February 17, 2019

Archives for May 21, 2014

Enlightenment Made Simple (Part One)

rhodesNirvana, bliss, paradise, enlightenment… what would that be for you? Yes, you. And not on some ethereal plane, but in the life you actually have, right here, right now. Better yet, what would it be like if your career and life as a lawyer was enlightened?

I watched a group of 30 North Dakota lawyers answer that question for themselves earlier this week. (Well, not exactly that question, but a series of questions that got to the same point.) They wanted less stress, more peace, more freedom and autonomy, more meaning, satisfaction, fulfillment, purpose. If that’s not enlightenment, it’ll do until the real thing comes along.

I did the same workshop for a group of non-lawyers last Saturday, and the responses were the same. They’re always the same, no matter the audience. We all want these things, but few of us feel we have them.

Does that mean enlightenment is unattainable? I don’t think so. These are universal desires; why would we all keep wanting what we can’t have? Surely evolution would have knocked this foolishness out of us long ago.

Assuming it’s possible, how do we get there? It’s simple, really: learn to live on the other side of ego. Here’s the Einstein version:

“The true value of a human being can be found in the degree to which he has attained liberation from the self.”

Or if you prefer a more enigmatic quote from a more spiritual source:

“Enlightenment is ego’s ultimate disappointment.”
Chögyam Trungpa, Tibetan Buddhist, Founder of Naropa University

By ego, I mean the dynamic organizing principle that gives our lives psychic shape and physical expression. Psychologists tell us ego is fully formed by age 4; after that, it acts like a gravitational center, drawing our experiences into orbit around itself, defining for us what’s normal and what’s not, what’s safe and possible and predictable and what isn’t. Ego gives us our sense of self, creates boundaries that differentiate us from others, lays down our foundational beliefs and habitual behaviors. It creates and sustains who we are, what we do, and what we have. Ego accounts for how we make decisions, our likes and dislikes, our areas of competence and ignorance. And a whole lot more.

We need all that to survive in a scary world. Until we don’t anymore, and we realize that, for all its usefulness, ego hasn’t given us what we really want – freedom, fulfillment, and all the rest. That’s when it’s time to learn to remove ego as the gravitational center of our lives.

Simple? Yes. Easy? No – not because it’s complicated, but because we don’t know how to get there from here.

We can learn. Honest. But before we start, it’s good to heed some practical advice:

“The road to enlightenment is long and difficult, and you should try not to forget snacks and magazines.”
-Anne Lamott, Traveling Mercies: Some Thoughts on Faith

More next time.

Kevin Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. He has also been in and out of the practice more times than anyone can count, and his reflections on that topic will appear in an upcoming article in The Colorado Lawyer. He also plans to publish a book on that topic later this year. He’s a certified mentor with the Colorado Attorney Mentoring Program, offers career and performance coaching, and leads workshops for a variety of audiences, including University of Denver Law School, the CBA’s Solo and Small Firm Section, and the CBA’s Job Search and Career Transitions Support Group. You can email Kevin at kevin@rhodeslaw.com.

Tenth Circuit: No Evidence that Physician’s Performance Fell Below Accepted Standard of Care

The Tenth Circuit Court of Appeals issued its opinion in Gallardo v. United States on Monday, May 19, 2014.

Ms. Gallardo brought suit against the United States under the Federal Tort Claims Act, alleging that the performance of her obstetrician, Dr. McCutcheon, fell below the standard of care during the delivery of her daughter, D.R.G., who was born with cerebral palsy.

In February 2007, Ms. Gallardo went to Memorial Hospital in Colorado Springs after complaining of reduced fetal movement and was evaluated with an electronic fetal monitor (EFM). Dr. McCutcheon, clinical director of the federally-operated Women’s Care Center at Peak Vista Community Health Center, admitted her and induced labor. The EFM readouts were used by Dr. McCutcheon to evaluate the health of the baby and determine continued course of treatment. These EFM readouts were “non-reassuring,” indicating potential fetal distress, but Ms. Gallardo ultimately delivered the baby vaginally. Ms. Gallardo asserted that Dr. McCutcheon’s actions during the labor and delivery fell below the applicable standard of care. She exhausted all administrative remedies against the Department of Health and Human Services and filed suit against the United States. The case was tried in the district court and ultimately decided in favor of the United States. Ms. Gallardo timely appealed to the Tenth Circuit on several points of error.

