September 26, 2018

Archives for August 28, 2013

Running Past Our Limits Update (Part 5) – Hold ’em or Fold ’em?

rhodesLast summer I wrote a series on lessons we all can learn from marathon training. (You can find it in the archives.) This series responds to requests for an update.

Each week, my training culminates in an aggressive weekend run. My latest was epic:  a marathon time just 30 seconds over the “impossible” two hour mark; 28 total miles at a 4:36 pace; plus another slow (5:18 pace) four miles tacked on at the end, just because. My body is now doing on the AMT/Open Stride machine what it was doing on the elliptical machine last February.

Compare that to the day before, when my family went to Copper Mountain to celebrate my daughter’s birthday. We rode the American Eagle chairlift up, and they hiked from there to the 12,441’ summit while I rode back down and shuffled around base village with my cane.

When do we stop believing, stop doing the “fake it till you make it” shuffle, stop taking the placebo, and just give up?

It’s not just a question for me and my marathon training; it’s a decision all of us inevitably face every time we try to create something new and big and exciting – hang our shingle, change jobs, launch a business, start an artistic project…. Hope, vision, and inspiration are strong fuel, and we run on them a long ways, but one day we hit one too many walls and run out of emotional gas, not to mention money. Now what? Do we accept our fate and go back where we came from? And what about this awful mess we’ve made of our lives in the meantime?

Wouldn’t it be nice if we could learn when to hold ‘em and when to fold ‘em before things get ugly?

Jonathan Fields, a lawyer turned serial entrepreneur, author, producer, blogger, and coach, wrote a book about this:  Uncertainty:  Turning Fear and Doubt into Fuel for Brilliance. It’s the best I’ve read on the subject, and can’t recommend it highly enough. Besides his usual insights, he serves up scores of internal and external strategies for deciding when to hit the eject button or not.

Three of his self-examination questions caught my eye over the weekend. “In light of the information and experiences you’ve had along the journey to date, does [your] original motive still hold true? Are you still equally or even more determined to make it happen? And given what you now know, do you believe you can make it happen?”

Yes, yes, and yes.

The creative journey always takes us places we didn’t expect. It’s by turns unnerving, threatening, unreasonable, unsafe, and just plain weird. And – what’s completely exasperating about it – creativity never gets stuck or quits; it just runs on like the Energizer Bunny. Which means if anybody’s going to wake up and end the dream, it’s up to us.

Guess I’m not ready to do that yet. Instead, I’m looking into new ways to take my training to a whole new level. How about you?

Kevin Rhodes is a lawyer in private practice who’s on a mission to help people love their work and their lives. He leads workshops for a variety of audiences, including the CBA’s Solo and Small Firm Section and the Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Civil Unions Language Added to Many Probate Forms by State Judicial

The Colorado State Judicial Branch amended many of its probate forms in August 2013 to include language about partners in civil unions. The amended forms include protective proceeding forms and decedent estate forms.

The new forms can be downloaded here, or from State Judicial’s forms page. All forms are available here as PDF files, and are available in Word or Word template from the State Judicial website.

PROBATE

  • JDF 782 – “Instructions to File Petition to Accept Adult Guardianship and/or Conservatorship in Colorado From Sending State” (revised 8/13)
  • JDF 840 – “Instructions for Appointment of a Guardian – Adult” (revised 8/13)
  • JDF 875 – “Instructions for Appointment of a Conservator – Adult” (revised 8/13)
  • JDF 785 – “Final Order Accepting Guardianship/Conservatorship in Colorado from Sending State” (revised 8/13)
  • JDF 824 – “Petition for Appointment of Guardian for Minor” (revised 8/13)
  • JDF 834 – “Guardian’s Report – Minor” (revised 8/13)
  • JDF 841 – “Petition for Appointment of Guardian for Adult” (revised 8/13)
  • JDF 846 – “Order Appointing Temporary Substitute Guardian for Adult” (revised 8/13)
  • JDF 848 – “Order Appointing Guardian for Adult” (revised 8/13)
  • JDF 857 – “Petition for Appointment of Co-Guardian or Successor Guardian” (revised 8/13)
  • JDF 861 – “Petition for Appointment of Conservator – Minor” (revised 8/13)
  • JDF 876 – “Petition for Appointment of Conservator – Adult” (revised 8/13)
  • JDF 877 – “Order Appointing Special Conservator – Adult or Minor” (revised 8/13)
  • JDF 878 – “Order Appointing Conservator for Adult” (revised 8/13)
  • JDF 879 – “Petition for Appointment of Co-Conservator or Successor Conservator” (revised 8/13)
  • JDF 910 – “Application for Informal Probate of Will and Informal Appointment of Personal Representative” (revised 8/13)
  • JDF 912 – “Renunciation and/or Nomination of Personal Representative” (revised 8/13)
  • JDF 916 – “Application for Informal Appointment of Personal Representative” (revised 8/13)
  • JDF 920 – “Petition for Formal Probate of Will and Formal Appointment of Personal Representative” (revised 8/13)
  • JDF 921 – “Order Admitting Will to Formal Probate and Formal Appointment of Personal Representative” (revised 8/13)
  • JDF 922 – “Petition for Adjudication of Intestacy and Formal Appointment of Personal Representative” (revised 8/13)
  • JDF 923 – “Order of Intestacy, Determination of Heirs, and Formal Appointment of Personal Representative” (revised 8/13)
  • JDF 924 – “Application for Informal Appointment of Special Administrator” (revised 8/13)
  • JDF 926 – “Petition for Formal Appointment of Special Administrator” (revised 8/13)
  • JDF 940 – “Information of Appointment” (revised 8/13)
  • JDF 948 – “Petition for the Determination of Heirs or Devisees or Both, and of Interests of Property” (revised 8/13)
  • JDF 990 – “Petition to Re-Open Estate” (revised 8/13)
  • JDF 999 – “Collection of Personal Property by Affidavit” (revised 8/13)

