed to the parties in a routine civil case. After all, in a criminal case, the claim is that an individual violated the public law and order. In a civil case, the claim is often that one citizen tortuously or contractually caused damages to another citizen. I will guess that the average resident of Colorado Springs has no interest in a promissory note dispute between me and my neighbor, but that same person could very well be interested in a case where my child’s daycare provider has been charged with molesting my child and five other children.

I am not in favor of attorneys being a party to the posting of videos such as those that you mention, John—bank fraud, pollution, insurance bad faith, and so on. Attorneys have a different role in the legal system, and that role is not to be Alfred Hitchcock.

Trying to expand litigated cases into a worldwide arena beyond the courtroom makes no sense. It takes a private dispute that exists in a system in which those ultimately deciding the dispute are not allowed to use the Internet to decide the dispute,[5] and it turns it into a public alley fight that could remain online in perpetuity. Please note, John, that not everybody has the ability or resources to skip the court system to arbitrate a dispute.

The posting of deposition videos online could well encourage attorneys to modify their behavior at a deposition. Hardball tactics, either to look tough or to try to prevent embarrassing information from being disclosed, might become the new norm. This is not at all in keeping with CRCP 30, which tries to limit attorneys to objecting only to questions calling for the disclosure of privileged information, and it certainly is not in keeping with many routine trial court orders that specifically tell attorneys not to engage in obstructionist tactics or boorish behavior during discovery.

Conclusion

I know, John, that you have been quoted as saying that social media is the way to “take the truth and make it a little more public,”[6] but your idea about what “truth” should be posted online and why it should be posted online is not the same as mine. When a case is over, it should be put into storage and then forgotten. It ought not stay alive on YouTube, Facebook, your website, or anywhere else in cyberspace. Even if some horses have left the barn, a number of them can stay put. Unless you are ready to tell the world all of your darkest secrets, please take the idea of posting deposition videos online and lay it respectfully next to Al Hodge.

Rest in Peace.

Fred Burtzos is a Senior Claim Litigation Counsel at Paul S. Edwards & Associates in Colorado Springs—(719) 228-3835, fred.burtzos.gdz0@statefarm.com.

This article originally appeared in the February 2014 issue of The Colorado Lawyer. Articles are available online to CBA members.

 


[1] Lofholm, “Colorado Attorney Brings down the Hammer of Social Media Justice Via YouTube,” The Denver Post (May 22, 2013), www.denverpost.com/news/ci_23295396.

[2] The following is the Colorado Attorney Oath of Admission:

I do solemnly swear by the ever living God (or affirm) that: I will support the Constitution of the United States and the Constitution of the State of Colorado; I will maintain the respect due to Courts and Judicial Officers; I will employ only such means as are consistent with truth and honor; I will treat all persons whom I encounter through my practice of law with fairness, courtesy, respect and honesty; I will use my knowledge of the law for the betterment of society and the improvement of the legal system; I will never reject, from any consideration personal to myself, the cause of the defenseless or oppressed; I will at all times faithfully and diligently adhere to the Colorado Rule of Professional Conduct.

[3] CRCP 30 and 26(b).

[4] See, e.g., CRE 411; CRS § 42-4-1713.

[5] CJI 1:10.

[6] Lofholm, supra note 1.

Reasonably Ascertainable Value of Accrued Vacation and Accrued Sick Leave May Be Divided in Dissolution of Marriage

PFM Individual Photos LWMBy Lesleigh W. Monahan

On January 13, 2014, the Colorado Supreme Court issued its opinion in In re Marriage of Cardona and Castro. The supreme court granted certiorari review in this case to consider whether accrued vacation and sick leave may be considered marital property subject to division under C.R.S. § 14-10-113 of the Uniform Dissolution of Marriage Act (UDMA). The court considered this issue a matter of first impression in Colorado, noting, as did the court of appeals, that courts in other jurisdictions are split on this issue.

In Marriage of Cardona and Castro, wife raised the issue of husband’s accrued leave. The husband’s accrued leave had been reflected in his most recent pay stub, which indicated the total number of hours of vacation time and sick time that had accrued up until the date of dissolution. The pay stub did not indicate the cash value of the accrued leave or whether husband was entitled to cash payment for any portion of the leave. At the permanent orders hearing, the wife did not establish, nor did the husband render an opinion as to, whether husband was entitled to cash payment for any portion of the leave. In fact, the husband’s statements at the permanent orders hearing were somewhat vague and ambiguous as to his expectations—other than that he would be entitled to some form of pay for his accrued leave at the time of his termination.

The wife thereafter took the position that the husband’s accrued leave should be valued at $23,230.00. The trial court chose to divide the value of husband’s accrued vacation and sick leave as part of its division of the marital estate and required husband to pay wife $11,616.00 for “her interest in this pay.”

On appeal (which included additional issues other than those raised in the most recent supreme court opinion), the husband argued that accrued leave is not marital property. The divided panel of the court of appeals agreed and reversed. The majority reasoned that husband’s accrued leave was analogous to unvested stock options or an interest in a discretionary trust and “is thus not property subject to distribution on dissolution.” The case was remanded with direction to the trial court to reconsider the property division without considering husband’s accrued vacation and sick time. A petition for writ of certiorari, filed by wife, was granted on the following issue: “Whether the Court of Appeals erred in finding that accrued vacation and sick leave time is not marital property subject to division pursuant to section 14-10-113, C.R.S. (2010).”

