August 19, 2019

Archives for November 13, 2013

Curing the Collywobbles — Part 4: Doing the Research

rhodesWe get the collywobbles from too much newness. We try to cure them by getting back on familiar, reasonable and rational ground. We do our research, hoping to convince ourselves we’ll be safe out there. Trouble is, there’s research, and then there’s… well, the other kind.

Take observational/anecdotal research, for example. It relies on “common sense,” which ought to be our first clue. Common sense says don’t get carried away, make sure you have a backup plan, and all the rest. Sounds good, but it turns out what passes for common sense isn’t always so sensible. See, e.g., the book Accidental Mind. But it doesn’t take a neurologist to figure that out. We just need to remember that anecdotal research lives and dies on the assumption that all of us have our eyes wide open and can see the way the world actually works. Um, yeah, right, got it.

Then there’s research that finds correlations: factors that co-vary (if one moves, so does the other), so it looks like a relationship exists. Consider for example the Super Bowl Indicator, which says the stock market will be bullish if the winner is a former NFL team, but bearish if it’s a former AFL team. That metric was accurate 90% of the time for the 30 years between 1967 and 1997. Impressive, but would you bet your 401K on it? Maybe not. As one commentator said, “Anyone credulous enough to believe a football game can forecast the stock market probably should hire a money manager, or a psychiatrist, or both.”

Research that shows cause and effect is the best, right? After all, science has been running on that paradigm for a long time. True, but then quantum physics came along and ruined everything by showing how observation changes outcome: i.e., we can find cause and effect just by looking for it. So much for objectivity and reliability.

Besides, cause and effect is especially elusive when what we really want to know is, if we do what we love, will the money really follow? Question: How many success stories do we need before we’ll accept them as convincing data? Answer: One more than we’ve already got.

Then of course there’s legal research: applying the law to the facts, making the best case for one side or the other. We’ve been doing that ever since the very first time a “think like a lawyer” neuron fired in our brains at law school, and by now we’re so good at it, it’s no help at all.

Besides, we’re not actually doing research. What we really want is that hypothetical perfect negotiation outcome, where Life ends up with all the risk and liability, and we get a fully-secured ROI in return. Nice try. Let us know when that starts working for you.

But surely there’s a way to make big change be reasonable, isn’t there? I mean, isn’t there?

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

Tenth Circuit: Pretrial Detainee’s Rights under 14th Amendment Delineated in § 1983 Case

The Tenth Circuit Court of Appeals published its opinion in Blackmon v. Sutton on Friday, November 8, 2013.

When Plaintiff Brandon Blackmon was eleven, he was held at a juvenile detention facility awaiting trial for rape. As an adult, Blackmon brought suit against members of the facility’s staff under 42 U.S.C. § 1983, alleging they violated the Fourteenth Amendment rights guaranteed to him as a pretrial detainee. He claimed the staff frequently used a restraint chair to punish him, used other unlawful punishments, deprived him of essential medical attention, and should have transferred him to another facility. The district court refused to dismiss the case based on qualified immunity and held that the defendants sometimes exceeded the scope of their qualified immunity. The defendants brought this interlocutory appeal.

The Tenth Circuit held that restraining Blackmon to punish him or without a legitimate penological purpose would have violated his clearly established legal rights at the time. Because the case was at the summary judgment stage and the court had to view the facts in the light most favorable to Blackmon, summary judgment was precluded. The court also found Blackmon produced enough facts to suggest a violation of clearly established law by two staff members’ failure to provide him with meaningful mental health care despite his obvious need for it.

Blackmon also asserted a claim against the director of the facility for failing to transfer him to a shelter where he had been housed before. The court found a transfer to the shelter was not necessary to avoid any excessive risk to his health or safety and even if a transfer was necessary, pretrial detainees do not get to choose a particular place of detention.

The court affirmed the district court’s denial of qualified immunity except as to the director. The Tenth Circuit directed the district court to grant qualified immunity to the director.

