May 23, 2019

Archives for May 1, 2013

Morphic Fields and Change (Part 2): The Game of Change

rhodes(This isn’t going to make much sense if you haven’t read Part 1 and therefore don’t know what I mean by “morphic field.” If you need to go back and catch up, we’ll wait.)

Lawyer unhappiness has gotten a lot of press, and there are lots of people offering help. Usually, they emphasize either personal or institutional morphic fields, but not both. The former teach individual coping or performance enhancement skills, or offer career counseling. The latter set out to reform the legal institutions they believe are to blame.

Both strategies converge at a single choice: either the lawyer needs to change (focus on the individual’s field), or the lawyer’s environment needs to change (focus on the external field). This choice seems logical, but it’s incomplete, and therefore change based solely on one choice vs. the other won’t last. The problem is that the choice doesn’t recognize that our internal and external morphic fields are interdependent, and therefore change in one means change in the other. If the changes in both fields aren’t compatible, then the result is more dissonance in both of them, and the intended change will fall short.

This dynamic explains why sometimes we try to make change and end up being thwarted by self-sabotage or by external opposition, or both. It also explains why lawyers in solo practice are among the happiest, often citing as the main reason the control they hold (theoretically, at least) over their work/personal life balance.

By contrast, reformers wrestle directly with external morphic fields, such as law school, the bar exam, or the way law firms operate. Reformers derive energy from demonizing the external environment – making IT the problem. If you’re a reformer at heart, this will work for you, but the key is “at heart.” If that’s not where your reform efforts are coming from, then the reformer approach will have the opposite effect: it will take your power away. That’s because an external focus diverts your power away from what YOU need and want, and to divert power in this way is to lose it. (The great reformers also deal internally as well, but that’s a topic for another time.)

Most of us aren’t reformers at heart. For us, the process of creating sustainable change involves articulating our core values and desires, shaping them into goals and intentions, committing to them, and making concerted efforts to change our beliefs and behaviors to make them happen.

Doing all that is a practice: there are skills to learn, drills to run. But then, once we’ve done our reps to change our personal fields, we still need to watch how our external fields respond. The game of change is like any other game: we can practice our part only so much, but once the game starts, it takes on a life of its own, with its own dynamics. If we want to win, we do well to learn not just the fundamentals, but also how to play the game.

To be continued.

Kevin Rhodes is on a mission to help lawyers be happy. No kidding. In his writing, workshops, coaching, and consulting, he helps individuals and organizations to make transformative changes. He leads workshops on change for a variety of audiences, including the CBA’s Job Search and Career Transitions Support Group. Check out his website at http://kevin-rhodes.com/.

Colorado Celebrates Law Day

ChiefJusticeBenderBy Michael Bender, Chief Justice of the Colorado Supreme Court

This week, people across the United States will observe Law Day. It is a time each year to celebrate the rule of law and the role the courts and legal system play in helping people peacefully resolve disputes in modern society. Here in Colorado, we will be privileged and honored to have U.S. Supreme Court Justice Sonia Sotomayor help us mark the occasion.

On May 2, Justice Sotomayor will join me and Governor John Hickenlooper to formally dedicate the Ralph L. Carr Colorado Judicial Center. The courthouse was named after Colorado’s 29th governor, widely respected for opposing the internment of American citizens of Japanese descent during World War II. Some of Governor Carr’s relatives will be in attendance, as will some of the Japanese-Americans who were interned despite Governor Carr’s efforts. Is there a more fitting tribute than to name our state’s only appellate courthouse after an individual who sacrificed his promising political career to advance the ideals of a just and equal society?

The Ralph L. Carr Colorado Judicial Center is home not only to the Colorado Supreme Court and the Colorado Court of Appeals, but also to the state law library, the Office of the State Court Administrator and other law-related agencies serving Colorado, such as the Office of the Attorney General and the Office of the Public Defender. However, the building is much more than an office building and modern courthouse. It also is a monument to justice for all and a museum in which we all can learn.