The supreme court, in considering case law from other jurisdictions and relevant Colorado precedent, concluded that where a spouse has an enforceable right to be paid for accrued vacation or sick leave, as established by an employment agreement or policy, such accrued leave earned during the marriage is marital property for purposes of the UDMA. The court clarified that the value of such accrued leave at the time of dissolution must be equitably divided as part of the marital estate as long as such value can be reasonably ascertained at the time of dissolution. Alternatively, when a court cannot reasonably ascertain the value of such leave at the time of dissolution, the court should consider a spouse’s right to such leave as an economic circumstance of the parties when equitably dividing the marital estate. The supreme court found that there was not any competent evidence presented in the Cardona and Castro matter to establish that husband had an enforceable right to payment for his accrued leave and, accordingly, determined the trial court erred in considering the purported cash value of such leave as part of the marital estate. The court of appeals judgment was affirmed on narrower grounds.

The importance of this case to practitioners is clear in terms of trial preparation. As with other marital assets such as real estate, businesses, and retirement plans, it is essential for the practitioner to obtain accurate documentation and/or testimony from reliable sources such as the employer (as witness) and employer policies and procedures (as exhibits) relative to valuation of accrued sick time and leave. Based upon the detailed analysis in the supreme court decision, it will be critical for the trial court to assess whether the “value” of accrued vacation or sick leave, at the time of dissolution, may be so difficult to ascertain as to be speculative. Under many employment policies, different types of leave may be combined in one comprehensive paid time off plan, whereas other policies split vacation leave, sick leave, and personal leave into separate plans. Some employers allow leave to accrue and “roll over” from year to year, while others adopt a “use it or lose it” approach, under which accrued leave is forfeited if the employee does not take time off. Therefore, under this ruling, it is clear that accurate, demonstrative, and probative evidence must be presented to the trial court as to whether the value of accrued leave can be determined through a reasonable dollar estimate. If such an estimate cannot be demonstrated, it is clear that the accrued leave has speculative value that could lead a trial court to treat such leave as an “economic circumstance” under C.R.S. § 14-10-113(1)(c).

Justice Boatright concurred in the opinion but wrote separately to express two perceived errors in the reasoning of the majority opinion. The first relates to the inequity of “double counting” of accrued leave as both income and property. The second concern articulated by Justice Boatwright is that the ruling presents a contradiction in that “unlike calculating the present value of a pension, it will be nearly impossible to determine the present value of accrued leave.” Analysis would require consideration of a “bevy of speculative and indeterminate factors such as future illness, vacations, company policy, lifestyle changes, job changes, family needs and retirement.” In summary, the difficulties of valuing accrued leave led Justice Boatwright to the conclusion that it should be treated as income if the court orders child support and maintenance. Alternatively, if the court does not order child support or maintenance, it should only consider accrued leave as an “economic circumstance.”

Lesleigh W. Monahan, Esq. is a partner in the Lakewood firm of Polidori, Franklin & Monahan, LLC. Ms. Monahan has been practicing law exclusively in domestic relations since 1988. She received her Juris Doctor degree from the University of Colorado School of Law in 1987. Ms. Monahan has repeatedly been recognized for her accomplishments, and is a frequent speaker at continuing legal education programs. She was admitted as a Fellow in the American Academy of Matrimonial Lawyers in 2004 and was president of the Colorado chapter in 2011/2012. Ms. Monahan is also a member of the CBA Family Law Section, and was chair of that section’s executive council in 2002-2003.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Point/Counterpoint: YouTube Law—When Depositions Go Viral: (Point) An Open Democracy is a Healthy Democracy

This article originally appeared in the February 2014 issue of The Colorado Lawyer. It is part of a two-part “Point/Counterpoint” series. Click here for the “Counterpoint” article.
Pineau_JohnCNazi Hermann Goering is on YouTube at his 1946 trial in Nuremburg testifying about the necessity of concentration camps.[1] Charles Manson is on the Internet discussing his 1970 murder trial.[2] F. Lee Bailey’s powerful 1995 cross-examination in the O. J. Simpson trial is on the Web.[3]The thoughtful testimony of Bill Gates is posted from a 1998 video deposition.[4] Bill Clinton’s 1998 attempts to weave through a deposition are uploaded.[5] Andrew Fastow’s admission to Enron fraud in 2006 is posted throughout the Internet.[6] The 2011 video deposition of Tony Hayward, nervous CEO of British Petroleum, also is preserved for us online. And there are thousands of other public court records and depositions available at the click of a few keystrokes.[7]

Court records are public records, particularly after the trial is over. They are reviewed by us, and shared in books, studies, newspapers, television, and the movies. For centuries, these records have been open to the public, and for decades, they have included video exhibits and depositions. Public access is an accepted part of our constitutional plan for an open democracy. That venerable principle is being advanced by citizens who are securing their court files in cases that expose community hazards and then sharing the facts with the public on the Internet.

This practice is a growing pain for those who endanger our safety. Wayward corporations, and the insurance companies who represent them, expect that after trial, the court records of their misconduct will be forgotten, buried in a courthouse cellar, and covered with a sleepy layer of dust. Instead, these records are being uploaded so that the evidence is available to the public. The move is to openness and accountability—two necessary components of a healthy democracy.

