August 24, 2019

Archives for January 18, 2012

Legal Writing Pro: Avoid These Clichés Like the Plague

1. An Apple a Day

Example: “The State prosecuted the astronaut on a more serious charge because it wanted a second bite at the apple.”

Don’t distract your reader with an imaginary fruit salad. Instead, explain why your opponent shouldn’t get what it wants: “The State added a new charge only because the court rejected its first bail request.”

2. Giant Ball of Twine

Example: “Her state tort law claims were inextricably intertwined with Medicare regulations.”

Popular variations: inextricably linked and inextricably connected.

Don’t get stuck in the tangled web. Instead, emphasize why the connection matters: “Unless the provider violated Medicare regulations, Plaintiff’s state tort claims must fail.”

3. Your Eminence

Example: “Dr. Smith’s resume demonstrates that she is eminently qualified to opine on damages.”

Have you ever heard of an expert who is qualified, but not eminently so? I didn’t think so. The same goes for such expressions as eminently reasonable and eminently clear. Just stick to the facts: “Mary Smith is qualified to testify because she has a doctorate in economics and has testified in 24 other federal antitrust cases.”

4. Slip Sliding Away

Example: “If the Court allows large punitive damages in this case, it will head down a slippery slope.”

When I was in law school, my contracts professor challenged us to get through our entire course without once using the phrase slippery slope. We held out for just two days before someone slipped. In its place, just explain the danger of not doing what you want: “If the Court allows large punitive damages here, Defendants will be forced to pay many times for the same claim.”

5. Bald Faith

Example: “Plaintiff’s conclusory allegations and bald assertions cannot withstand scrutiny.”

I’m convinced that some of us lawyers develop keystrokes for these couplets. Is any allegation not conclusory? Is any assertion not bald? Judges tell me that these predictable pairs are like fingernails on the chalkboard. Better to focus on what makes the assertions so bald: “Although Jones claims promissory estoppel, he cites no facts to suggest that he relied on Smith’s alleged promise.”

I’ll stop now so I don’t go down a slippery slope of my own. But if I’ve opened Pandora’s box here and you think clichés are the Achilles’ heel of legal writing, please send me more of these tempting truisms—either the ones you love to write or the ones you hate to read.

Ross Guberman is the founder and president of Legal Writing Pro, an advanced legal-writing training and consulting firm. He has conducted more than a thousand programs on three continents for many of the largest and most prestigious law firms and for dozens of state and federal agencies and bar associations. Ross is also a Professorial Lecturer in Law at The George Washington University Law School, where he teaches an advanced seminar on drafting and writing strategy. When you see the logo, you’re reading an article from Legal Writing Pro, where the article originally appeared.

HB 12-1016: Allowing Motion to Disqualify Public Utilities Commissioner for Failure to Be Impartial

On January 11, 2012, Rep. Balmer introduced HB 12-1016 – Concerning limiting ex parte communications by commissioners of the public utilities commission. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill allows a party to a proceeding before the public utilities commission (PUC) to file a motion seeking the disqualification of a public utilities commissioner or an administrative law judge for failure to be impartial. A district court may stay or suspend the proceedings of the PUC if the PUC fails to disqualify a commissioner from the proceedings. If the disqualification of a commissioner results in the loss of a quorum, the decision rendered by a commissioner designated as a hearing officer or by an administrative law judge is the final decision of the PUC. The rule of necessity, which states that under some circumstances an adjudicator must hear a case even if the adjudicator has an interest in the case, does not apply.

The bill specifies that the standards contained in the Colorado code of judicial conduct apply to commissioners and PUC administrative law judges. The bill requires the director to post memoranda regarding ex parte communications by commissioners and administrative law judges on the PUC’s web site within five business days. Discussions by commissioners or administrative law judges on pending legislative proposals will no longer be exempted from disclosure as an “adjudicatory proceeding”.

