June 26, 2019

Archives for April 23, 2014

The Practice of Life (Part 4): Getting Your Mojo Back

rhodesCareer mojo gone? Life mojo missing? Want it back?

Getting your mojo back starts with self-awareness: admitting you’re not lighting it up the way you’d like. It’s tempting to shrug off this step, short-change it. Don’t. This series has been quoting from The Happiness Advantage; let’s go to the well once again:

Experiments show that when people are primed to feel high levels of distress, the quickest to recover are those who can identify how they are feeling and put those feelings into words. Brain scans show verbal information almost immediately diminishes the power of those negative emotions, improving well-being and enhancing decision-making skills.

Think about it. Feel it. Write about it. Keeping a journal is not self-indulgent, it’s a great way to discharge negativity, which by definition has an immediate, positive impact.

Next, find something you can control, and tackle it by thinking small:

Once you’ve mastered the self-awareness [step], your next goal should be to identify which aspects of the situation you have control over and which you don’t.

One of the biggest drivers of success is the belief that our behavior matters, that we have control over our future. Yet when our stresses and workloads seem to mount faster than our ability to keep up, feelings of control are often the first things to go, especially when we try to tackle too much at once. If, however, we first concentrate our efforts on small manageable goals, we regain the feeling of control so crucial to performance.

We waste energy on big picture drama when we’re in the doldrums, and end up feeling overwhelmed and indecisive. Thinking small refocuses our energy:

The point is to tease apart the stresses that we have to let go because they’re out of our hands, while at the same time identifying the areas where our efforts will have a real impact, so that we can then focus our energy accordingly.

Once my trainees are armed with a list of what is indeed still within their control, I have them identify one small goal they know they can quickly accomplish. By narrowing their scope of action, and focusing their energy and efforts, the likelihood of success increases.

Lost mojo means lost confidence. Thinking small builds it up again:

Setting smaller, more manageable goals helps us build our confidence and celebrate our forward progress, and keeps us committed to the task at hand.

By first limiting the scope of our efforts, then watching those efforts have the intended effect, we accumulate the resources, knowledge, and confidence to expand the circle, gradually conquering a larger and larger area.

Thinking small also builds momentum:

By tackling one small challenge at a time – a narrow circle that slowly expands outward – we can relearn that our actions do have a direct effect on our outcomes, that we are largely the masters of our own fates. With an increasingly internal locus of control and a greater confidence in our abilities, we can then expand our efforts outward.

Think small – it’s simple, accessible, high-leverage. Quick success creates fresh confidence. Before you know it, you’re ready to tackle the bigger issues. We’ll look at a couple of those starting next time.

To be continued.

Kevin Rhodes is a lawyer in private practice and a registered mentor with the Colorado Supreme Court’s CAMP program. He offers career coaching for lawyers and 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.

Vacancy Announced on Sedgwick County Court in 13th Judicial District

The Colorado State Judicial Branch announced on Monday, April 21, 2014, that there is a vacancy on the Sedgwick County Court to be created by the resignation of Hon. Tawna Holmstedt, who was appointed to that position in February 2014. Her resignation is effective April 30, 2014.

Eligible applicants for the vacancy must be qualified electors of Sedgwick County and must have graduated high school or attained the equivalent of a high school education. The position is a 20 percent position, and the annual salary is $25,499.

Application forms are available on the State Judicial website and from the ex officio chair of the Thirteenth Judicial District Nominating Commission, Justice Gregory Hobbs. Applications must be received by 4 p.m. on Wednesday, May 21, 2014. Anyone wishing to nominate another person must do so by 4 p.m. on May 14, 2014. For more information on the nominating commission and the vacancy, click here.

“Roll Out the Barrels” Food Drive Underway at CBA/DBA Offices

Roll-out-the-barrels

The Denver Bar Association’s Community Action Network (CAN) is hosting its annual Roll Out the Barrels food drive from April 21 through May 2, 2014. All donations benefit Metro CareRing, Denver’s largest hunger-relief organization. Please bring your dry goods to the CBA/DBA offices. The barrel for food donations is located in the lobby.

The top ten most wanted pantry items are hearty soup (meat or vegetarian), canned tuna, canned cooked beans (pinto, black, refried), peanut butter, canned mixed vegetables, canned fruit, canned tomatoes,whole grain pasta, pasta sauce, and whole grain brown rice. No glass or perishable items, please.

If you would prefer to donate online, click here.