Ms. Gallardo asserted that the district court applied the wrong standard of care when determining that Dr. McCutcheon’s decisions were reasonable, and that the court disregarded the opinions of her two medical expert witnesses in finding for Dr. McCutcheon. However, the testimony of the four physicians described a widely variable standard of care for situations like Ms. Gallardo’s, and the district court not only relied on physician testimony but also relied heavily on guidelines issued by the American College of Obstetrics and Gynecology. Ms. Gallardo also asserted that the district court did not give enough significance to the EFM readouts, but for this claim too the district court relied on both expert testimony and the guidelines in forming its opinion.

Ms. Gallardo also argued that the district court failed to address the most significant criticisms of Dr. McCutcheon, but the record refutes her claims. Finally, Ms. Gallardo argued that the district court erred in allowing testimony regarding nomenclature adopted subsequent to D.R.G.’s birth. However, this testimony was not used in determining Dr. McCutcheon’s effectiveness, but rather to clarify language used by obstetricians regarding EFM strips.

The district court’s judgment was affirmed on all counts.

Tenth Circuit: Willful Underemployment Not Defense to Failure to Pay Child Support

The Tenth Circuit Court of Appeals issued its opinion in United States v. Fuller on Tuesday, May 13, 2014.

Fuller is the father of three children raised by Dolores Jones. When Jones and Fuller divorced, Fuller was ordered to pay $347 per month in child support. However, Fuller almost never fulfilled his child support obligation, and eventually was brought to trial in district court under the Child Support Recovery Act for $54,478.36 owed in child support. Fuller moved for acquittal after the government’s case-in-chief and at the close of all evidence, but the court reserved ruling on the motions. Several weeks after the verdict issued, the district court denied both of Fuller’s motions. Fuller appealed the denial of his first motion to acquit on two grounds: (1) the court erred by relying on an unconstitutional statutory presumption of his “ability to pay” child support, and (2) without the presumption, the government’s evidence was insufficient to prove that he “willfully” failed to pay.

The Tenth Circuit evaluated the district court’s denial and determined that the court did not rely on the presumption of Fuller’s “ability to pay.” Indeed, the district court noted that his income was insufficient to pay the child support obligation, but this was due to Fuller’s willful underemployment. Both of Fuller’s arguments failed and the Tenth Circuit affirmed the judgment of the district court.

Tenth Circuit: Ambiguities in Contract Preclude Summary Judgment

The Tenth Circuit Court of Appeals issued its opinion in Higby Crane Service, LLC v. National Helium, LLC on Tuesday, May 13, 2014.

Higby Crane Service entered into a contract with DCP Midstream, LLC to provide crane services at a gas processing plant of DCP’s wholly owned subsidiary, National Helium. The contract provided that Higby must maintain a commercial general liability (CGL) insurance policy throughout the term of the contract with DCP as an additional insured. In April 2008, a fire started at National Helium that severely damaged Higby’s crane, requiring more than $250,000 worth of repairs. National Interstate Insurance Co. (National) had issued Higby a commercial inland marine policy covering direct loss to certain property. National paid Higby under the policy, then National and Higby sued DCP for the loss. DCP counterclaimed for breach of contract due to Higby’s failure to obtain a CGL policy that could have indemnified DCP and asserted that Higby should bear the loss for damage to its crane. The district court granted summary judgment for plaintiffs National and Higby, and DCP appealed to the Tenth Circuit.

The Tenth Circuit reversed and remanded for additional proceedings to determine whether a CGL policy would have protected DCP from liability. The parties agreed the case should be decided under Colorado law, which provides that summary judgment on a contract dispute is inappropriate if the contract language is ambiguous. The Tenth Circuit determined that the contract was ambiguous as to what specific coverage would have been required under the CGL. The coverage may or may not have indemnified DCP. Because of this ambiguity, the grant of summary judgment was reversed and the case was remanded to the district court.

Tenth Circuit: Unpublished Opinions, 5/21/2014

On Wednesday, May 21, 2014, the Tenth Circuit Court of Appeals issued no published opinion and eleven unpublished opinions.