The Public’s Right to Access Case Records

U.S. Circuit Court Judge Frank Easterbrook wrote in Union Oil Company of California v. Leavell:

People who want secrecy should opt for arbitration. When they call on the courts, they must accept the openness that goes with subsidized dispute resolution by public (and publicly accountable) officials. Judicial proceedings are public rather than private property and the third-party effects that justify the subsidy of the judicial system also justify making records and decisions as open as possible. What happens in the halls of government is presumptively public business. Judges deliberate in private but issue public decisions after public arguments based on public records. . . . Much of what passes between the parties remains out of public sight because discovery materials are not filed with the court. But most portions of discovery that are filed and form the basis of judicial action must eventually be released.[8]

Our courts proclaim that the public has a constitutional right to access court records.[9]

The presumption of public access recognized and promoted by the local rule finds its root in the common law rights of access to judicial proceedings and to inspect judicial records—rights which are “beyond dispute.” . . . The court in Publicker, and other circuit courts of appeal, have gone beyond the undoubted common law right, however, and have found a constitutionally protected right, rooted in the First Amendment, to public access to civil trials.[10]

The general public has had online access to the contents of federal court files since 2005.[11] In Colorado courts, “C.R.C.P. 121, adopted in 1988, creates a presumption that court files will be open to the public unless a court order provides otherwise.”[12]

Hence, the rule creates a presumption that all court records are to be open; it allows a court to limit access in only one instance and for only one purpose (when the parties’ right of privacy outweighs the public’s right to know); and it grants to every member of the public the right to contest the legitimacy of any limited access order.[13]

In Exum v. United States Olympic Committee, the U.S. District Court for the District of Colorado held that “[i]n the absence of a showing of good cause for confidentiality, parties are free to disseminate discovery materials to the public.”[14] Courts have found that “[a]ccess to discovery materials is particularly appropriate when the subject matter of the litigation is of general public interest.”[15]

Openness Generally Trumps Privacy Interests

Public access to court records is founded on the principles of an open democracy.

A presumption of openness inheres in civil trials as in criminal trials. . . . [T]he civil trial, like the criminal trial, plays a particularly significant role in the functioning of the judicial process and the government as a whole. . . . [P]ublic access to civil trials enhances the quality and safeguards the integrity of the fact finding process. It fosters an appearance of fairness, and heightens public respect for the judicial process. It permits the public to participate in and serve as a check upon the judicial process—an essential component in our structure of self-government. Public access to civil trials, no less than criminal trials, plays an important role in the participation and the free discussion of governmental affairs.[16]

In fact, it is “unreasonable, as a matter of law, for the parties to litigation to expect or to assume that all of the court files will remain private.”[17]

A claim that a court file contains extremely personal, private, and confidential matters is generally insufficient to constitute a privacy interest warranting the sealing of the file. Likewise, prospective injury to reputation, an inherent risk in almost every civil lawsuit, is generally insufficient to overcome the strong presumption in favor of public access to court records.[18]

Naturally, when a party’s privacy concerns outweigh the public’s right to know, the court will enter a protective order sealing such matters.[19] As trial lawyers know, protective orders are freely granted in cases that do not impact public safety or raise public concerns.

To protect community safety, parties have posted public records and videos of child abuse,[20] abuse of the handicapped,[21] nursing home abuse of the elderly,[22] school violence,[23] workplace violence,[24] bank foreclosure fraud,[25] drinking water contamination,[26] air and water pollution,[27] insurance bad faith,[28] and hundreds of other cases of public concern. In response, errant corporations have counter-punched with personal attacks and much more. For example, in the food industry, where video evidence has lead to successful civil and criminal charges, corporate lobbyists in twelve states are pushing legislation that criminalizes such videos and the videographers.[29] Fortunately, the fact that these laws would indict innocent witnesses has been noted by the press and prosecutors, and the bills have struggled for approval.[30] It is in this environment that I was contacted by my new friend Fred Burtzos, counsel for State Farm Insurance Company, and asked to debate the issue here.

So, how do citizens share these types of records? They collect the public portion of their court file, minus any sealed material. Using the records, images, and video depositions, they create a short video and upload it to the Internet. If their video exposes dangers to the community, it is likely to be watched and shared, and it may go viral. If it is not newsworthy, it is likely to have limited circulation.

Conclusion

The sharing of public records is not just growing, it is exploding. Over the last few years, my company, JusticeTV, has joined the trend to assist lawyers and their clients with the technical aspects of creating, editing, and uploading the videos. The process is simple. The law is well-established. And, like sunshine, it is healthy for our community.

John K. Pineau is a trial lawyer in civil and criminal courts. He has handled a number of high-profile cases and lectures on trial tactics and strategy. He also is the president of JusticeTV, LLC, a company that assists lawyers and their clients in creating and sharing public record videos—(303) 440-4444, johnpineau@yahoo.com, www.johnpineau.com.

This article originally appeared in the February 2014 issue of The Colorado Lawyer. Articles are available online to CBA members.

 


[1] See www.youtube.com/watch?v=mfwujaV7Ia8.

[2] See www.youtube.com/watch?v=7MZaEt6lOq8.

[3] See www.youtube.com/watch?v=gVoIz2zNX9U.

[4] See www.youtube.com/watch?v=m_2m1qdqieE.

[5] See www.youtube.com/watch?v=xHlt1W83JFU.

[6] See www.youtube.com/watch?v=9zxAJO7owy8.

[7] See www.youtube.com/watch?v=VUINT2ibjSE.

[8] Union Oil Company of California v. Leavell, 220 F.3d 562, 568 (7th Cir. 2000) (citing U.S. Bancorp Mortgage Co. v. Bonner Mall Partnership, 513 U.S. 18, 27-29 (1994), and In re Memorial Hospital of Iowa County, Inc., 862 F.2d 1299, 1302-03 (7th Cir. 1988)).