Click here for State Judicial’s forms page.

Tenth Circuit Seeks Comments on Proposed Local Rule Changes

On December 1, 2013, changes to the Federal Rules of Appellate Procedure will take effect. The Tenth Circuit Court of Appeals has issued a memo outlining those changes. On January 1, 2014, changes to the 10th Circuit local rules will take effect. From August 15 through October 11, 2013, the court invites comment and feedback on this year’s proposed changes to the local rules.

For comment purposes, the court has posted on the website both a clean draft of the proposed rules and a redlined version. Comments may be emailed to 10th_Circuit_Clerk@ca10.uscourts.gov. In addition, interested parties are invited to call the office of the Clerk at 303-844-3157 with any questions they may have.

A final version of the rules will be posted on the court’s website on or around November 25, 2013.

Tenth Circuit: Unconditional Guilty Plea not Knowing and Voluntary Where Court Incorrectly Told Defendant He Would Still Have Right to Appeal

The Tenth Circuit Court of Appeals published its opinion in United States v. Avila on Wednesday, August 21, 2013.

Ramiro Avila was charged with possession of a controlled substance with intent to distribute. After the district court denied his motion to suppress, Avila entered an unconditional guilty plea to the charge. Avila sought to appeal the denial of his motion to suppress. Because Avila entered an unconditional guilty plea, the Tenth Circuit considered whether Avila’s plea was made knowingly and voluntarily. Avila contended that his plea was not knowing and voluntary because it was induced by the district court’s statement that he would “still have a right to an appeal” if the court accepted his plea. Additionally, the record did not show that the government  made any statements that Avila’s right to appeal would be compromised, or that his attorney properly advised him he would lose his right to appeal.

The court held that when a court chooses to instruct a defendant that he has a right to appeal following the entry of an unconditional guilty plea, the court materially misinforms the defendant regarding the consequences of his plea when it fails further to advise him that the plea may limit that right. Under such circumstances, if the court tells the defendant without qualification that he has a right to appeal, a defendant’s plea is not knowing and voluntary.

The court specifically did not hold that a district court must advise a defendant concerning his right to appeal following the entry of an unconditional guilty plea. It did, however, suggest the Rules Committee “consider revising the rules to require the district court to advise a defendant, at least in a general way, that a guilty plea may prevent him from raising certain issues on appeal.”

The court vacated Avila’s conviction and remand the case with directions for the district court to vacate its sentence and allow Avila to withdraw his guilty plea.

Tenth Circuit: In SSDI and SSI Claims, “Not Severe” Impairments Must Still Be Considered at Step 4 of RFC Analysis

The Tenth Circuit Court of Appeals published its opinion in Wells v. Colvin on Monday, August 19, 2013.

Joe Ella Wells applied for Social Security Disability and Supplemental Security Income beginning in 1994 and after her claims went up and down on appeal to the Appeals Council and she refiled several times, an ALJ issued a decision in 2009 that is the subject of the present appeal. The administrative law judge (ALJ) concluded she was not disabled under the Social Security Act and the Appeals Council denied Wells’s appeal.