Tenth Circuit: Lawsuit Properly Dismissed for Untimeliness, Failure to State a Claim, and Issue Preclusion

The Tenth Circuit Court of Appeals issued its opinion in Knight v. Mooring Capital Fund, LLC on Tuesday, April 22, 2014.

In 2010, the Tenth Circuit decided two appeals involving claims and cross-claims between, on one side, Judy Knight and her company Phoenix Central Inc., and, on the other side, Mooring Capital Fund, LLC. Two years later, Knight filed a new suit in Oklahoma state court on behalf of herself, Phoenix, and another of her companies, Mini Malls of America. The defendants were Capital and Financial and individuals associated with them, including Financial’s Chief Executive Officer, John Jacquemin, and unnamed “Counsels and Agents of Defendants.” Capital, Financial, and Mr. Jacquemin removed the litigation to federal district court, and moved to dismiss with prejudice. Knight responded and filed a first amended complaint that named as additional defendants the law firm and individual lawyers who represented Capital and Financial in the earlier proceedings. Capital, Financial, and Mr. Jacquemin then moved to dismiss the first amended complaint with prejudice, and the court granted the motion, citing claim preclusion, the statute of limitations, and F.R.C.P. 12(b)(6). The next day, Knight filed a motion to remand to state court, which was denied as moot; next, she filed an F.R.C.P. 59 motion to vacate, alter, or amend the district court’s motion, which was also denied; thereafter, she sent an email seeking the district court judge’s recusal. The court ordered the email to be filed and denied the recusal.

The Tenth Circuit affirmed, noting that the removal of the case to federal court was proper, some of Knight’s claims were untimely, others failed to state a claim or were barred by issue preclusion (not claim preclusion), and her request for recusal was untimely.

Tenth Circuit: Unpublished Opinions, 4/23/2014

On Wednesday, April 23, 2014, the Tenth Circuit Court of Appeals issued no published opinions and four unpublished opinions.

Tri-State Truck Insurance, Ltd. v. First National Bank of Wamego

Kimbrell v. Chaves County Clerk

United States v. Gallant

Tatten v. Bank of America Corp.

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 14-1344: Allowing Insurance Companies to Transmit Policy Information Electronically

On March 24, 2014, Rep. Paul Rosenthal and Sen. Lois Tochtrop introduced HB 14-1344 – Concerning the Use of Electronic Means to Document Transactions Related to the Business of InsuranceThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill allows certain notices and other documents related to insurance coverage to be sent electronically to an e-mail address specified by the policyholder if the policyholder consents to receiving the documents electronically. Consent may be withdrawn at any time, reinstating the insurer’s obligation to provide the documents in hard copy form and deliver them personally or by regular mail as the case may be.

The bill also allows standard insurance policies and endorsements to be posted on an insurer’s web site if:

  • They do not contain personally identifiable information;
  • Policyholders are given reliable and current information on how the documents may be accessed; and
  • Access can be obtained using programs or applications that are widely available on the Internet and free to use.

The bill passed out of the House on April 14. It is assigned to the Business, Labor, & Technology Committee.

Since this summary, the bill passed out of the Senate Business, Labor, & Technology Committee unamended and is referred to the Consent Calendar for 2nd Reading.

HB 14-1323: Restricting Access of the Department of Revenue to Personal Medical Information

On March 18, 2014, Rep. Dianne Primavera and Sen. Kevin Lundberg introduced HB 14-1323 – Concerning Restrictions on the Ability of a Government Entity to Access an Individual’s Personal Medical InformationThis summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill prohibits the department of revenue from accessing an individual’s personal medical information or medical record without the individual’s consent. If a department employee authorizes the department, in its role as an employer, to access his or her personal medical information or medical record in connection with an employment-related request, occurrence, or claim, such as a request for a workplace accommodation or for family medical leave, the employee’s consent applies for the duration of the request, occurrence, or claim.

The bill does not preclude the department from accessing an invoice, receipt, or other documentation of a sale of a prescription drug or other item exempt from sales tax as long as:

  • Personal medical information or a medical record is not contained in the documentation; and
  • Any information that identifies or could be used to identify an individual patient or that indicates a patient’s diagnosis or treatment plan is redacted from the documentation.

Additionally, the department is not precluded from obtaining and using a written medical opinion in determining physical or mental fitness to operate a motor vehicle in accordance with procedures authorized by law.