[9] Mann v. Boatright, 477 F.3d 1140, 1149 (10th Cir. 2007) (citing Nixon v. Warner Communications, Inc., 435 U.S. 589, 597 (1978)).

[10] Huddleson v. City of Pueblo, Colorado, 270 F.R.D. 635, 638 (D.Colo. 2010) (citing Publicker Industries, Inc. v. Cohen, 733 F.2d 1059 (3d Cir. 1984)). See Mann v. Boatright, 477 F.3d 1140. 1149 (10th Cir. 2007) (“Courts have long recognized a common-law right of access to judicial records.”).

[11] See www.cod.uscourt.gov/courtoperations/faq.aspx.

[12] Office of the State Ct. Administrator v. Background Info. Serv., 994 P.2d 420, 429 (Colo. 1999).

[13] In Anderson v. Home Ins. Co., 924 P.2d 1123, 1126 (Colo.App. 1996), the court stated:

In the Open Records Act, § 24-72-201, C.R.S. (1988 Repl.Vol. 10B), the General Assembly has declared that, with certain specified exceptions, it is “the public policy of this state that all public records shall be open for inspection by any person at reasonable times. . . .” This public policy means that, unless there exists a legitimate reason for non-disclosure, any member of the public is entitled to review all public records. There is no requirement that the party seeking access must demonstrate a special interest in the records requested.

[14] Exum v. United States Olympic Committee, 209 F.R.D. 201, 206 (D.
Colo. 2002).

[15] In re Texaco, Inc. 84 B.R. 14, 17 (Bankr.S.D.N.Y. 1988) (citing In Re “Agent Orange” Product Liability Litigation, 821 F.2d 139, 146 (2d Cir. 1987)).

[16] Huddleson, 270 F.R.D. at 635, 638 (citing Nixon, 435 U.S. 589).

[17] Anderson v. Home Ins. Co., 924 P.2d 1123 (Colo.App. 1996) (citing Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975)).

[18] Doe v. Heitler, 26 P.3d 539, 544 (Colo.App. 2001).

[19] FRCP 26(c) and CRCP 26(c).

[20] See www.youtube.com/watch?v=N8RzT0NiruQ.

[21] See www.youtube.com/watch?v=IAYXJ26j2Po.

[22] See www.wkyc.com/video/1027702353001/0/Investigator-Hidden-camera-catches-nursing-home-abuse.

[23] See www.youtube.com/watch?v=xDifkMzSLuw.

[24] See www.youtube.com/watch?v=qkxbG5HADso.

[25] See 4closurefraud.org/depositions.

[26] See www.slideshare.net/MarcellusDN/lawsuit-deposition-of-pa-dep-official-tara-upadhyay-on-water-testing-procedures.

[27] See www.youtube.com/watch?v=HgR3lDg9KhY.

[28] See www.youtube.com/watch?v=5hIzsc7muxo.

[29] Oppel, Jr., “Taping of Farm Cruelty Is Becoming the Crime,” The New York Times (April 6, 2013), www.nytimes.com/2013/04/07/us/taping-of-farm-cruelty-is-becoming-the-crime.html?_r=0.

[30] Id.

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.

People v. Stell: Breach of POA Agent’s Fiduciary Duty is Properly Included in Criminal Indictment

CashmanBy Barbara Cashman

In an 11/7/13 published opinion, the Colorado Court of Appeals ruled on substantial questions relating to the Uniform Power of Attorney Act (UPOA) as it relates to an agent’s duties, and the types of activities authorized under a power of attorney (POA). In People v. Stell, 2013CA0492, the court of appeals reversed and remanded with directions a case involving a criminal indictment of an agent who under a POA who liquidated the principal’s assets. This decision has wide and beneficial implications for principals who have executed POAs and whose agent are acting in their own self-interests, are converting their principal’s assets for the agent’s use, or who are otherwise stealing from them. Here’s a sketch of the factual background of the case.

The principal (referred to as “victim” in the opinion) executed a POA in 2009 in Virginia. Both Virginia and Colorado have adopted the UPOA so, even though the statutory citations vary, the law is substantially the same. In the POA, the principal named as agent his son, the defendant, Stell. While acting as agent under the POA, Stell wasted no time liquidating all of principal’s bank accounts, CDs, a 401K account, a piece of real property and the timber sold from that land – to the tune of $453,928.81. The following year, Stell proposed that the principal place other assets into a trust so they would be protected from creditors. The trust document that the principal signed at his agent Stell’s direction did not name the principal as beneficiary of such trust, and so the principal was permanently deprived of the use and benefit of those assets. In October 2010, principal terminated the POA and asked the Denver District Attorney’s office to investigate. As a result of the investigation, a nine-count indictment was drawn, eight counts for theft and one count for conspiracy. The appeal of the trial court’s ruling is based on the dismissal of counts 1, 2, 4 and part of 3 – relating to the authority of the agent, Stell, to transfer the principal’s property as agent under the POA. In its dismissal of those counts, the trial court ruled that because Stell had authority under the POA to do anything with the principal’s property that principal could do with it, Stell could not commit theft against his principal. The court of appeals soundly rejected this line of thinking.

