July 22, 2019

Archives for September 24, 2014

Killing Them Softly (Part Two): What Stress Does to the Brain

rhodesStress in the law is a given. We know that from personal experience, but if we need more authority on the point, we needn’t look further than the 2013 Colorado Lawyer Satisfaction and Salary Survey, which reported that 94% of respondents said the law is stressful sometimes (48%), often (37%), or always (9%).

Brain scientist John Medina describes the impact of long-term chronic stress on the brain in his book Brain Rules:

Stress hormones can do some truly nasty things to your brain if boatloads of the stuff are given free access to your central nervous system. That’s what’s going on when you experience chronic stress. Stress hormones seem to have a particular liking for cells in the hippocampus, and that’s problem, because the hippocampus is deeply involved in many aspects of human learning. Stress hormones can make cells in the hippocampus more vulnerable to other stresses. Stress hormones can disconnect neural networks, the webbing of brain cells that act like a safety deposit vault, storing your most precious memories. They can stop the hippocampus from giving birth to brand new baby neurons. Under extreme conditions, stress hormones can even kill hippocampus cells. Quite literally, severe stress can cause brain damage in the very tissues most likely to help your children pass their SATs.

The problem begins when too many stress hormones hang around in the brain too long, a situation you find in chronic stress, especially of the learned helplessness variety. . . . Like a fortress overrun by invaders, enough stress hormones will overwhelm the brain’s natural defenses and wreak their havoc. In sufficient quantities, stress hormones are fully capable of turning off the gene that makes [counter-stress hormones] in hippocampus cells. You read that right: Not only can they overwhelm our defenses, they can actually turn them off. The damaging effects can be long-lasting, a fact clearly observed when people experience catastrophic stress.

“Clearly, stress hurts learning,” Prof. Medina concludes. “Most important, however, stress hurts people.”

Some of the people stress hurts are law students and lawyers. Prof. Austin’s Killing Them Softly article talks about the specific stresses of law school:

The stresses of attending law school are legendary. After peppering seventy-five first year law students with questions about their experiences in their 1L year at the University of Memphis law school, Andrew J. McClurg asked students about their dominant feeling at the end of the year. The answers were disproportionately focused on anxiety and stress. Students reported grave concerns over upcoming finals, grades, and failing law school. They described suffering from “sheer, unrelenting exhaustion” and a “level of mental exhaustion I did not know existed.”

Four of the six universally recognized emotions are negative: fear, anger, sadness, and disgust. Stress involves some combination of these adverse emotions. Stress, a concept borrowed from engineering, “can be defined as the amount of resistance a material offers to being reshaped and reformed.” If too great a load is placed on the beam supporting a structure or the law student trying to learn the law, it/he is damaged or collapses.

When stress persists for a few hours or days, a law student may experience a bad mood. Longer-term stress can cause stress-related disorders such as panic attacks, anxiety, or depression; the physical effects include increased blood pressure, heart palpitations, breathlessness, dizziness, irritability, chest pain, abdominal discomfort, sweating, chills, or increased muscle tension. These symptoms are caused by the stress response originating in the emotional brain.

Next time, we’ll talk more about how stress hurts the people who study and practice law.

Rhodes has been a lawyer for nearly 30 years, in firms large and small, and in solo practice. Years ago he left his law practice to start a creative venture, and his reflections on that topic appeared in an article in the August 2014 issue of The Colorado Lawyer. His ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures and lessons learned about personal growth and transformation, which are the foundation of much of what he writes about here. If you enjoy reading this blog and would like to contribute a blurb to Kevin’s upcoming collection of these posts, please email Kevin at kevin@rhodeslaw.com.

Tenth Circuit: Unpublished Opinions, 9/24/2014

On Wednesday, September 24, 2014, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Herget

Rudnick v. Falk

Benton v. Town of South Fork

Moreno v. Taos County Board of Commissioners

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

Colorado Attorney General Debate to be Held at CBA-CLE Offices


The Colorado Bar Association, Colorado Women’s Bar Association, Asian Pacific American Bar Association of Colorado, Colorado Gay Lesbian Bisexual & Transgender Bar Association, Colorado Hispanic Bar Association, and Sam Cary Bar Association will host a debate between the three Colorado Attorney General candidates on October 6, 2014, from 4:30 pm to 5:45 pm at the CBA-CLE offices. Vying for the open seat are Republican Cynthia Coffman, Democrat Don Quick, and Libertarian David Williams.

One CLE credit has been applied for, and there will be a webcast of the debate. To RSVP for this event, email execdir@cwba.org. Be sure to specify if you will attend the live debate or the webcast.