Colorado Supreme Court: Criminal Code Not Applicable in Juvenile Proceedings Except as Provided in Children’s Code

The Colorado Supreme Court issued its opinion in In re People in Interest of A.A. on Tuesday, November 12, 2013.

Colorado Code of Criminal Procedure—Colorado Children’s Code.

The People petitioned pursuant to CAR 21 for relief from an in limine ruling of the juvenile court allowing the introduction of testimony by the juvenile’s psychological expert without regard for the court-ordered examination mandated by CRS § 16-8-107. The juvenile court reasoned that in the absence of any provision of the Criminal Procedure Code specifying otherwise, the requirements of CRS § 16-8-107 did not apply to delinquency proceedings.

The Supreme Court approved the ruling of the juvenile court and discharged its rule to show cause. Because the Colorado Code of Criminal Procedure expressly provides that it will not apply to proceedings under the Colorado Children’s Code except as specifically set forth in the Criminal Procedure Code itself, and because no provision of the Criminal Procedure Code suggests that § 16-8-107 was intended to apply to proceedings under the Children’s Code, the Court found that the court-ordered examination in question cannot apply to delinquency proceedings.

Summary and full case available here.

Colorado Supreme Court: Trial Court Lacked Authority to Order Return of Funds in Forfeiture Case

The Colorado Supreme Court issued its opinion in People v. $11,200.00 U.S. Currency and Strand on Tuesday, November 12, 2013.

Public Nuisance Statute—Civil Forfeiture Proceedings.

The Supreme Court held that CRS § 16-13-307(1.6) of the public nuisance statute, which is a specialized proceeding governing civil forfeiture actions, provides for the dismissal of a forfeiture claim and the return of seized property only when the underlying criminal charge is dismissed by a trial court. It does not apply where the underlying criminal case is dismissed following a reversal of the related criminal conviction on appeal when a judgment of forfeiture has already entered. Here, defendant sought the return of $11,200 that was forfeited, distributed, and spent by the receiving agencies three-and-a-half years before his criminal conviction was dismissed following reversal by the court of appeals. Because CRS § 16-13-307(1.6) did not apply to this case, where the forfeiture claim had ripened into a forfeiture judgment years before defendant’s criminal conviction was dismissed, the court of appeals’ judgment was reversed.

Summary and full case available here.

Colorado Court of Appeals: Power of Attorney Document Did Not Authorize Agent to Liquidate Principal’s Assets

The Colorado Court of Appeals issued its opinion in People v. Stell on November 7, 2013.

Power of Attorney—Fiduciary Duty—Without Authorization—Theft by Deception.

The People appealed the dismissal of counts one, two, and four, as well as part of count three, of the indictment against defendant Geoffrey Hunt Stell. The Court of Appeals reversed the order and remanded the case with directions.

The victim executed a power of attorney (POA) naming Stell, who is the victim’s son, as his agent. The POA gave Stell broad general powers over the victim’s property. According to the indictment, Stell had liquidated all of the victim’s property for his own personal use. Stell filed a motion to dismiss counts one through four of the indictment, asserting that he had the legal authority to spend, transfer, and liquidate the assets in question pursuant to the POA. The trial court granted the motion.

On appeal, the People contended that the district court erred in concluding, as a matter of law, that the POA authorized Stell to liquidate all of the victim’s assets and to use them for his own benefit. Although the POA provided broad general powers, several provisions of the POA suggest the victim’s intent that Stell would act on the victim’s behalf, as opposed to in his own interest. Therefore, proof of the “without authorization” element of the theft charges at issue should have been given to the jury to decide.

The People further contended that regardless of whether Stell acted without authorization, the district court erred in dismissing count four of the indictment because that count separately alleged theft by deception, and the evidence supports such a charge. Even if Stell was authorized to transfer the victim’s assets to a trust, he still could have committed theft by deception if he fraudulently induced the victim to sign the trust agreement that allowed Stell to facilitate a theft. Therefore, the evidence could potentially have supported such a charge, regardless of any authorization under the POA. Accordingly, the district court erred in dismissing count four.

Summary and full case available here.