The POA is a document that confers broad powers, but it is no license to steal. In this criminal case, the court of appeals examined carefully the fiduciary duty owed by an agent to his principal under the UPOA. Citing a Virginia Supreme Court decision, the court of appeals stated that “powers of attorney are strictly construed.” (Opin. at ¶17) Going further, the court ruled that the expansive language in a POA should be interpreted narrowly and should be construed in light of the surrounding circumstances. It soundly rejected the argument that, because a POA typically gives a broad grant of authority, it could somehow give an agent the authority to misbehave, commit theft, and otherwise breach fiduciary duties owed as a consequence of the nature of the principal-agent relationship.

The fact that a POA contains a broad grant of authority to the agent does not mean that an agent can abuse that authority. The agent is duty-bound (as in an agent’s fiduciary duty, as described in the UPOA) to exercise authority while acting as agent with the utmost good faith and loyalty. The court of appeals rejected the trial court’s reasoning that a broad grant of authority to the agent implied that an agent’s actions were somehow still “authorized” because agent was acting under a POA, even though the agent’s actions were in violation of his fiduciary duties. In ¶21 of the decision, the court of appeals identified the factual questions appropriate for a jury’s determination of whether an agent under a POA was acting within or outside of his or her scope of authority as determined by agent’s fiduciary duties. They included the following questions of whether agent acted: (1) in accordance with principal’s reasonable expectations and consistently with the principal’s interests and intent; (2) in good faith; (3) loyally for the principal’s benefit; and (4) with the care, competence, and diligence ordinarily exercised by agents in similar circumstances.

In reversing and remanding the counts of the indictment dismissed by the trial court, the court of appeals gives an indication that the days of the POA as a “license to steal” for non-criminal law purposes are over. This is an important development for Colorado – for both the new mandatory reporting of financial exploitation law (read my post about that law here) as well as the ability of exploited elders and other at-risk persons to recover funds improperly taken from them by an agent under a POA. It gives more protection for principals who have been taken advantage of by their agents to establish that the agent’s conduct was improper and to strengthen the ability to recover such funds that were improperly used or converted for the agent’s exclusive benefit.

Barbara Cashman is a solo practitioner in Denver, focusing on elder law, estate law, and mediation. She is active in the Trust & Estate and Elder Law sections of the CBA and is the incoming chair of the Solo/Small Firm section. She contributes to the SOLOinCOLO blog and blogs weekly on her law firm blog, where this post originally appeared.  She can be contacted at barb@DenverElderLaw.org.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Burying the Body—Dismantling the Corpus Delicti Rule and Adopting the Trustworthiness Standard (Part 2)

Evig_SamuelBy Samuel A. Evig

Editor’s Note: This is Part 2 of a two-part series. Part 1 is available hereThe article originally appeared in the November 2013 issue of The Colorado Lawyer.

Evidence Corroborating a Confession

The LaRosa Court articulated three distinct ways in which evidence can corroborate a confession, and these three ways seem only to confound the philosophical question of whether trustworthiness is an interpretation of corpus delicti or replacement for it. Further, although the Court articulated three ways to corroborate confessions, it provided no examples or guidance to illustrate those methods. Trial courts, at least initially, must rely on case law from other jurisdictions to guide their rulings. Although the opinion provides little distinct guidance, analyzing the three methods helps to sketch the outlines of the standard.

The first method the Court articulated is when facts provided at trial “corroborate facts contained in the confession.”[1] Under this scenario, the visitor logs provided by the prosecution in LaRosa would help to corroborate the confession.[2] Those logs corroborate facts contained in the confession—LaRosa’s statement about where and when the offense happened. Cases interpreting the trustworthiness doctrine do not require independent corroboration for each fact articulated in a confession.[3] All that is required is that some facts corroborate some parts of the confession.

U.S. v. Kirk[4] illustrates this method of corroborating a confession. There, Kirk confessed to trading drugs for a handgun, and was found in possession of a handgun.[5] Authorities charged him with distributing a controlled substance in relation to the incident where he obtained a handgun.[6] No witness testified about any of the facts of that sale, except the witnesses presenting Kirk’s confessions. The non-confession evidence offered by the prosecution (possession of a gun, possession of drugs, Kirk’s prior history of drug distribution) would not, by themselves, have been sufficient to convict him of drug distribution.

Yet the appellate court upheld Kirk’s conviction, relying on the “detailed nature” of Kirk’s confessions, evidence showing Kirk had significant prior involvement in drug trafficking, the physical evidence near him (a gun, drugs, and drug paraphernalia), and a second confession to a cellmate.[7] The court noted, in terms of the necessary evidentiary standard, that the “evidence need not be sufficient, on its own, to establish the body of the offense beyond a reasonable doubt, or even by a preponderance of the evidence.”[8] In the Kirk case, the finding of the gun (alleged proceeds from an earlier drug transaction), along with the other factors, provided sufficient corroboration.[9]

The second way to corroborate the confession, according to LaRosa, is for the prosecution to “provide facts that establish the crime which corroborate facts contained in the confession.”[10] Although this method sounds like the first, it applies in situations where the prosecution proves the existence of a crime, but has to rely on the confession to prove a key element of it—such as the identity of the perpetrator. One way to distinguish these two methods is that the first uses corroboration to prove a crime occurred, while the second uses corroboration to show who committed a crime.

An example of this method of corroboration comes from Fontenot v. State.[11]There, authorities accused Fontenot of a robbery that turned into a kidnapping and first-degree murder.[12] Fontenot made incriminating statements to a friend and fellow inmate that fell short of outright confessions but that implicated him, and he made a detailed confession to police admitting involvement in the kidnapping and robbery.[13] His confession to police implicated a third party as the actual killer, but that third party was later exonerated.[14] At trial, independent, non-confession evidence proved a crime happened. The victim, clearly, had been murdered; yet none of the non-confession evidence proved Fontenot’s involvement.