C.R.C.P. 26 and 121 Amended Regarding Privilege Claims in Discovery and Motions to Reconsider

The Colorado Supreme Court released Rule Change 2014(11) on Monday, September 22, 2014. Rule Change 2014(11) creates a new subparagraph (B) in C.R.C.P. 26(b)(5), which addresses claims of privilege for information inadvertently disclosed during discovery, as follows:

(B) If information produced in disclosures or discovery is subject to a claim of privilege or of protection as trial-preparation material, the party making the claim may notify any party that received the information of the claim and the basis for it. After being notified, a party must not review, use or disclose the information until the claim is resolved; must take reasonable steps to retrieve the information if the party disclosed it before being notified; and shall give notice to the party making the claim within 14 days if it contests the claim. If the claim is not contested within the 14-day period, or is timely contested but resolved in favor of the party claiming privilege or protection of trial-preparation material, then the receiving party must also promptly return, sequester, or destroy the specified information and any copies that the receiving party has. If the claim is contested, the party making the claim shall within 14 days after receiving such notice present the information to the court under seal for a determination of the claim, or the claim is waived. The producing party must preserve the information until the claim is resolved, and bears the burden of proving the basis of the claim and that the claim was not waived. All notices under this rule shall be in writing.

Rule Change 2014(11) changed C.R.C.P. 121, § 1-15, to add a new subparagraph 11:

11. Motions to Reconsider. Motions to reconsider interlocutory orders of the court, meaning motions to reconsider other than those governed by C.R.C.P. 59 or 60, are disfavored. A party moving to reconsider must show more than a disagreement with the court’s decision. Such a motion must allege a manifest error of fact or law that clearly mandates a different result or other circumstance resulting in manifest injustice. The motion shall be filed within 14 days from the date of the order, unless the party seeking reconsideration shows good cause for not filing within that time. Good cause for not filing within 14 days from the date of the order includes newly available material evidence and an intervening change in the governing legal standard. The court may deny the motion before receiving a responsive brief under paragraph 1(b) of this standard

The committee comment to Rule 121, § 1-15, was amended as well to clarify the limits of subparagraph 11.

Rule 411, “Appeals,” was amended to allow the clerk to certify records.

For the full text of the rule change, click here. For all of the Colorado Supreme Court’s rule changes, click here.

CJD 08-02 Amended Regarding Cost Recovery Fees for Electronic Access to Court Records

On September 11, 2014, the Colorado Supreme Court amended CJD 08-02, “Directive Concerning Assessment of Cost Recovery Fees for Maintaining the Technical Infrastructure Necessary to Support Electronic Access to Court Records.” The changes to CJD 08-02 are effective October 1, 2014.

The changes to CJD 08-02 affect criminal e-filing fees and e-service fees. The changes were made in preparation for the launch of the pilot criminal e-filing system in Pueblo on October 6, 2014.

For the full text of CJD 08-02, click here. For all the Chief Justice Dirctives, click here.

Tenth Circuit: No Fourth Amendment Violation in Search of Abandoned Bag

The Tenth Circuit Court of Appeals issued its opinion in United States v. Tubens on Tuesday, September 2, 2014.

Peter Tubens was on a Greyhound bus in Utah en route to Philadelphia when Utah Highway Patrol officers and their drug-sniffing dogs stopped the bus during a routine drug interdiction activity. Both dogs alerted to one bag in the luggage compartment marked as Tubens’. One officer entered the bus and asked for Mr. Tubens in a loud, clear voice, but Tubens did not respond. After checking all the passengers’ tickets, the police located Tubens and questioned him. Because of his suspicious behavior and knowledge that drug traffickers tend to move drugs between their checked bags and carry-ons, the officers asked to search Tubens’ carry-ons. Tubens said he did not have any, but another passenger said Tubens had been putting a bag in the carry-on area. Officers found a paper bag and CD case on Tubens’ seat, neither of which contained drugs. The officers, by this time quite suspicious of Tubens, asked everyone on the bus to claim their carry-ons, after which there was one bag remaining. The officer asked in a loud, clear voice if the bag belonged to anyone, but no one claimed it. They asked Tubens if the bag was his and he denied ownership. They proceeded to search the bag and found two cylinders containing meth as well as two prescriptions belonging to Tubens. He was charged with possession of methamphetamine with intent to distribute and sentenced to 240 months’ imprisonment. Tubens appealed, arguing that the evidence obtained by searching the bag should be suppressed because it was obtained in violation of the Fourth Amendment.

The Tenth Circuit disagreed. The officers’ initial stop and dog sniff was a lawful investigation, and no justification was needed. Even assuming the officers’ search required reasonable suspicion, they had ample reason to be suspicious of Tubens, given the dogs’ positive reactions to the bag and Tubens’ evasive behavior. No Fourth Amendment violation precipitated Tubens’ abandonment of his bag. And, because Tubens unequivocally proclaimed the abandoned bag was not his, he lacked standing to challenge its search. The district court’s judgment was affirmed.

Tenth Circuit: Unpublished Opinions, 9/23/2014

On Tuesday, September 23, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Chen v. Holder

United States v. Gilchrist

United States v. Lake

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