While there are no tickets left for the dedication event, we hope you will join us by watching the event via live stream on our website at 1:30 p.m. on May 2: http://www.courts.state.co.us/sotomayorevent/

Beyond May 2, I invite all of Colorado to visit the courthouse. It is open to the public Monday through Friday, and I encourage you to come and see the numerous public art installations, to attend oral arguments, to review the building’s architectural connections to the State Capitol building, and best of all, to try out our new interactive learning center.

A team of justices, judges and staff spent more than a year designing interactive exhibits that engage young and old alike. The learning center, which will be unveiled during the dedication, features a short movie and several exhibits that ask visitors to consider what life would be like if there were no rules and nothing to guarantee our freedoms. The learning center’s other exhibits show visitors what it’s like to be a judge by allowing them to hear evidence and decide the outcomes of cases and to hear from current and former justices and judges who share their real-life experiences from the bench. Visitors can also see a timeline of Colorado’s judicial milestones and learn about the history of our court system. And, of course, what courthouse learning center experience would be complete without visitors having an opportunity to serve as an attorney or juror in a case?

This week, we will dedicate our state’s newest courthouse and mark the role of the courts in Colorado and beyond. I hope each of you will consider taking a moment to reflect on the stability the rule of law provides in our daily life and how our judicial system is designed to ensure that stability and to protect our freedoms.

As the Martin Luther King Jr. quotation engraved into a wall of the courthouse reads: “Injustice anywhere is a threat to justice everywhere.” As justices and judges of the State of Colorado, we are so proud to serve you and to do our best to uphold the rule of law.

Colorado Court of Appeals: Evidence of SANE Examination and Examiner’s Report Admissible in Sexual Assault Case

The Colorado Court of Appeals issued its opinion in People v. Tyme on Thursday, April 25, 2013.

Sexual Assault—Hearsay—Sexual Assault Nurse Examiner—Medical Diagnosis or Treatment.

Defendant Justyn E. Tyme appealed the trial court’s judgment of conviction entered on jury verdicts finding him guilty of sexual assault, third-degree assault, and false imprisonment. The judgment was affirmed.

This case stems from Tyme’s sexual assault of the victim, G.A. Five days after the assault and at the request of law enforcement, G.A. submitted to a Sexual Assault Nurse Examiner (SANE) examination that was performed by Sue Goebel. At trial, Goebel testified, as an expert witness, about information she had learned from G.A. during the exam. Both Goebel’s testimony and her report were allowed as evidence at trial.

On appeal, Tyme contended that the trial court abused its discretion in concluding that both the SANE testimony and her report were admissible under the medical diagnosis or treatment hearsay exception because the purpose of the SANE examination was to collect evidence, not to treat or diagnose the victim. Generally, statements made for purposes of medical diagnosis or treatment, including a SANE exam, are admissible if (1) the statement is reasonably pertinent to treatment or diagnosis; and (2) the content of the statement is such that it is reasonably relied on by a physician in treatment or diagnosis. Here, Goebel testified that she relied on the medical history to guide her examination and used it “to diagnose and treat,” thereby satisfying the first prong of the reliability test. She also testified that SANEs normally rely on similar histories to “guide the[ir] diagnosis and treatment,” thereby demonstrating the reasonableness of her reliance on G.A.’s statements in satisfaction of the second prong of the reliability test. Accordingly, the trial court did not abuse its discretion in admitting Goebel’s testimony or her report.

Summary and full case available here.

Tenth Circuit: Federal Court Had No Power to Examine State Court Conviction Using Writ of Coram Nobis

The Tenth Circuit published its opinion in Rawlins v. State of Kansas on Tuesday, April 30, 2013.