The court, applying a trustworthiness standard, analyzed evidence at trial and affirmed the conviction. The court first found the statements he made to a cellmate and to a friend to be of a different character than his outright confession to police—and these statements buttressed the confession to police.[15] In addition, the court considered the similarities between the non-confession evidence and the confession evidence. Among other similarities, the court noted that witnesses’ descriptions of the abductor’s truck matched what Fontenot described, that the amount taken during the robbery roughly matched the amount Fontenot admitted he stole, and that descriptions of the clothing the victim wore during the abduction matched the description Fontenot gave of the robbery victim’s clothing.[16] Although the case contained conflicting evidence, the court found all that was necessary was that the confession be corroborated in some manner.[17] Because facts presented at trial corroborated specific facts in the confession; the confession was trustworthy and served to prove Fontenot’s involvement in the crime.

The third way to corroborate a confession is when “facts under which the confession was made show that the confession is trustworthy or reliable.”[18] It is the LaRosa Court’s inclusion of this third method that makes the case unique, and that kindles the debate about whether the Court was jettisoning the corpus delecti rule or merely interpreting it. Deciding whether a confession is itself sufficiently reliable to be trustworthy involves a host of factors, many of which apply to the more common but related problem of deciding when to suppress a confession as involuntary under the Fifth Amendment.[19]

First, a court may consider the person to whom the defendant confessed, because a confession to a friend or family member may not carry the same concerns of coercion or overreaching as a confession to police.[20] Second, the circumstances prompting the confession may be relevant—because some circumstances provide a very clear motive to falsely confess.[21] When the confession occurred in relation to when the suspect became aware of an investigation also can be important, because the lack of an investigation eliminates the possibility of police coercion.[22] Some courts even consider whether the suspect confessed more than one time,[23] although other courts disagree with this reasoning.[24] Still other courts look for information within the confession that is not available to the public or that shows an independent source of knowledge.[25]

As the LaRosa Court noted, “[t]he corroborating facts may be of any sort whatever, provided only that they tend to produce a confidence in the truth of the confession.”[26] If Colorado follows case law from other jurisdictions, almost anything corroborating the confession can be used to support it. The question then becomes exactly what standard of proof is necessary for the corroboration and how does a court determine what is sufficient corroboration.

The Evidentiary Standards

The question of what level the corroboration must meet to support a confession-based conviction is at the heart of the argument between the LaRosa dissenters and the majority. Neither the dissent nor the majority argues that the trustworthiness standard affects the admission of confessions. Instead, the standard presents a question of sufficiency to support conviction.[27] Both the dissent and the majority understand that the trial court—as opposed to a jury—makes a decision regarding the legal sufficiency of the evidence. Where the parties disagree is whether the standard is incorporated into Colorado’s existing sufficiency of the evidence law or is something new. Understanding the dissent’s position on this issue is a useful way to understand the application of the new rule.

First, the dissent argues the majority misinterpreted the Opper series of cases because those cases did not create a new standard but only imposed a way of interpreting the common-law rule of corpus delicti for federal courts.[28] The dissent argues the trustworthiness standard is the kind of “open-ended balancing test exhaustively disparaged and ultimately rejected as constitutionally inadequate by the Supreme Court.”[29] Besides being too open-ended, the dissent asserts the “substantial evidence standard” overruled corpus delicti and that LaRosa should have been decided on this basis alone.[30]

The “substantial evidence standard” mentioned by the dissent is set forth in Crim.P. 29. It permits the defense to move for judgment of acquittal once the prosecution rests.[31] The test for such motions is articulated in People v. Bennett.[32] Under Bennett, the trial court must consider whether

the relevant evidence, both direct and circumstantial, when viewed as a whole and in the light most favorable to the prosecution, is substantial and sufficient to support a conclusion by a reasonable mind that the defendant is guilty of the charge beyond a reasonable doubt.[33]

The test requires the prosecution to have provided evidence, sufficient to convict, for each element of the crime.

The LaRosa dissent argues that the substantial evidence standard, adopted by our rules of criminal procedure, implicitly overturned the common law of corpus delicti.[34] The argument is that Crim.P. 29 now requires all the evidence, including stand-alone confessions, to be viewed in the light most favorable to the prosecution, that the rule has long eliminated any distinction between direct and circumstantial evidence, and thus a confession standing alone often will be sufficient to defeat a motion for judgment of acquittal. That is, the jury should decide whether a confession in any particular case is sufficient to prove guilt beyond a reasonable doubt.

The majority does not go so far. Instead, it states that the trustworthiness standard is to be treated “like a rule affecting the sufficiency of the evidence to be analyzed by the court following a motion for judgment of acquittal.”[35] The key difference, according to the majority, is that the trustworthiness standard focuses not on the elements of the crime, but only on the evidence corroborating the confession itself.[36] Thus, it serves a different purpose than the sufficiency of the evidence test.[37]

The majority did not articulate what should happen if a trustworthy confession is the sole piece of incriminating evidence. Based on the limited guidance in the opinion, if that confession is trustworthy, it should suffice to support a conviction (assuming it provides evidence for each material element of the crime). That seems to be the whole reason behind jettisoning the corpus delicti rule. Of course, the corollary to that reasoning is that if the confession is not trustworthy, and it is the sole piece of incriminating evidence, the majority would bless the trial court granting the motion for judgment of acquittal.