Summaries of other featured bills can be found here.

HB 12-1015: Modifying the Sunrise Review for Proposals to Regulate an Unregulated Profession or Occupation

On January 11, 2012, Rep. Holbert and Sen. Neville introduced HB 12-1015 – Concerning the procedure for the review of a proposal to regulate an unregulated profession or occupation. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, persons proposing the regulation of a currently unregulated professional or occupational group must submit the proposal to the department of regulatory agencies, and the department normally must conduct a sunrise review and analysis of, and issue a sunrise report and recommendations on, the proposed regulation within 120 days after the proposal was submitted. However, the department need not conduct a sunrise review of a proposal if the department finds that specified conditions are met.

The bill modifies the sunrise review process for analyzing proposals to regulate an unregulated professional or occupational group submitted on or after July 1, 2012. The changes to the sunrise process do not affect proposals to regulate a profession or occupation that are submitted prior to July 1, 2012.

Summaries of other featured bills can be found here.

HB 12-1010: Elimination of 3-Year Waiting Period for Reissuance of Lost Mutual Ditch Share Certificate

On January 11, 2012, Rep. Baumgardner and Sen. Giron introduced HB 12-1010 – Concerning the reissuance of a lost share certificate of a mutual ditch company. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Water Resources Review Committee. If a person loses a mutual ditch share certificate, the person may file with the mutual ditch company a request for reissuance of the certificate, but current law requires the company to wait for 3 years before issuing a replacement certificate. The bill eliminates the 3-year period and specifies that a person who is named in the books of the company as a lienholder on the lost certificate is also entitled to file a request for reissuance of a lost certificate.

Summaries of other featured bills can be found here.

HB 12-1007: Requiring Agencies to Issue Regulatory Analysis for All Proposed Rules

On January 11, 2012, Rep. Szabo and Sen. Grantham introduced HB 12-1007 – Concerning the requirement that a regulatory analysis be issued prior to the promulgation of rules by a state administrative agency. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Under current law, if any person so requests, a state administrative agency must issue a regulatory analysis of any proposed rule at least 15 days prior to a rule-making hearing. The bill requires agencies to conduct the analysis for every proposed rule, regardless of whether an analysis has been requested. The bill also requires each regulatory analysis to include information on the effect of the proposed rule on jobs in Colorado. If the agency specifies that the proposed rule only makes grammatical, format, or organizational changes and makes no substantive changes, an analysis is not required. The bill also states that the general assembly determines that amendments to the law made by this bill can be implemented within existing appropriations and, therefore, no separate appropriation of state moneys or allocation of full time equivalent state employees is necessary to carry out the purposes of the bill.

Summaries of other featured bills can be found here.

HB 12-1002: Amending State APA to Allow Rules of State Agency in Effect on Date Person Applies for New Permit to Govern that Application

On January 11, 2012, Rep. Sonnenberg and Sen. Jahn introduced HB 12-1002 – Concerning the rules of state agencies applicable to applications for permits. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill creates the “CLEAR Act”, which stands for “Creating Level Expectations for Application Review.” The bill amends the “State Administrative Procedure Act” (APA) to state that the rules of a state agency in effect on the date that a person applies for a new or renewed permit govern the application for a new permit or for renewal of the permit. If the statutes governing the agency’s permit process and the requirements to qualify for a permit have changed, and the agency has not yet adopted revisions to the rules to implement the new statute as of the date that a person applies for a new or renewed permit, the agency must grandfather in the application under the rules in effect on the date of the application, unless the agency determines in writing that the statutory changes materially affect the health and safety of the public and that use of the existing, unrevised rules is likely to result in an unsafe situation if the applicant does not comply with the new statutory requirements and with new rules. If the agency makes this determination, the agency must treat the application as pending, provide a written notice to the person that states the reasons the application is incomplete, and give the person a reasonable opportunity to comply with all new lawful requirements.