Damaris Rawlins was convicted in 2001 in Kansas state court for battery of a police officer. The Kansas court sentenced Rawlins to three years’ probation. Rawlins timely challenged her conviction in the Kansas courts both through direct appeals and through Kansas’s collateral review system, arguing that certain constitutional errors tainted her conviction. Those state-court proceedings lasted for an unusually long period of time, finally concluding with a denial of relief in 2011. Because Rawlins was not in state custody (including probation) at the conclusion of her collateral review proceedings, she could not bring a 28 U.S.C. § 2254 habeas corpus petition in federal court. Rawlins therefore petitioned the District of Kansas for a writ of audita querela or, in the alternative, a writ of coram vobis. The Tenth Circuit discussed the history of these writs and chose to use the term coram nobis in its opinion.

The district court found the writ of audita querela was the writ that applied and denied her petition after examining her constitutional claims as if she had brought a § 2254 petition. The Tenth Circuit held that was the incorrect writ because audita querela addresses unanticipated situations that arise after judgment. Coram nobis, however, addresses defects that existed before the judgment, and United States v. Morgan makes clear that such defects include those that would otherwise be raised in habeas proceedings but for the petitioner no longer being in custody.

While Morgan permits federal courts to entertain coram nobis applications in “extraordinary cases presenting circumstances compelling its use to achieve justice,” it only applies to a federal court reopening its own case. A federal court cannot apply the writ to a state court case, or even another federal court. Because the district court had no power to examine Rawlins’ conviction, the Tenth Circuit vacated the decision and remanded for dismissal due to lack of jurisdiction.

Tenth Circuit: Unpublished Opinions, 4/30/13

On Tuesday, April 30, 2013, the Tenth Circuit Court of Appeals issued two published opinions and ten unpublished opinions.

Gibbons v. National Real Estate Investors

Davis v. Cline

Van Ross v. Shelton

Fleming v. Evans

Houck v. Gurich

Houck v. Heaton

QEP Energy Co. v. Sullivan

United States v. Walters

Allen v. Corrections Corp. of America

Ankeney v. Zavaras

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

HB 13-1307: Clarifying that the Absence of Certain Identifying Information Does Not Invalidate a Title to Real Property

On April 12, 2013, Rep. Elena Kagan and Sen. Lucia Guzman introduced HB 13-1307 – Concerning the Effect of the Inclusion of a Legal Description on the Validity of Documents Affecting Title to Real Property. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

Current law states that the absence of a street address, assessor’s schedule number, or parcel number in a document of title to real property does not render the document ineffective if a legal description is included. The bill specifies that the absence of a legal description does not necessarily invalidate the document or its recording in the county clerk and recorder’s office, nor determine the validity of the document as against a person obtaining rights in the property. At the request of the Real Estate Section, the CBA LPC has voted to support this legislation.

The bill passed 3rd Reading in the House on Friday, April 26. The bill is assigned to the Judiciary Committee in the Senate; the most likely hearing date will be Wednesday, May 1 at 1:30 p.m.

HB 13-1304: Allowing Unemployment Benefits to Employees Subject to Employer-Initiated Lockout

On April 11, 2013, Rep. Dominick Moreno and Sen. Lucia Guzman introduced HB 13-1304 – Concerning Eligibility for Unemployment Compensation Benefits when Unemployment is Due to a LockoutThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report and the legislative Fiscal Notes.

This bill allows an employee who is subject to an employer-initiated lockout to receive unemployment benefits. It also removes the existing definitions of an offensive lockout, defensive lockout, and multiemployer bargaining unit.

Labor-management disputes rarely escalate to the level of an employer locking out employees. Since 1996, Colorado workers have not experienced a lockout by any employer. If no lockouts are experienced in any given year, there will be no impact on the Unemployment Compensation (UC) Trust Fund.

This bill was amended upon Second Reading in the House, but passed Third Reading unamended and was introduced in the Senate on April 22. It was assigned to the Senate Judiciary Committee, where it was not amended and was referred to the Senate Committee of the Whole for Second Reading.