The bill creates the government access to personal medical information task force to review, analyze, and make recommendations regarding the ability of state and local government departments and agencies to access, use, and distribute personal medical information. The governor appoints representatives from impacted state departments and universities and representatives from or of quasi-governmental entities, local governments, health care providers, health plans, mental health care consumers, consumer advocacy groups, consumers with chronic illnesses, consumers with cancer, and patient privacy rights groups to serve on the task force and is to invite the state auditor or his or her designee to participate. The task force is to meet no more than 4 times between July 15, 2014, and November 1, 2014, and is to submit its report and recommendations to specified legislative committees by November 1, 2014. Additionally, the task force is to present its report to the legislative committees during hearings held under the “State Measurements for Accountable, Responsive, and Transparent (SMART) Government Act.”

The bill passed out of the House on April 14. It is assigned to the Senate Health & Human Services Committee.

Colorado Supreme Court News: Pretrial Discovery Process Under Review

Stuart-StullerBy Stuart Stuller

On April 7, 2014, the Colorado Supreme Court agreed to review a case that will be watched closely by the legal community. The issue before the court does not concern how cases are to be decided, nor how cases will be tried, but the authority of a trial court to control the discovery process that precedes trial.

The case, Antero Resources Corp., et al v. Strudley, case no. 13SC576, will address whether the Colorado Rules of Civil Procedure permit trial courts to issue so-called Lone Pine orders that are sometimes used in large and complex personal injury cases often involving environmental contamination where there is some doubt that the plaintiffs can prove contamination and causation.

The case involves claims by a family alleging that nearby natural gas operations contaminated their well water, causing them medical harm. Prior to full-blown discovery, the phase of litigation in which parties demand records, conduct depositions and inspections, and otherwise gather information, the trial court required the family to submit evidence showing that their well was contaminated by pollutants from the defendants’ operations, that scientific research links the alleged contaminants to the maladies suffered by the family, and that the contaminants did cause such harm to the family.

After the family responded, the defendants argued that the materials submitted by the family did not meet the threshold showing required by the court’s order. The court agreed and dismissed the case. The Colorado Court of Appeals reversed, holding that the trial court’s order was inconsistent with the Colorado Rules of Civil Procedure.

Questions related to pretrial discovery are enormously significant within the legal community because the cost of conducting discovery can be substantial. Defendants, such as the companies here, contend that the prospect of large discovery costs is often used as leverage to settle cases that are not meritorious. Conversely, plaintiffs and the Colorado Court of Appeals contend that the ordinary rules of civil procedure are sufficient to prevent such scenarios. Trial courts, charged with managing cases in a manner that protects the integrity of the judicial process, are caught in the middle.

The Colorado Defense Lawyers Association, the Colorado Civil Justice League and the American Petroleum Institute filed amicus curiae (friend of the court) briefs urging the Colorado Supreme Court to review the court of appeals’ decision. Now that the court has agreed to address the issue, organizations on both sides of the issue are expected to participate.

Stuart Stuller focuses on appellate practice, litigation, constitutional law, employment discrimination and education law. He regularly appears before both state and federal appellate courts and has played a substantial role in more than 30 cases that resulted in published decisions. He can be reached at sstuller@celaw.com.

The opinions and views expressed by Featured Bloggers on CBA-CLE Legal Connection do not necessarily represent the opinions and views of the Colorado Bar Association, the Denver Bar Association, or CBA-CLE, and should not be construed as such.

Last Chance to Enter Denver Lawyers’ Arts and Literature Contest!

Art_contestGet ready to ignite your creative spark! The Denver Lawyers’ Arts and Literature Contest is accepting submissions for one more week – through Wednesday, April 30. All Denver Bar Association members are eligible, except for members of the Docket Committee (the judges). Artists may enter previously unpublished work in multiple categories. The subject matter is open to the artists’ choice—no legal content is required!

Writing Category:

Submissions in the writing category should be no more than 1,500 words and can be fiction, non-fiction, poetry, or humor.

Visual Category:

Submissions of visual arts can include photography, paintings, drawings, or sculptures. Digital file submissions are preferred. Images of submissions should be high-resolution quality: 300 dpi at 10” x 12”. Please describe the scale of the work and include several photos when necessary. For photography submissions, please explain how the shot was obtained, as well as any post-production techniques used (i.e., Photoshop). Painting can incorporate watercolors and oil/acrylic/mixed media.

To submit a piece via email, fill out this form, and email Kate Schuster at kschuster@cobar.org. Please include the artist’s name and category in the subject line. To submit a piece by mail, a digital copy must be included, and sent to: The Denver Bar Association ATTN: Kate Schuster, 1900 Grant St., Suite 900, Denver, CO 80203.