In a social security disability or Supplemental Security Income (SSI) case, an ALJ must evaluate the effect of a claimant’s mental impairments on her ability to work using a “special technique” prescribed by the Commissioner’s regulations. At step two of the Commissioner’s five-step analysis, this special technique requires the ALJ to determine whether the mental impairment is “severe” or “not severe.” The ALJ found Wells’s mental impairments were not severe. But the regulations also instruct that even if the ALJ determines that a claimant’s medically determinable mental impairments are “not severe,” he must further consider and discuss them as part of his residual functional capacity (RFC) analysis at step four.

The Tenth Circuit found that the ALJ did not provide an adequate RFC analysis and to the extent the ALJ intended his statements about credibility to constitute a step-four mental RFC analysis, the conclusions he reached from these statements were not supported by substantial evidence.

Wells also argued substantial evidence was lacking because the ALJ rejected all three medical opinions about her mental impairments, two of which said she had marked or moderate limitations in certain areas. The court held that where the medical opinions conflicted with the ALJ’s decision so seriously, it may have been inappropriate for the ALJ to reach an RFC determination without expert medical assistance.

The court remanded for further proceedings concerning the effect of Wells’s mental impairments on her RFC and further analysis at steps four and five. It also directed the ALJ to carefully reconsider whether to adopt the restrictions on Wells’s mental RFC detailed in the medical opinions contained in the file, or whether further medical evidence was needed on this issue. The court also directed the ALJ to re-evaluate Wells’s alleged limitations on reaching and handling. The court rejected several other arguments.

Tenth Circuit: Unpublished Opinions, 8/27/13

On Tuesday, August 27, 2013, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Ash-Shahid v. Roberts

Duran v. Bravo

Sa’ra v. Raemisch

Ponis v. Hartley

Stevenson v. Timme

December v. Utah Department of Corrections

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

Tenth Circuit: Failure to Disclose Pending Lawsuit to Bankruptcy Court Resulted in Dismissal of Suit Due to Judicial Estoppel

The Tenth Circuit Court of Appeals published its opinion in Queen v. TA Operating, LLC on Tuesday, August 20, 2013.

Plaintiffs Richard and Susan Queen (“Queens”) sued Defendant TA Operating, LLC (“TA”) in federal district court in Wyoming (“District Court Action”). They brought various claims against TA based on an injury Mr. Queen sustained when he slipped and fell in a parking lot operated by TA. During the course of the District Court Action, the Queens filed for Chapter 7 bankruptcy in California (“Bankruptcy Action”), but did not disclose the District Court Action in their bankruptcy filings. When TA discovered this failure, TA brought it to the attention of the trustee for the Bankruptcy Action (“Trustee”). The Queens subsequently amended their bankruptcy filings to include the District Court Action, but they provided an estimate of its value that was far below what they had indicated in the proceedings before the Wyoming district court, and they claimed that the lawsuit was entirely exempt. Subsequently, the Queens were granted a no-asset discharge in bankruptcy.

The district court granted summary judgment in favor of TA based on the doctrine of judicial estoppel because the Queens had not disclosed the lawsuit in their bankruptcy proceedings.

Because the Queens adopted an inconsistent position that was accepted by the bankruptcy court, and because the Queens would receive an unfair advantage if not estopped from pursuing the District Court Action, the Tenth Circuit held that it was not an abuse of discretion for the court to apply the doctrine of judicial estoppel and grant summary judgment in favor of TA. The court also rejected the Queens’ arguments of mistake and inadvertence, because the record showed that the Queens had knowledge of the claim and a motive to conceal it in their bankruptcy proceedings. The court affirmed the grant of summary judgment to TA.

Tenth Circuit: Whether a Note is a Security in Securities Fraud case is for Jury to Decide

The Tenth Circuit Court of Appeals published its opinion in United States v. McKye on Tuesday, August 20, 2013.

Defendant-Appellant, Brian William McKye, was charged with eight counts of securities fraud, in violation of 15 U.S.C. § 78j(b), and one count of conspiracy to commit money laundering. At trial, McKye tendered an instruction that would have permitted the jury to decide whether the investment notes at issue were securities under the federal securities laws. The district court refused to give McKye’s instruction, instead instructing the jury that the “term ‘security’ includes a note.” The jury convicted McKye on the conspiracy charge and seven of the fraud charges.

McKye argued the jury instruction was an incorrect statement of law because not all notes are securities, according to Supreme Court precedent holding notes are only presumed to be securities. Certain notes are not securities and a note “bearing a family resemblance” to those notes are also not securities. McKye also argued the jury should have decided whether the notes were securities, not the judge.

The Tenth Circuit held that “because the question of whether a note is a security is a mixed question of fact and law and because this jury was instructed that the Government was required to prove the instruments issued by Global West were securities as an element of its case, the district court erred when it instructed the jury that notes are securities.” The court found that the error was not harmless and reversed McKye’s conviction.