The bill defines “permit” as a grant of authority by an agency that authorizes the holder of the permit to do some act not forbidden by law but not allowed to be performed without such authority. “Permit” does not include a professional license issued by a licensing board or agency to conduct a profession or occupation.

Summaries of other featured bills can be found here.

2012 Medicaid Numbers Released by Colorado Department of Health Care Policy

On January 6, 2012, the Colorado Department of Health Care Policy and Financing released its 2012 Social Security Cost of Living Adjustments. According to the report, monthly Social Security and Supplemental Security Income benefits will increase by 3.6% in 2012. The 300% income limit, regional income trust maximum, Medicare premiums, home equity maximum, minimum monthly maintenance needs allowance maximum, and the community spouse resource allowance will also increase.

The following tables list the 2011 and 2012 income and resource limits for Adult and Long-Term Care Medicaid categories, regional income trust maximum, Medicare premiums, home equity maximum, minimum monthly maintenance needs allowance maximum, and the community spouse resource allowance.

Supplemental Security Income Limits

January 2011  January 2012
Individual in own home $674  $698
Individual in home of another $449.34  $465.34
Couple in own home $1,011  $1,048
Couple in home of another $674  $698
In-kind Support and Maintenance maximum (ISM) $244.66  $252.66
300% limit $2,022  $2,094

Nursing Facility

Income Trust Gross Income Limits and Average Private Pay Rate

January 2011 January 2012
Region I

Counties: Adams, Arapahoe, Boulder, Broomfield, Denver, and Jefferson

$6,914 $7,046
Region II

Counties: Cheyenne, Clear Creek, Douglas, Elbert, Gilpin, Grand, Jackson, Kit Carson, Larimer, Logan, Morgan, Park, Phillips, Sedgwick, Summit, Washington, Weld, and Yuma

$6,412 $6,690
Region III

Counties: Alamosa, Baca, Bent, Chaffee, Conejos, Costilla, Crowley, Custer, El Paso, Fremont, Huerfano, Kiowa, Lake, Las Animas, Lincoln, Mineral, Otero, Prowers, Pueblo, Rio Grande, Saguache, and Teller

$5,915 $6,190
Region IV

Counties: Archuleta, Delta, Dolores, Eatle, Garfield, Gunnison, Hinsdale, La Plata, Mesa, Moffat, Montezuma, Montrose, Ouray, Pitkin, Rio Blanco, Routt, San Juan, and San Miguel

$6,336 $6,566
Average Private Pay Rate $6,394 $6,623

Medicare

Medicare Part A – Hospital Insurance

Seniors and certain individuals under 65 with fewer than 30 work quarters of Medicare covered employment

$451
Medicare Part A – Hospital Insurance

Seniors over 65 with 30-39 quarters of Medicare covered employment

$289
Medicare Part B

Physician services, outpatient hospital services, certain home health services, durable medical equipment, and other items

$99.90
Medicare Skilled Nursing Facility Co-insurance

Days 21 thru 100 each benefit period

$144.50

Spousal Protection

January 1, 2011 January 1, 2012
Community Spouse Resource Allowance (CSRA) $109,560 $113,640
Minimum Monthly Maintenance Needs Allowance (Maximum) $2,739 $2,841

July 1, 2010 July 1, 2011
Minimum Monthly Maintenance Needs Allowance (MMMNA) $1,822 $1,839
Excess Shelter $547 $552

Home Equity Maximum

January 1, 2011 January 1, 2012
$506,000 $525,000

Contact Information: Medicaid.Eligibility@hcpf.state.co.us

Click here to review the full report.

Tenth Circuit: Unpublished Opinions, 1/17/12

On Tuesday, January 17, 2012, the Tenth Circuit Court of Appeals issued no published opinions and three unpublished opinions.

Unpublished

Whitmore v. Jones

Hausler v. Felton

Heavy Petroleum Partners, LLC v. Atkins

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