August 24, 2019

Archives for January 16, 2013

Are Lawyers Unhappy?

rhodesIt depends who you ask.

If you ask lawyers, you’ll find we’re as happy with our work as anybody else:  we give it about an 80% approval rating, with lawyers in government and non-profits happiest, and lawyers in private practice less so. But if you ask the media and other anecdotal sources, you’ll run into a persistent urban legend that says lawyers as a whole are an unhappy lot.

A 2011 law journal article conducted a “meta-analysis” of the published research and influential media pieces on lawyer happiness over the past three decades. (Email me at and I’ll send you the cite.) The results are paradoxical:  on the one hand, most lawyers give their profession a thumbs up; on the other, we’re more likely to engage in substance abuse and suffer from depression and other forms of mental distress than non-lawyers.

It’s nice to know that we’re not as bad off as the urban legend would lead us to think, at least in terms of job satisfaction, but it’s disturbing to think of the economic, societal, and personal cost associated with the unhappy 20%. Plus, as the law journal article points out, it’s possible for depressed and alcoholic lawyers to answer a survey saying they’re happy – e.g., because of denial or lack self-awareness. If that’s happening, then the 80% approval rating doesn’t look as good.

Lawyers as a group are fascinating people – bright, articulate, caring, with wide interests and a drive to make an impact in one of society’s essential institutions. If 1 in 5 lawyers aren’t engaged in and inspired by what we do every day, then we’re wasting a lot of human potential, and our clients aren’t getting our best either.

There seems to be a persistent belief in our profession that lawyer malaise is just part of what we sign up for – like some kind of injury you need to walk off or put some ice on, so you can get back in the game. This engenders an sense of inevitability about job-related suffering and feelings of powerlessness about making changes. No wonder the lawyers I’ve known who aren’t happy tend to be really unhappy.

I used to live that perspective, but not anymore. Now I believe we can rediscover our passions and make them our realities. We can change; it’s not easy, but we can do it. And every time one of us finds the courage to do so, we take one more step toward lessening the enormous toll all that unhappiness takes on ourselves, the ones we love, and the clients we serve.

It’s a New Year. If you’re one of the 20%, maybe it’s your year to make that change.

After 20+ years in private practice, Kevin Rhodes recently gave himself the title “Change Guru” to describe his work helping individuals and organizations to make transformative changes. He leads lead workshops on that topic for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. Check out his website at

Tenth Circuit: In Death Penalty Case, Court Affirms Lower Courts’ Denial of Petitions for Post-Conviction Relief

The Tenth Circuit published its opinion in Lott v. Trammell on Monday, January 14, 2013.

This is a death penalty appeal involving two murders that were committed over twenty-five years ago. Petitioner Ronald Lott was convicted by an Oklahoma jury of two counts of first-degree murder in December 2001. The state trial court, in accordance with the jury’s verdict, sentenced Lott to death on both counts in January 2002. After his direct appeal and application for state postconviction relief were unsuccessful, Lott sought federal habeas relief by filing a petition for writ of habeas corpus. The district court denied Lott’s petition. Having been granted a certificate of appealability with respect to several issues, Lott appealed.

The Tenth Circuit affirmed the district court’s denial of federal habeas relief as follows. It is important to note that the review of Lott’s appeal was governed by the provisions of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA). Under AEDPA, the standard of review applicable to a particular claim depends upon how that claim was resolved by the state courts.  As a result, the Tenth Circuit’s focus on appeal was upon the rulings of the Oklahoma Court of Criminal Appeals (OCCA), not those of the federal district court.

1) Speedy Trial Claim: Lott contended that the state trial court violated his Sixth Amendment rights by denying his motions to dismiss the criminal proceedings on speedy trial grounds. The Tenth Circuit held that Lott failed to establish that the OCCA erred in concluding that two of the factors in Barker v. Wingo, 407 U.S. 514 (1972),  favored the State.  Consequently, Lott failed to establish that the OCCA’s balancing of the Barker factors was erroneous.

2) Erroneous Aiding and Abetting Instruction: Lott contended that the state trial court violated his constitutional rights by instructing the jury that he could be found guilty of felony murder on an accomplice liability theory, even though the prosecution at a pretrial motions hearing had disavowed reliance on an aiding and abetting theory of felony murder. The Tenth Circuit concluded that Lott was given plenty of notice concerning the State’s alternative theories of guilt, and the trial court’s aiding and abetting instruction was amply supported by the evidence presented at trial.

 3) Admission of Other-Crimes Evidence: Lott contended that he was deprived of his right to a fundamentally fair trial due to the admission at trial of evidence that he was convicted of two other rapes. A review of the state court record indicated that Lott’s trial was not rendered fundamentally unfair by the admission of the evidence of the other rapes. Aside from the other-crimes evidence, the prosecution’s evidence of Lott’s guilt of rape and murder (particularly the DNA evidence) was overwhelming. Further, it was clear to the Tenth Circuit that the other-crimes evidence would have, at a minimum, been admissible by the prosecution during the second-stage proceedings in order to prove the continuing-threat aggravator. Lastly, the jury rejected the continuing-threat aggravator, and thus it did not appear that this evidence had any impact on the jury’s sentencing decision.

