April 20, 2019

Archives for September 2011

Colorado Court of Appeals: Husband’s Military Temporary Disability Retired List Pay Must Be Excluded Before Dividing his Retirement Benefits Pursuant to Divorce Decree

The Colorado Court of Appeals issued its opinion in In re the Marriage of Poland on September 29, 2011.

Dissolution of Marriage—Military—Retirement Benefits—Temporary Disability Retired List.

In this post-dissolution of marriage action, husband appealed from the order awarding wife a portion of the pay he received from the military after he was placed on the temporary disability retired list (TDRL). The order was vacated and the case was remanded for further proceedings.

The parties’ marriage was dissolved in 2005. Their separation agreement, which was incorporated into the decree, provided that husband’s military retirement benefits were marital property and would be divided, on his retirement, under the HuntGallo formula. [See In re Marriage of Hunt, 909 P.2d 525 (Colo. 1995).] The agreement further provided that the parties intended to divide husband’s “gross military retirement” and that if husband elected to receive Veterans Administration (VA) disability benefits and his disposable retirement pay was thereby reduced, wife’s share of the benefits would not be reduced. When husband was placed on the TDRL in September 2009, the trial court ordered husband to pay wife her share of his TDRL earnings as determined under the decree.

Husband contended that the trial court erred by awarding wife a portion of his TDRL pay. A military service member is placed on the TDRL if the member has a disability rating of at least 30% but the disability has not yet been determined to be permanent. The Uniformed Services Former Spouses’ Protection Act precluded the trial court from dividing anything other than “disposable retired pay,” as defined in the statute. However, based on 10 U.S.C. § 1408(a)(4)(C) of the Act, an amount equal to the amount of TDRL pay, as calculated based on husband’s percentage of disability when he was placed on the TDRL, must be excluded from the marital property; any amounts in excess of that amount may be divided under the decree. Because the trial court divided all of husband’s TDRL pay under the time-rule formula without considering the extent to which the pay was computed on husband’s disability, the order was reversed. On remand, the trial court must determine and exclude husband’s TDRL pay before dividing husband’s retirement benefits pursuant to the decree.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 29, 2011, can be found here.

Colorado Court of Appeals: Secrecy in Voting Requirement there to Protect Identity of Voter, Not Content of Ballot

The Colorado Court of Appeals issued its opinion in Marks v. Koch on September 29, 2011.

Colorado Open Records Act—Ballot—Identity—Colo. Const. Art. VII, § 8—Colorado Municipal Election Code.

In this proceeding under the Colorado Open Records Act (CORA), plaintiff Marilyn Marks appealed the district court’s judgment dismissing her case for failure to state a claim on which relief can be granted pursuant to the motion filed by defendant Kathryn Koch, the City Clerk of Aspen. The judgment was reversed and the case was remanded for further proceedings.

The public records Marks sought to have released under CORA were 2,544 digital copies (TIFF files) of ballots cast in the May 2009 Aspen mayoral municipal election, in which Marks was a losing candidate. Marks contended that the right to inspect the TIFF files was not contrary to the secrecy in voting requirement of article VII, § 8 of the Colorado Constitution. The Court of Appeals agreed. The secrecy in voting requirement seeks to protect the identity of a voter and not the content of his or her ballot (assuming the voter’s identity could not be discerned from the content of the ballot); therefore, it does not bar the latter from release under CORA.

Marks also contended that, because the TIFF files are not ballots, releasing them would not be contrary to the Colorado Municipal Election Code’s ballot storage and destruction provision. The Court agreed. The district court was ordered on remand to release the TIFF files to Marks for inspection pursuant to CORA, with the exception of those TIFF files that contain either a write-in candidate or ballot markings that could identify an individual voter.

This summary is published here courtesy of The Colorado Lawyer. Other summaries for the Colorado Court of Appeals on September 29, 2011, can be found here.

Inside the Infill: The Ralph L. Carr Colorado Judicial Center, Part 1

Editor’s Note: This is the first of three posts highlighting the new judicial center.

By Ryan Dravitz

Next on our ‘Inside the Infill’ tour we will be taking a look at the Ralph L. Carr Colorado Judicial Center. Every week this project is changing and we now have an exclusive inside look!

Thank you once again to the folks at Trammell Crow Company for making this tour possible.

First up, the 12-story office tower. On the left, this is what you would see when going into the back entrance located at 13th Avenue and Broadway. To the right is what you would first walk in to. Yes, there will be a security check point but what is unique about this complex is that you will be inside when you are waiting to get screened separate from both the elements and the lobby.