Colorado Court of Appeals: Construction Contract Undeniably for Public Works Project and Bond Required

The Colorado Court of Appeals issued its opinion in Tarco, Inc. v. Conifer Metropolitan District on Thursday, April 25, 2013.

Breach of Contract—Summary Judgment—CRS § 38-26-106.

In this breach of contract action, plaintiff Tarco, Inc., a construction contractor, appealed the district court’s grant of summary judgment for defendant Conifer Metropolitan District (CMD). The judgment was affirmed in part and reversed in part, and the case was remanded with directions.

In 2005, Tarco and CMD entered into a series of contracts for construction projects related to the development of a shopping center. Tarco alleged that the work on two of the contracts was substantially complete and that CMD wrongfully withheld payment on them.

Tarco sued, based on nonpayment, and CMD counterclaimed, alleging material breach by Tarco. After two years of litigation, CMD moved for partial summary judgment, asserting that Tarco couldn’t recover under the contracts because it did not satisfy CRS § 38-26-106 (the bond statute). The district court granted the motion. Tarco did not dispute that it did not provide a bond, and the district court concluded that the bond statute barred recovery by contractors failing to post bond.

On appeal, Tarco argued that the court erred by granting summary judgment. Tarco contended that there was a genuine disputed issue of material fact as to whether the contracts at issue were for “public works” projects. If they were not, they were not subject to the bond statute. The Court of Appeals found there was no disputed issue that the projects were public works. The bond statute applies to “any building, road, bridge, viaduct, tunnel, excavation, or other public works for any . . . political subdivision of the state.” The Supreme Court has interpreted “public works” extremely broadly. The contracts at issue were for the construction of a highway overpass and infrastructure components around the shopping center, including sewers, fire hydrants, retaining walls, paving, and roadways. The Court found these clearly to be public works subject to the bond statute, noting that there was no disputed issue of material fact in this regard.

CMD asserted that the bond statute is a “nonclaim statute” that creates an absolute bar to recovery or destroys the claim for relief itself, thus precluding Tarco’s equitable claims of waiver and estoppel. The Court disagreed. Nonclaim statutes deprive a court of subject matter jurisdiction. The Colorado Governmental Immunity Act (CGIA) is a nonclaim statute. CRS § 15-12-803 in the Colorado Probate Code is another. They are rare. The bond claim statute merely provides that unless a bond is provided, “no claim in favor of the contractor arising under the contract shall be audited, allowed, or paid.” It is not a nonclaim statute, and therefore Tarco’s noncompliance does not preclude its assertion of equitable defenses.

Tarco claimed there was a genuine and material factual dispute as to whether CMD affirmatively waived the bond requirement. CMD countered that, as a special district, it did not possess the power to waive the requirement. The Court agreed that a special district does not possess the power to waive the requirement of the bond statute. CRS § 32-1-1001 provides the express common powers of special districts, but does not include the power to waive the bond requirement. The Court will not imply such a power. Therefore, there was no genuine issue of material fact as to whether CMD waived its rights under the bond statute, because it could not.

The Court concluded that there was such an issue of material fact as to whether the doctrine of equitable estoppel applied to CMD’s conduct. A party asserting equitable estoppel must establish that the party to be estopped knew the facts and either intended the conduct to be acted on or so acted that the party asserting estoppel must have been ignorant of the true facts, and the party asserting estoppel must have reasonably relied on the other party’s conduct with resulting injury. Based on the evidence presented, the Court concluded that Tarco had demonstrated a genuine issue of material fact as to whether the foregoing facts were established. Therefore, CMD was equitably estopped by its conduct from asserting the bond statute as a defense to Tarco’s contract claims. The judgment was reversed as to the determination that the bond statute is a nonclaim statute and as to the dismissal of Tarco’s equitable estoppel claim, and the case was remanded for further proceedings.

Summary and full case available here.