Tenth Circuit: No Procedural Error for District Court to Sentence Defendant Based on Federal Sentencing Guidelines

The Tenth Circuit Court of Appeals issued its opinion in United States v. Wiseman on Tuesday, April 21, 2014.

Defendant Tina Patricia Wiseman pled guilty to conspiracy to distribute oxycodone as part of a plea deal where she received two sentence reductions. The guideline range for her sentence was 57-71 months, but she received a sentence of 48 months. Wiseman filed a motion for a downward variance based on the 18 U.S.C. § 3553(a) factors. Wiseman did not contest the guideline range set forth in the PSR, but she argued for a sentence of probation with the opportunity to participate in a rehabilitative drug program. Wiseman urged the court to consider the sentencing disparity between her guideline range and similarly situated state court defendants, arguing repeatedly that the comparison was appropriate because cases like hers are typically prosecuted in state court. The central argument of Wiseman’s appeal was that the district court committed procedural error because it failed to consider § 3553(a)(6) when it stated it did not have authority to consider state-federal disparities. However, the district court analyzed § 3553(a)(6) and determined that a prison sentence was necessary because § 3553(a)(6) applies only when addressing sentencing disparities among and between federal defendants sentenced under the federal sentencing guideline regime.

The Tenth Circuit affirmed the sentence of the district court.

Tenth Circuit: Unpublished Opinions, 4/22/2014

On Tuesday, April 22, 2014, the Tenth Circuit Court of Appeals issued two published opinions and four unpublished opinions.

Livingston v. Sodexo, Inc.

Ash Grove Cement Co. v. United States

United States v. Whitehead

Wanjiku v. Holder

Case summaries are not provided for unpublished opinions. However, published opinions are summarized and provided by Legal Connection.

HB 14-1322: Making Changes to Colorado Probate Code Regarding Control and Distribution of Assets

On March 18, 2014, Rep. Mike McLaughlin and Sen. Ellen Roberts introduced HB 14-1322 – Concerning the Colorado Probate Code. This summary is published here courtesy of the Colorado Bar Association’s e-Legislative Report.

The bill repeals and reenacts, with amendments, certain provisions relating to the elective-share of a surviving spouse.

A specific devisee has a right to specifically devised property in a testator’s estate at death and, in the absence of other statutorily described property and moneys, a general pecuniary devise equal to the value, as of its date of disposition, of other specifically devised property disposed of during the testator’s lifetime, but only to the extent it is established that ademption would be inconsistent with the testator’s manifested plan of distribution or that the testator did not intend ademption of the devise.

To be effective to nominate a personal representative, a will must be declared valid by an order of informal probate by the registrar or by the court.

Under current law, a successor of a decedent may collect from another person any debts owed to the decedent and any personal property belonging to the decedent if the fair market value of the property owned by the decedent at the time of his or her death does not exceed $60,000. Under the bill, this amount may not exceed twice the value of property that the decedent’s surviving spouse is entitled to exempt from the estate, as adjusted for cost of living.

An instrument or other property that is payable or deliverable to a decedent or to the estate of a decedent is considered property of the decedent. A successor of the decedent or a person acting on behalf of a successor may endorse an instrument that is so payable and collect such amount.

The duties owed to a successor by a person acting on behalf of the successor in the making, presentation, or other use of an affidavit to collect personal property of a decedent are the same as the duties of an agent to the agent’s principal. The breach of this duty is subject to the same remedies as are available under the law with respect to an agent.

If a proof of right is established in a proceeding, any person to whom an affidavit was delivered and who refused, without reasonable cause, to pay, deliver, transfer, or issue any personal property or evidence thereof shall be liable for all costs, including reasonable attorneys’ fees and costs, incurred by or on behalf of the persons entitled thereto.

A provision in a trust specifying a method to revoke or amend the trust does not make the specified method exclusive unless the method is referred to as the “sole”, “exclusive”, or “only” method of revoking or amending the trust or the provision includes similar language manifesting the settlor’s intent that the trust may not be revoked or amended by any other method.

The bill sets forth certain duties and powers of trustees and trust advisors.

This bill is CBA sponsored and was developed by the Trusts and Estates Section of the Bar Association.

The bill passed out of the House on April 14. It is assigned to the Judiciary Committee; a committee hearing is scheduled for Wednesday, April 21 at 1:30 p.m.