Looking down the lobby area (left) you have the waiting area for security as well as elevator access just down the hall. Up and away we go to the top floor where they are starting to complete the columns of the office tower. There were spectacular views from the top which we will have a post dedicated to coming up soon.

There is a section of the building connecting the courts to the office tower. Here you will be greeted by a 4-story atrium with a glass roof and solid glass wall. In the picture on the right, the gaps you see in the floor will be for a staircase connecting the floors.

The Supreme Court is spectacular with a glass dome above where you would stand in front of the justices. You also get a great view of the office tower.

The lobby of the courts will be complete with real stone columns in the front and a two-story entrance with a giant court seal. The court side of the complex also comes complete with judges quarters.

Keep your eyes peeled for more shots of this great project as well as a special look at the never before seen views!

Ryan Dravitz is a bicycle-wielding urban photographer and student studying for his Bachelor’s degree in Construction Management with the potential for future studies in Urban Planning. Ken Schroeppel is the founder and administrator of the DenverInfill website and companion site, DenverUrbanism. Ken is a planner and project manager at Matrix Design Group, a Denver-based planning and engineering consulting firm, where he specializes in redevelopment and urban renewal planning. They contribute to the DenverInfill Blog, where this post originally appeared on September 26, 2011.

Tenth Circuit: Unpublished Opinions, 9/29/11

On Thursday, September 29, 2011, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

Unpublished

United States v. Sainz-Ochoa

United States v. Villanueva

Thrasher v. Hickson

Teton Millwork Sales v. Schlossberg

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Colorado Court of Appeals: Announcement Sheet, 9/29/11

On Thursday, the Colorado Court of Appeals issued two published opinions and forty-one unpublished opinions.

Published

Marks v. Koch

In re the Marriage of Poland

Summaries of published cases are forthcoming, courtesy of The Colorado Lawyer.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Moot Court Judges Needed for National Asian Pacific American Bar Competition

The National Asian Pacific American Bar Association (NAPABA) will be hosting the Rocky Mountain Region Thomas Tang Moot Court Competition at the University of Denver on October 28, 2011. Volunteers are needed to serve as judges.

No experience, judicial or litigation, is necessary. All judges will receive a bench brief with all main issues and applicable case law, as well as suggested questions to ask competitors. Breakfast and lunch will also be provided.

For more information or to volunteer, contact Nicoal Miller or click here.

The Thomas Tang National Moot Court Competition was founded in 1993 by the Asian Pacific American Law Student Association of the South Texas College of Law. It is administered by the NAPABA Law Foundation and the NAPABA Judicial Council. The Competition honors the late Judge Thomas Tang, a champion of individual rights, an advocate for the advancement of minority attorneys, an ardent supporter of NAPABA and the moot court competition. Judge Tang served on the United States Ninth Circuit Court of Appeals from 1977 until his passing in 1995. Judge Tang’s wife, Dr. Pearl Tang, continues the legacy and participates every year.

The Competition is open to all students but is especially designed to reach out to Asian Pacific American law students and provide them with an opportunity to showcase their writing and oral advocacy skills and compete for scholarships totaling $10,000.

Tenth Circuit: Unpublished Opinions, 9/28/11

On Wednesday, September 28, 2011, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

Unpublished

Arles v. Astrue

Jones v. Bokor

Jobira v. Holder, Jr.

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

Janet Raasch: Truly Engaged Employees Lead to Highly Successful Law Firms

The following article is based upon a presentation to the Rocky Mountain Chapter of the Legal Marketing Association (www.legalmarketing.org/rockymountain), which took place on September 13 at Fogo de Chao Restaurant in Lower Downtown Denver. Laura Wegscheid discussed why law firms should enhance employee engagement in order to improve morale, operations, and the bottom line. Wegscheid is a senior consultant with Cast Communication Design (www.castcommunicationdesign.com), an internal communications consulting firm focused on helping businesses engage and align their employees.

A truly engaged employee is one who believes so strongly in an organization that he or she invests discretionary effort in its success.  In other words, a truly engaged employee is someone who regularly goes above and beyond his or her job description.

What does this mean in a law firm?  While equity partners (and those on the track to become equity partners) are best thought of as owners rather than employees, everyone else should be considered an employee.

The engaged non-equity track associate involved in document review will notice and point out an interesting new detail.  The non-engaged counterpart could ignore this detail, because it might make the job more difficult.

The engaged paralegal or legal assistant will cheerfully work evenings and weekends as a courtroom date draws near.  The non-engaged employee will complain and sulk.