The dissent would not engage in a trustworthiness analysis at all, and instead simply would apply the substantial evidence standard to reach a decision. Under the dissent’s position, an uncorroborated confession must be viewed in the light most favorable to the prosecution—that is, it must be viewed as trustworthy—and in that light would never justify a judgment of acquittal.

Guidance for Practitioners

Practitioners first need to be aware of when the trustworthiness doctrine applies. It does not apply to all cases with confessions; only cases where the primary piece of incriminatory evidence is a confession should be affected. Another way of recognizing affected cases is for attorneys to ask themselves whether the case has proof, other than the confession, which if true would be sufficient to sustain a conviction. In terms of typical fact patterns, attorneys should beware of inchoate crimes and crimes with silent victims (pre-verbal children, disabled persons, or deceased victims where the cause of death is at issue).

Practitioners need to recognize a second issue regarding whether the standard applies. That issue involves whether Colorado courts will find a difference between “admissions” and “confessions.”[38] Some courts, based on their reading of Opper, do not distinguish between admissions and confessions.[39] But other courts do.[40] Still other courts do not make the admission/confession distinction, but find some kinds of statements (pre-investigation statements for instance) so reliable as to require no corroborating evidence.[41] There are strong policy reasons to treat admissions and confessions made before a criminal investigation differently—namely, there should be no real concern about police overreaching when police are not yet involved. Where Colorado falls on the spectrum of admissions versus confessions or pre-investigation statements versus post-investigation statements is not at all clear.

If the confession is the primary piece of incriminating evidence, the practitioner needs to examine whether other facts corroborate facts within the confession, whether facts establish the crime the confession describes, and the specific facts surrounding the confession itself.[42] As noted above, case law from other jurisdictions is likely to be persuasive given the lack of Colorado law on this topic. The flexibility of the standard means almost anything is in play at this point to help corroborate the confession.

Conclusion

The fine lines defining this new doctrine have yet to be sketched by Colorado’s appellate courts. Some case law is necessary to fill in the cracks of this new construction. Until then, the one clear point from LaRosa is that it gives prosecutors a fighting chance in cases where victims cannot speak for themselves. For the defense bar, LaRosa signals a shift as well, because under corpus delicti, the defense could have a hearing before trial on the issue and, if successful, avoid trial altogether.[43] The current guidance in LaRosa indicates the proper time to apply the test is “like a rule affecting the sufficiency of the evidence to be analyzed by the court following a motion for judgment of acquittal.”[44] Further, proving that a confession is trustworthy is often much easier than proving the crime happened—which is something both the defense bar and prosecutors may need to consider in plea bargaining cases. Ultimately, the decision creates new issues for both prosecutors and defense attorneys in some of the most difficult cases for both sides.

Samuel A. Evig is a deputy district attorney in the 18th Judicial District—sevig@da18.state.co.us. The views expressed in this article are not necessarily those of the 18th Judicial District Attorney’s Office.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

 

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[1] LaRosa, 293 P.3d at 578.

[2] The majority opinion in LaRosa does not explicitly decide whether the evidence presented would be enough to support his conviction under the trustworthiness standard. The majority does not address this issue because they decided application of the new standard would violate his due process rights. LaRosa, 293 P.3d at 578-79. Given that the Court found corpus delicti could operate to frustrate justice in crimes against very young children, and that the Court found this reasoning (along with other factors) sufficient to overturn the rule, it seems likely the Court would have upheld a trial court finding of sufficient corroboration. In fact, the Court cited both Robson and Meredith as support for cases in which convictions were barred by the rule in its discussion. Id. at 575. Those cases, for the most part, are factually indistinguishable from LaRosa. The implicit guidance of the opinion is that if the case were decided under the trustworthiness standard, LaRosa’s conviction would stand.

[3] Moran, supra note 3 at 852. Moran argues independent evidence can bolster “any aspect of the confession, including obvious and uncontroverted facts,” and thus the rule does not protect defendants as well as corpus delicti. See also U.S. v. Sterling, 555 F.3d 452 (5th Cir. 2009) (prosecution need not corroborate each part of a confession for it to support a conviction; rather, the corroboration of portions of the statement suffice to corroborate the statement as a whole); Heiges, 779 N.W.2d at 912-13 (analyzing a confession of a mother to drowning her newborn child under a Minnesota statute requiring corroboration of confessions and holding corroboration is not necessary for every part of the confession).

[4] U.S. v. Kirk, 528 F.3d 1002, 1106-07 (8th Cir. 2008).

[5] Id.

[6] Id. at 1110.

[7] Id. at 1112-13.

[8] Id. at 1111, citing U.S. v. Eagle, 515 F.3d 794, 807 (8th Cir. 2008) and Whiteside v. U.S., 346 F.2d 500, 505 (8th Cir. 1965).

[9] A similar case is Sterling, 555 F.3d at 456-57. There, a defendant confessed to acquiring a gun in a drug deal sometime before his arrest. The appellate court upheld the trial court’s decision to find the confession corroborated (even though defendant took the stand and recanted the confession) based on officers finding the gun, prior act evidence showing Sterling had dealt drugs, and the facts of the confession being specific enough to enhance its reliability.

[10] LaRosa, 293 P.3d at 578.

[11] See generally Fontenot II, 881 P.2d 69.

[12] Id. at 73-74, citing Fontenot v. State, 742 P.2d 31 (Okla.Cr. 1987) (Fontenot I).