4) Prosecutorial Misconduct—Introduction of Hearsay Statements of Robert Miller: Lott contended that the prosecution engaged in prejudicial misconduct by injecting hearsay statements of Robert Miller into both stages of trial in order to prove that, even though Miller may have been present during the commission of the crimes, it was Lott who killed both victims because he needed to eliminate witnesses. However, the transcript showed it was Lott’s counsel who first introduced Miller’s statements into evidence by cross-examining McKenna regarding Miller’s statements.

5) Trial Counsel’s Failure to Investigate and Present Mitigating Evidence: Lott contended that his trial counsel was ineffective for failing to investigate and present at the second-stage trial proceedings available mitigating evidence. The Tenth Circuit concluded that the only reasonable inference that could be drawn from the record was that Lott’s counsel determined that introduction of Lott’s social history would be more detrimental than beneficial, and thus made a strategic decision not to present that evidence. After carefully examining the record on appeal, the Tenth Circuit concluded that Strickland v. Washington, 466 U.S. 668 (1984), was reasonably applied.

6) Admission of Improper Victim Impact Evidence: Lott contended that the state trial court’s admission of improper victim impact testimony from witness Cynthia Houston, the granddaughter of victim Fowler, resulted in the arbitrary and capricious imposition of the death penalty in violation of the Eighth and Fourteenth Amendments. Although Lott’s constitutional rights were violated by the admission of Houston’s testimony opining about the appropriate sentence for Lott, the Tenth Circuit held that the  testimony did not have the required “substantial and injurious effect” on the outcome of the second-stage proceedings, given the overwhelming evidence of Lott’s guilt, as well as his admitted guilt of the two subsequent rapes, and the cruel and brutal nature of the crimes.

7) Sufficiency of Evidence—Avoid Arrest or Prosecution Aggravator: Lott contended that insufficient evidence was presented at his trial to support the jury’s second-stage findings that the two murders were committed in order to avoid arrest or prosecution. The Tenth Circuit concluded that the OCCA’s determination that the evidence was constitutionally sufficient to support the jury’s finding of the aggravator was neither contrary to, nor an unreasonable application of, clearly established federal law.

8) Cumulative Error: Lott lastly contended that the cumulative effect of all of the constitutional errors in his case warranted federal habeas relief. Upon de novo review, the Tenth Circuit could not conclude that, having identified only a single constitutional error (as described above), and having exhaustively examined the record on appeal, that Lott’s trial was “so infected . . . with unfairness as to make the resulting conviction[s] [or sentences] a denial of due process.”


SB 13-004: Allowing Persons Over 65 Years Of Age to Renew Identification Cards Electronically

On Wednesday January 9, 2013, Sen. John Kefalas introduced SB 13-004 – Concerning Authorization to Renew a State-Issued Identification Card by Electronic Means. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill authorizes a person over 65 years of age to electronically renew an identification card issued by the department of revenue. Assigned to the Local Government Committee.



SB 13-003: Establishment of a Greenhouse Gas Mitigation Project to Capture Coal Mine Methane Gas

On Wednesday, January 9, 2013, Sen. Randy Baumgartner and Rep. Don Coram introduced SB 13-003 – Concerning Methane Gas Captured from Active and Inactive Coal Mines. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill establishes a greenhouse gas mitigation project involving the capture of coal mine methane gas from active and inactive coal mines. Each kilowatt-hour of energy generated by captured coal mine methane gas is counted as one kilowatt-hour for purposes of compliance with the renewable energy standard. Assigned to the State, Veterans, & Military Affairs Committee.

SB 13-001: Modification of Existing Child Care Expenses Tax Credit

On Wednesday, January 9, 2013, Sen. John Kefalas and Rep. Daniel Kagan introduced SB 13-001 – Concerning Income Tax Credits to Support Working Families, and, In Connection Therewith, Enacting the “Colorado Working Families Economic Opportunity Act of 2013”This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill modifies the existing child care expenses income tax credit by:

  • Allowing a taxpayer who is eligible for, but does not claim, the federal child care expenses income tax credit to claim the state credit;
  • Basing the amount of the state credit on the eligible federal credit as opposed to the actual federal credit claimed; and
  • Allowing the credit to be claimed for expenses related to caring for a dependent of the taxpayer who is physically or mentally incapable of caring for himself or herself and who lives with the taxpayer.

The bill creates a child tax credit against state income taxes for a resident individual who is eligible to claim the federal child tax credit. The amount of this credit is $100 for each qualifying child who is 5 years of age or younger at the end of the taxable year for which the credit is claimed. This credit is refundable.

The Colorado earned income tax credit, which is 10 percent of the federal earned income tax credit, is a refund mechanism under the taxpayer’s bill of rights (TABOR). So, it only applies if the state revenues are in excess of the constitutional limitation on state fiscal year spending. The bill removes this contingency so that an eligible taxpayer may claim the Colorado earned income tax credit for any tax year beginning in 2013. Assigned to the State, Veterans, & Military Affairs Committee.

Tenth Circuit: Unpublished Opinions, 1/14/13

On Monday, January 14, 2013, the Tenth Circuit Court of Appeals issued one published opinion and one unpublished opinion.

Rangel v. Sanofi Aventis US

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