The engaged mail room person will deliver a registered letter to a lawyer as soon as it arrives, allowing for timely consideration and response.  The non-engaged employee will wait until the next scheduled delivery cycle.

And finally, the engaged marketing director/manager/support person will devote extra time and effort to creating a truly customized client proposal, rather than simply answering RFP questions with the usual non-specific content.

In addition, employee engagement is not limited to the workplace.  An engaged employee will rave about his or her law firm outside the office as well — whether to neighbors on the sidewalk, fellow parents at a soccer game, or someone they meet at book club or a cocktail party.

When you consider these examples, it is easy to see how truly engaged employees can propel law firms from run-of-the-mill to highly successful.  “Defining and communicating the unique story or message at the heart of your law firm is essential to employee engagement,” said Laura Wegscheid.

The value of engaged employees

Modern research organizations use rigorous science to assess levels of employee engagement and link engagement to performance.

In 2009, Hewitt discovered that businesses with highly engaged employees have total shareholder return 19 percent higher than firms with average engagement.

According to a study of a large professional services firm by the Hay Group, the firm’s five most-engaged regional offices generated 43 percent more revenue per consultant (think lawyer) than the firm’s five least-engaged offices.

“According to Colorado Bar Association statistics,” said Wegscheid, “the average attorney has $446,500 in billable per year.  A 43 percent increase adds an additional $191,995 to this amount, for a total of $638,495 per lawyer.  That translates into $1.9 million extra for a firm of 10 attorneys, $3.8 million for 20 attorneys and $5.8 million for 30 attorneys.  This is a lot of money.”

Research clearly demonstrates that the more engaged your employees, the better your revenue, productivity, earnings, shareholder returns, employee retention and customer loyalty.

According to Gallup, about 16 percent of employees at any business are actively disengaged.  “Some call these people ‘CAVE dwellers,’ for ‘consistently against virtually everything,’” said Wegscheid.  “They will actively try to destroy your organization.

“An additional 29 percent truly believe in your business and are actively engaged in making it succeed,” said Wegscheid.  “That leaves the majority of your employees — approximately 55 percent — who are neither disengaged nor engaged.  Smart businesses focus on transforming these ‘neutrals’ into highly engaged employees.”

How to encourage employee engagement

Good internal communication is one of the best ways to move employees out of the middle and into the “high engagement” zone.

“Internal communication is evolving,” said Wegscheid, “with the balance shifting from a model weighted by formality and control towards a model that facilitates employee engagement. Few organizations fall squarely into one of these four models.”

The inner circle model has the highest level of formality/control and the lowest level of employee engagement.  Executives confer behind closed doors with no employee input.  Information travels through formal channels from the top down to managers, who tell employees what to do – but not why.  “Most, but not all, organizations have moved beyond this model,” said Wegscheid.

The cascade model is still quite controlled, but has a little more employment engagement.  Decisions are made at the top and information flows from the top down, but managers are expected to share some information with their teams.

In the dialogue model, decisions and information still flow from the top – but are often accompanied by an invitation to ask questions.  Feedback is limited to topics raised by leadership.  The process is formal, but two-way, with the goal of making sure employees understand the information that was communicated.

“Most organizations, including law firms, currently operate at the cascade level and perhaps at the dialogue level,” said Wegscheid.

The community model combines the highest levels of employee engagement with informality and freedom of expression.  “This model shares a mindset with social media,” said Wegscheid.  “Knowledge is not controlled at the top, but contributed by and commented on by all participants in a network.  Everyone has something to contribute.”

In the community model, leadership is still needed but messages can be initiated by anyone, encouraging the free flow of information throughout an organization.  In this model, individuals feel comfortable sharing expertise and learning from each other, which results in spontaneous collaboration by employees at all levels to solve a problem, rather than formal teams composed only of executives.  Employees as well as owners feel invested in the results.

“Because of sensitive information, proprietary relationships and a billable hour model that does not reward efficiency, the community model can be challenging for law firms,” said Wegscheid.  “However, there are elements of this model that can be incorporated.

Engaged employees are those who understand and believe in a law firm’s message.  This message can be created at the top and then delivered formally to employees (a low-engagement model).  Conversely, it can be created collaboratively (with facilitation by firm leaders) and made part of an ongoing conversation among employees (a high-engagement model).  Or it can be somewhere in between.

“The important thing,” said Wegscheid, “is to understand the value of employee engagement and actively consider which steps your firm can take to improve it – and consequently improve the firm’s bottom line.”