[13] Id. at 76-78. The specific statements that were not to made police involved him telling a friend he knew the identity of the criminals and telling a cellmate that he “knew we’d get caught.”

[14] The confession he made to police was similar to a confession provided by a co-defendant named Ward. Both men attempted to cast blame for the actual homicide on a third person, Tidwell. Evidence conclusively proved that Tidwell had no involvement. See Fontenot I, 742 P.2d at 31; Fontenot II, 881 P.2d at 79. Here, the trustworthy confession was trustworthy in the general sense to prove Fontenot’s involvement in the crime, but obviously not trustworthy in all its details.

[15] Fontenot II, 881 P.2d at 78.

[16] Id. at 78-79.

[17] The inconsistencies were not minor. Fontenot stated the victim was stabbed, but forensics showed she was shot; the body was not found where he said it would be; and there was no evidence the body had been set on fire, as he claimed it had. Id. at 79. In addition, the person Fontenot implicated as a conspirator was exonerated. As noted by the Fontenot II Court, the standard does not require that there be “no inconsistencies whatsoever between the facts proven and the facts related in the confession.” Only when the inconsistencies “so overwhelm the similarities” is a confession rendered untrustworthy. Otherwise, the jury decides what weight to assign to the confession.

[18] LaRosa, 293 P.3d at 578.

[19] There is an expansive body of case law regarding the voluntariness of confessions. See generally Colorado v. Connelly, 479 U.S. 157 (1986); People v. Gennings, 808 P.2d 839 (Colo. 1991). Although the factors articulated in these cases and their progeny play into the trustworthiness analysis, practitioners must remember that trustworthiness is a sufficiency finding, as opposed to an admissibility finding. Further, although a confession may or may not be voluntary, that does not, by itself, render it trustworthy. See In re K.A., 60 A.3d 442.

[20] Heiges, 779 N.W.2d at 911; Fontenot II, 881 P.2d at 78.

[21] In re K.A., 60 A.3d 442 at 450.

[22] Heiges, 779 N.W.2d at 911.

[23] Tilley v. State, 963 P.2d 607, 612 (Ok.Crim.App. 1998) (upholding a murder conviction against a claim of lack of trustworthiness of confessions based, in part, on the finding that there were multiple confessions) superseded by statute on other grounds in Coddington v. State, 142 P.3d 437 (Ok.Crim.App. 2006).

[24] Weisser, 150 P.3d at 1051. Weisser specifically held that multiple confessions do not establish the trustworthiness of such statements. The factual context of the case involved a man confessing to molesting a child on several occasions, then claiming Huntington’s disease caused the confessions.

[25] Mauchley, 67 P.3d at 489.

[26] LaRosa, 293 P.3d at 577-78, citing Wigmore on Evidence § 2071 at 511.

[27] Id. at 578. The majority states, in a paragraph about whether the trustworthiness standard is a rule affecting admissibility or sufficiency, that “the better approach is to treat the trustworthiness standard, at least for procedural purposes, like a rule affecting the sufficiency of evidence to be analyzed by the court following a motion for judgment of acquittal.” The dissent agrees the test is one of sufficiency. See id. at 580-81. Other jurisdictions find the test to be one of admissibility. See Mauchley, 67 P.3d at 490.

[28] LaRosa, 293 P.3d at 580.

[29] Id., citing Crawford v. Washington, 541 U.S. 36, 68 (2004). In this argument, the dissent is not alone. See Moran, supra note 3 at 851-53. The majority even notes some state courts reject the very arguments the majority adopted. LaRosa, 293 P.3d at 579, citing People v. McMahan, 548 N.W.2d 199, 204 (Mich. 1996) and State v. Ray, 926 P.2d 904, 906 (Wash. 1996) (court applying the corpus delicti rule overturned the conviction of a defendant who molested his 3-year-old child).

[30] LaRosa, 293 P.3d at 581.

[31] This is, of course, a useful simplification, because Rule 29 lists several times at which the defense may raise the motion.

[32] People v. Bennett, 515 P.2d 466, 469 (Colo. 1973).

[33] Id.

[34] LaRosa, 293 P.3d at 581.

[35] Id. at 578.

[36] Id. at 576.

[37] Id.

[38] The term “confession” means, here, an “admission of guilt.” LaRosa, 293 P.3d at 576. The term “admission” means, here, a statement falling short of admitting guilt, but tending to prove guilt. A good example is Opper’s admission to providing loans (discussed in the text above). His statement did not admit guilt, but tended to prove guilt when viewed with the other evidence in the case.

[39] See State v. Trexler, 342 S.E.2d 878, 880 (N.C. 1986) (describing the difference between admissions and confessions and holding the trustworthiness standard applies to both).

[40] See Fontenot II, 881 P.2d at n.11. The court there found two admissions Fontenot made to be exempt from the rule, and recognized a conflict with Opper. See also Heiges, 779 N.W.2d at 908-13 (incriminatory admissions to non-police witnesses helped to sufficiently corroborate a confession to police).

[41] See U.S. v. Irving, 452 F.3d 110, 118 (2d Cir. 2006) (identifying statements made before the commission of a crime and co-conspirator statements as requiring no corroboration), citing Warszower v. U.S., 312 U.S. 342, 347 (1941) and U.S. v. Simmons, 923 F.2d 934, 954 (2d Cir. 1991).

[42] LaRosa, 293 P.3d at 578.

[43] See Robson, 80 P.3d at 913 (case dismissed after a hearing before trial).

[44] LaRosa, 293 P.3d at 578.