Buhl v. Berkebile

United States v. Smith

Akers v. Colvin

Crownhart v. May

Brecheen v. Lofaro

O’Neil v. The Burton Group

United States v. Bustamente-Bustamente

In re Central States Mechanical, Inc.

Smith v. Colorado Department of Labor

Carbajal v. Warner

Perkins v. Department of the Air Force

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

Lawyers Have Hearts, Don’t They? Of Course They Do! Keep Yours Healthy —Thursday, May 29

DrBooneOn Thursday, May 29, 2014, Dr. Jeff Boone will speak at the CBA-CLE offices on the effects of mental stress on heart health. Dr. Boone is an internationally recognized expert on the effects of mental stress on the heart. Through his work with high-intensity groups such as NFL executives, firefighters, military leadership, and oil executives, Dr. Boone has developed protocols to first identify those who are vulnerable during times of increased mental stress, then treat them before any event occurs.

In this program, Dr. Boone will present his case that no one should ever have a heart attack. As Dr. Boone speaks, Boone Heart Institute technicians will be putting his preventive concepts into practice. The Carotid IMT test is a painless, ten-minute ultrasound exam that evaluates your risk for heart attack and stroke. The results will give you an Arterial Age score, which shows how old your arteries are compared to your chronological age. We want to make sure your cardiovascular system is not over the hill before you are. Don’t miss this opportunity to take control of your own health in an often confusing and inefficient health care system.

Join the Transitions Committee on Thursday, May 29, from noon to 1:30 p.m. at the CBA-CLE offices. The cost is $15 for CBA members and $25 for non-members and includes lunch. There is an additional $90 charge for the Carotid IMT screening; please indicate at registration if you are interested in this screening. Click here to register online and learn more about this program.

Colorado Supreme Court: Scope of Search Defined by Warrant, Not by Reasonable Expectation of Privacy

The Colorado Supreme Court issued its opinion in People v. Webb on Monday, May 19, 2014.

Search Pursuant to Warrant.

In this case, the Supreme Court considered whether the search of a purse is within the scope of a search warrant. The police searched Webb’s purse when they executed a search warrant for her house, which they had obtained after identifying indicia that Webb’s adult son, A.W., was using methamphetamine in the house.

The Court held that because the purse was found in a room to which A.W. had access, and because the purse was a container in which A.W. reasonably could have hidden contraband, the search of Webb’s purse was within the scope of the search warrant. The Court therefore reversed the trial court’s order suppressing the evidence that the police found in Webb’s purse and remanded the case to that court for proceedings consistent with this opinion.

Summary and full case available here.

Colorado Supreme Court: Untimely Petition for Review Should Be Dismissed for Lack of Subject Matter Jurisdiction

The Colorado Supreme Court issued its opinion in Board of County Commissioners of the County of Teller v. City of Woodland Park on Monday, May 19, 2014.

Municipal Annexation Act of 1965—Filing a Motion for Reconsideration Within Ten Days of the Effective Date of the Annexation Ordinance is a Precondition to Obtaining Judicial Review—CRS § 31-12-116(2)(a)(II).

The Supreme Court held that the district court does not have jurisdiction to review Teller County’s petition for judicial review of an annexation by the City of Woodland Park (City) under CRS §31-12-116. CRS § 31-12-116(2)(a)(II) requires a party to file a motion for reconsideration with the governing body of the annexing municipality within ten days of the effective date of an annexation ordinance as a precondition for obtaining judicial review of a municipal annexation. The petition for reconsideration with the City should have been filed by September 16, 2013, but was not filed until September 20, 2013.

Summary and full case available here.

Tenth Circuit: No Conflict Between Exempting Certain Conduct from Criminal Liability and Using that Conduct to Enhance Sentence

The Tenth Circuit Court of Appeals issued its opinion in United States v. Hoyle on Tuesday, May 13, 2014.

