August 24, 2019

Archives for November 7, 2013

Two District Court Judges Appointed in Denver

On Wednesday, November 6, 2013, Governor Hickenlooper announced the appointments of Ross Buchanan and Kandace Gerdes to the Denver District Court. Both appointments are effective December 31, 2013. They will fill two vacancies created by the retirements of Hon. Robert Hyatt and Hon. Anne Mansfield.

Ross Buchanan is currently with Roberts Levin Rosenberg, P.C., in Denver. He practices civil litigation with an emphasis on torts, especially personal injury and insurance. He is a member of the American Board of Trial Advocates, a Fellow of the American College of Trial Lawyers and a Fellow of the International Society of Barristers. Additionally, Mr. Buchanan has been active in various professional associations, primarily the Colorado Trial Lawyers Association, for which he served on the Board of Directors for many years and as its President in 2002-2003.

Kandace Gerdes currently is a Senior Deputy District Attorney with the Second Judicial District. She works in the Economic Crimes Unit, where she specializes in complex economic matters and business. She earned a bachelor’s degree and her J.D. from Creighton University, and her LL.M. in Taxation from the University of Denver.

Charitable Bowling Event “Strikes for Tykes” is Back!

Strikes4TykesThe Community Action Network of the Denver Bar Association is pleased to present the Third Annual Strikes for Tykes bowling event. Strikes for Tykes is an event to raise funds for Children’s Outreach Project, a non-profit, therapeutic preschool and child care center serving north Denver and the surrounding communities. The vision of Children’s Outreach Project is to provide young children of all abilities with excellent early childhood education and affordable care.
This year, Strikes for Tykes will be held at Elitch Lanes in Denver on Saturday, November 16,  with all ages (and skill levels!) invited. Click here to register.
The event proceeds will  provide scholarships for kids in need. It costs $1,085 per month to send a child to Children’s Outreach Project full-time and $575 per month to send a child to Children’s Outreach Project part-time. Scholarships to cover these costs are crucial, as 47% of the enrolled students at Children’s Outreach Project come from low-income families with 32% falling below the poverty line. Please help us fund scholarships to send these kids to school!

Finalists Selected for Judgeship on Nineteenth Judicial District Bench

On Thursday, November 7, 2013, State Judicial announced the selection of finalists for the Nineteenth Judicial District Court bench. The vacancy on the district court bench was created by the retirement of Hon. Dinsmore Tuttle, and will be effective November 30, 2013.

The appointees for the vacancy are Katharina Booth of Erie, Patrick Groom of Greeley, and W. Troy Hause of Windsor. Contact information for the nominees is available on the State Judicial website.

Under the Colorado Constitution, the governor has fifteen days after the selection of finalists to appoint a nominee to the judgeship. If the governor does not appoint any nominee, the Chief Justice will appoint one.

Colorado Court of Appeals: Announcement Sheet, 11/7/13

On Thursday, November 7, 2013, the Colorado Court of Appeals issued six published opinions and nine unpublished opinions.

In re Estate of Gattis

Colorado Community Bank v. Hoffman

BP America Production Co. v. Colorado Department of Revenue

Anderson v. Suthers

People v. Stell

Triple Crown at Observatory Village Association, Inc. v. Village Homes of Colorado

Summaries for these 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.


Tenth Circuit: Unpublished Opinions, 11/6/13

On Wednesday, November 6, 2013, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

Lightfoot v. Principal Life Insurance Company

Morrison v. Cox

Dinse v. Carlisle Foodservice Products Incorporated

Thomas v. Rios

Case summaries are provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.



Curing the Collywobbles — Part 3: Of Course You Can’t!


“What would you do if you couldn’t fail?”

“What would you do if money were no object?”

People sometimes ask those questions to help you tap your dreams. They’re fun to think about, but rarely effective for prompting actual change. Why not? Because there’s no room in our lives for the answers. From where we sit, failure and money are always an issue. We know that, so after a few moments of imagining, we trade our answers for a quick trip back to business as usual.

Has anyone ever told you they’d like to hire a lawyer (maybe you) but probably couldn’t afford it? I’ve had that issue when I’ve hired another lawyer to represent me, or when I’ve hired a consultant or coach for website development or marketing or management help or whatever. Likewise, sometimes lawyers ask me if I do individual or law firm coaching, and before I answer, they interject “but I probably couldn’t afford it.”

What’s with that? Why the instant self-disqualification? It’s for the same reason those two questions above, asked in isolation, aren’t useful for creating sustainable change. The best answer to “I probably can’t afford it” is “Of course you can’t! Your life is organized around not buying that new car or wardrobe, or hiring that professional service, or whatever. You can’t buy it because there’s no room for it!”

In the same way, new ideas don’t fit psychically, emotionally, logistically, or otherwise in your current life. If they did, they’d already be realized in your life. As it is, the mere thought of them throws a monkey wrench into your psychic machinery.

Hence a case of the Collywobbles. Hence your hasty retreat back to life as you already know it.

We’re not talking here about buying new goods and services, and we’re especially NOT talking about the money. This dynamic happens whenever we think about bringing new things into our lives. The price tag always includes emotional, relational, and other components. The quick dismissal is for our own-protection: we know instantly and instinctively that there’s no room in us for all that newness.