Janet Ellen Raasch is a writer, ghostwriter, and blogger (www.constantcontentblog.com) who works closely with professional services providers – especially lawyers, law firms, legal consultants and legal organizations – to help them achieve name recognition and new business through publication of keyword-rich content for the web and social media sites as well as articles and books for print. She can be reached at (303) 399-5041 or jeraasch@msn.com.

Bankruptcy Court: Debtor May Not Remove Language from Form Chapter 13 Plan Requiring Confirmed Plan to be Modified

The U.S. Bankruptcy Court for the District of Colorado issued its opinion in In re Butcher on Tuesday, September 20, 2011.

§ 1325; § 1327; § 501; § 502—Chapter 13

This case presented the question of whether a debtor may remove language from the district’s form chapter 13 plan requiring the confirmed plan to be modified following the bar date if timely proofs of claim, filed after plan confirmation, indicate that the debtor’s plan does not fully provide for secured and priority claims. The Court held that the Debtors’ alteration does not comply with the district’s L.B.R. 3015- 1(b)(1) requirement that chapter 13 plans must substantially conform to L.B. Form 3015-1.1. The Court discussed the interaction between chapter 13 plan confirmation and claim allowance in chapter 13 cases. The Court concluded that the language appearing in the form plan, which Debtors sought to remove, was necessary to give full effect to both accelerated plan confirmation under BAPCPA and the provisions in the Code and the Rules governing allowance of claims.

Other published Bankruptcy Court opinions can be found here. Unpublished opinions can be found here.

Colorado Supreme Court Amends Appellate Rules Certificate of Compliance Form

The Colorado Supreme Court has amended Appendix A (Colorado Appellate Rules Special Forms Index) to Chapter 32 of the Colorado Court Rules. The rule change required Form 6, “Certificate of Compliance,” to be revised, and the new form has been provided by State Judicial. Practitioners should begin using the new form immediately.

The form is available in Adobe Acrobat (PDF) and Microsoft Word formats; this form is not yet available as Word template. Download the new form from State Judicial’s individual forms pages, or below.

Appeals

  • Form 6 – “Certificate of Compliance” (revised 9/11)

Click here to read the full release, Rule Change 2011(12), about this change to the Appellate Rules Forms by the Colorado Supreme Court.

Colorado Women’s Bar Association: October Activities

CWBA Mom’s Luncheon: Join the CWBA for this popular luncheon, tailored for working “moms.”  Meet other moms, and discuss and hear about achieving work/life balance.

October 6, 2011 from 11:30 am to 1:00 pm. Click here for registration information.

CWBA Membership Reception: Get more out of your CWBA membership – meet and get to know Board members and Committee Chairs, and learn more details about the work of the CWBA.  Network with friends and colleagues, and visit with other CWBA members.

October 18, 2011 from 5:30 to 7:30 pm. For more information or to register, contact the CWBA at (303) 831-1040 or execdir@cwba.org.

October CWBA Clothing Drive:  The CWBA Legal Services Committee is gearing up for its annual Professional Clothing Drive to benefit the Center for Work Education and Employment (CWEE). CWEE is a local non-profit organization that helps its members prepare for, find, and keep employment.  CWEE’s “First Impressions Boutique” helps members build a professional wardrobe for their entry into the workforce.

The Professional Clothing Drive will take place Monday, October 3, 2011 through Friday, October 14.

The CWBA has arranged drop-off locations in Cherry Creek, LoDo, Uptown, Edgewater, and DTC, but they need one more drop-off location in the Northern suburbs (preferably Broomfield, Northglenn, Westminster, or Boulder).  If your office is located in any of these areas, and you would be willing to serve as a drop off location and don’t mind dropping off donated items at CWEE (1175 Osage Street, Suite 300, Denver, Colorado 80204) at the end of the Clothing Drive, please email Shelly Kuennen at shelly@thekuennenlawfirm.com.

Questions about CWBA events or activities?  Contact them at (303) 831-1040, or execdir@cwba.org, or visit our website at www.cwba.org.

Tenth Circuit: Unpublished Opinions, 9/27/11

On Tuesday, September 27, 2011, the Tenth Circuit Court of Appeals issued no published opinions and nine unpublished opinions.

Unpublished

PAMA Ventures, LLC v. Wellens

United States v. Ayala

Wright v. Franklin

Harris v. Kammerzell

United States v. Soto-Munoz

Grede v. Astrue

United States v. Drayton

Kemp v. Sloam

United States v. Moya-Breton

No case summaries are available for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.