Defendant Hoyle appealed from the remand proceedings of his prior appeal (see United States v. Hoyle, 697 F.3d 1158 (10th Cir. 2012), affirming Hoyle’s conviction but remanding for resentencing). Hoyle appealed again, challenging the district court’s denial of his motion for a new trial on remand and consideration of prior state convictions at resentencing. Hoyle’s conviction stemmed from an incident where he pointed a gun at a woman, Ms. Hall, and threatened to shoot. Ms. Hall called 911, and Hoyle was subsequently arrested and charged with being a felon in possession of a firearm. On appeal, the Tenth Circuit determined that Hoyle’s two felony convictions from 1994 did not qualify as predicate convictions for purposes of the Armed Career Criminal Act because his civil rights had been restored under Kansas law. The Tenth Circuit accordingly remanded for resentencing. In preparation for resentencing, the probation officer prepared a presentence investigation report (PSR) and took into account the two prior felony convictions in order to arrive at a base level and criminal history category. Hoyle objected, arguing that because his civil rights had been restored, his prior criminal activity could not be used to arrive at his base level or criminal history category. The district court adopted the PSR and sentenced Hoyle to 120 months’ imprisonment followed by three years’ supervised release.

Hoyle appealed the use of the prior convictions in calculating his sentence to the Tenth Circuit and also asserted two new points of error: he claimed that the district court erred by denying him a new trial due to Brady violations and by finding that he possessed the weapon in connection with the Kansas felony “criminal threat.” The Tenth Circuit rejected Hoyle’s assertions of Brady violations and determined that the district court properly denied Hoyle’s motion for a new trial. As to Hoyle’s argument that the prior convictions could not be used in calculating his sentence under the Sentencing Guidelines, the Tenth Circuit disagreed, noting that “Unless Congress has specifically directed otherwise, there is no conflict between exempting certain conduct from criminal liability under a statute and not exempting that same conduct from sentencing consideration,” because the provisions serve different purposes. Finally, the Tenth Circuit found that there was sufficient evidence to support the four-level offense increase for possession of the weapon in connection with felony criminal threat. Hoyle contended that Ms. Hall’s testimony was not credible because she had a prior misdemeanor conviction; however, the district court found that Ms. Hall’s prior conviction did not undermine her credibility. The Tenth Circuit affirmed the district court.

Tenth Circuit: Officer Safety Concerns Enough to Justify Pat-Down of Previous Offender in Remote Area

The Tenth Circuit Court of Appeals issued its opinion in United States v. Garcia on Monday, May 12, 2014.

Garcia was a passenger in a vehicle with a cracked windshield. Officer Devos pulled the vehicle over for safety concerns and subsequently arrested the driver. Officer Devos decided to impound the vehicle, since the cracked windshield made it dangerous and defective, and asked Garcia to exit. Officer Devos knew Garcia from an incident two weeks prior to the traffic stop, where Garcia had run from an attempted arrest by Officer Devos and tried to fight the officer. Garcia was unarmed but was tasered by Officer Devos at that time. Because Officer Devos was familiar with Garcia and knew of his prior criminal history, he decided to pat Garcia down and found an ammunition clip. Garcia was arrested for being a felon in possession of ammunition and sentenced to 30 months’ imprisonment.

Garcia moved to suppress the evidence found during the pat down, arguing the initial stop was not based on reasonable suspicion of a traffic offense and Officer Devos did not have reasonable suspicion that Garcia was armed and dangerous. The district court analyzed the evidence and found several factors to support Officer Devos’ pat-down. Garcia appealed the denial of his motion to suppress, but the Tenth Circuit affirmed the district court. The Tenth Circuit noted that even when an officer had limited specific information that an individual was “armed and dangerous,” it has held that an officer’s safety concern is enough to support the pat-down. The reasonable suspicion analysis need not consider each of an officer’s actions in isolation but rather must consider the totality of the circumstances. The Tenth Circuit noted that Officer Devos’ recent encounter with Garcia was enough to raise officer safety concerns, even without an expectation that Garcia was armed at the traffic stop. The remoteness of the location of the traffic stop, combined with knowledge of Garcia’s behavior toward Officer Devos, was also sufficient to raise officer safety concerns. The other factors also supported the stop and pat-down, and the district court’s judgment was affirmed.

Tenth Circuit: Unpublished Opinions, 5/20/2014

On Tuesday, May 20, 2014, the Tenth Circuit Court of Appeals issued one published opinion and six unpublished opinions.

Tellez v. City of Belen

Ball v. Mayfield

Sawyer v. Sullivan

United States v. Garcia

United States v. Douglas

United States v. Ngo

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