If we want to make room for something new, the first place to create it is in our conscious awareness. To do that, we need to reckon with the lack of room in us and our lives for the new, otherwise we’ll say stuck at “Of course I can’t.” Either that, or we’ll push ahead anyway and end up with a case of buyer’s remorse – the product of an overwhelmed psyche. Trying to make changes that way is like trying to stuff one more passenger into an overcrowded car. It’s never convenient, there’s always a lot of groaning and complaining, and everyone’s happy when the ride is over.

Of course it’s possible we’re just hauling around too many passengers already, and somebody’s got to get out to make room for the new person.

More on that another time.

To be continued.

Kevin Rhodes is a lawyer in private practice who coaches and mentors other lawyers to 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

Application Period Open for Vacancy on Denver District Court Bench

On Tuesday, November 5, 2013, the Colorado State Judicial Branch announced a vacancy on the Second Judicial District Court (Denver District Court) bench. This vacancy is occasioned by the appointment of Hon. William Hood, III, to the Colorado Supreme Court, and will occur on January 10, 2014.

The Second Judicial District Nominating Commission will meet on December 16, 2013, to interview and select nominees for appointment. Eligible applicants must be qualified electors of the Second Judicial District and must have been admitted to practice law in Colorado for five years.

Application forms and additional requirements are available on the State Judicial website. Applications must be submitted to the ex officio chair of the nominating commission, Justice Monica Marquez, no later than 4 p.m. on November 26, 2013. Anyone wishing to nominate another person for the vacancy may do so by submitting a letter to any member of the nominating commission with a copy to the ex officio chair no later than 4 p.m. on November 19, 2013.

For more information, click here.

Tenth Circuit: Termination of Employee Did Not Violate Title VII

The Tenth Circuit Court of Appeals published its opinion in Lobato v. State of New Mexico Environment Department on Tuesday, November 5, 2013.

Michael Lobato was a probationary employee at the New Mexico Environmental Department (NMED). His status as a probationary employee meant he could be fired at will and without a right to appeal the decision, so long as the department’s reasons were provided in writing. Before completing his probationary period, Lobato was fired. In a letter explaining its decision, NMED cited Lobato’s dishonesty, failure to cooperate with management, and unprofessional attitude toward coworkers and the public. Lobato, who is Hispanic and of Mexican ancestry, alleged that these proffered rationales were pretextual and that NMED was in fact motivated by racial and national origin prejudice. He also alleged NMED wanted to punish him for whistleblowing. Thus, Lobato claimed, the dismissal violated his rights under Title VII, New Mexico’s civil rights and whistleblower laws, and the First Amendment. The district court granted summary judgment to NMED on all claims, and Lobato appealed.

Title VII prohibits employers from discharging employees on account of race or national origin. It also forbids retaliating against an employee who reports or opposes violations of Title VII. See 42 U.S.C. § 2000e-2(a)(1); id. § 2000e-3(a). The court analyzed this claim using the burden-shifting framework established in McDonnell Douglas Corp. v. Green, 411 U.S. 792 (1973). Under this framework, Lobato had the initial burden of establishing a prima facie case of discrimination, then the burden shifted to NMED to articulate a legitimate, nondiscriminatory reason for the adverse employment decision. If NMED could make such a showing, the burden would shift back to Lobato to show there was a genuine dispute about whether the proffered explanation was pretext for discrimination.

The parties did not dispute the first two steps in the McDonnell Douglas framework. The court’s analysis thus turned on the third step—pretext. Where, as here, an employer advances a number of reasons for an adverse employment action, the Tenth Circuit has adopted a general rule that an employee must proffer evidence that shows each of the employer’s justifications is pretextual. Bryant v. Farmers Ins. Exch., 432 F.3d 1114, 1126 (10th Cir. 2005).

After a thorough review of the facts, the Tenth Circuit held that Lobato failed to raise a genuine dispute that NMED’s decision to terminate him was motivated by anything other than the legitimate, nondiscriminatory reasons NMED offered in its termination letter.


Tenth Circuit: District Court Erred in Manner It Denied Defendants’ Motion to Unseal DEA File

The Tenth Circuit Court of Appeals published its opinion in United States v. Pickard on Tuesday, November 5, 2013.

In 2003, a jury convicted Defendants of several drug offenses. At the trial, one of Defendants’ accomplices, Gordon Skinner, testified against them. Skinner acted as a confidential informant for the DEA during when he was involved with Defendants in their criminal conduct. During the trial, the court ordered the Government to turn that file over to the defense. At the same time, the court ordered the DEA file sealed. Eight years later, Defendants filed a motion to have the DEA file on Skinner unsealed so they could use this information in ongoing litigation under the Freedom of Information Act (FOIA). The district court denied Defendants’ motion to unseal the DEA records. Defendants appealed.

The Tenth Circuit concluded the district court erred in the manner in which it denied Defendants’ motion to unseal the file, for three reasons: The court (1) failed to require the United States to articulate a significant interest in continuing to keep the DEA records sealed; (2) did not apply the presumption that judicial records should be open to the public; and (3) did not consider whether unsealing a redacted version of the DEA records would adequately serve the as yet unarticulated government interest in keeping the records sealed. Courts have long recognized a common-law right of access to judicial records.

For these reasons, the court REVERSED the district court’s decision to deny Defendants’ motion to unseal the records and REMANDED for the district court’s further consideration of that motion.