June 25, 2019

Archives for October 1, 2014

Killing Them Softly (Part Three): What Stress Does to People

rhodesI’ve been quoting extensively in this series from DU Law professor Debra Austin’s “Killing Them Softly” article and neuroscientist John Medina’s Brain Rules book. Let’s hear more from both of them about what stress does to the people in the law profession.

Prof. Austin describes the impact of stress on cognition as follows:

The impact of stress on law student cognition includes deterioration in memory, concentration, problem-solving, math performance, and language processing. Curiosity is dampened, and creativity is diminished. A paralysis sets in, limiting motivation and the ability to break out of repetitive behavior patterns.

Prof. Medina elaborates:

If the stress is too severe or too prolonged, however, stress begins to harm learning. The influence can be devastating. . . . Stressed people . . . don’t do math very well. They don’t process language very efficiently. They have poorer memories, both short and long forms.

Stressed individuals do not generalize or adapt old pieces of information to new scenarios as well as non-stressed individuals. They can’t concentrate. In almost every way it can be tested, chronic stress hurts our ability to learn.

One study showed that adults with high stress levels performed 50 percent worse on certain cognitive tests than adults with low stress. Specifically, stress hurts declarative memory (things you can declare) and executive function (the type of thinking that involves problem solving).

Stress affects physiological wellbeing. From Prof. Austin:

Long-term elevated levels of glucocorticoids resulting from chronic stress have been associated with the following physical conditions:

  • Impaired immune response;
  • Increased appetite and food cravings;
  • Increased body fat;
  • Increased symptoms of PMS and menopause;
  • Decreased muscle mass;
  • Decreased bone density; and
  • Decreased libido.

Stress also affects psychological wellbeing. Again from Prof. Austin:

Chronic stress also produces the following emotional conditions:

  • Increased mood swings, irritability, and anger;
  • Increased anxiety; and
  • Increased depression.

Of particular concern to the law profession is the nexus between stress and depression. From Prof. Austin:

Law is a cognitive profession, and the legendary stressors in legal education and the practice of law can take a tremendous toll on cognitive capacity. Lawyers suffer from depression at triple the rate of non-lawyers.

Again, Prof. Medina elaborates:

[Depression] is a disease every bit as organic as diabetes, and often deadlier. Chronic exposure to stress can lead you to depression’s doorstep, then push you through.

[D]epression hobbles the brain’s natural improvisatory instincts the way arthritis hobbles a dancer. Fluid intelligence, problem-solving abilities (including quantitative reasoning), and memory formation are deeply affected by depression. The result is an erosion of innovation and creativity, just as biochemically real as if we were talking about joints and muscles.

Depression is a deregulation of thought processes, including memory, language, quantitative thinking, fluid intelligence, and spatial perception.

Depression not only impairs us in these ways, it creates a perception that things will never get better. From Prof. Medina:

This list [of depression’s effects] is long and familiar. But one of the hallmarks may not be as familiar, unless you are in depression. Many people who feel depressed also feel there is no way out of their depression. They feel life’s shocks are permanent and things will never get better. Even when there is a way out — treatment is often very successful — there is no perception of it. They can no more argue their way out of depression than they could argue their way out of a heart attack.

To be continued.

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: Threatening Intent Required for Conviction Under Interstate Threat Statute

The Tenth Circuit Court of Appeals issued its opinion in United States v. Heineman on Monday, September 15, 2014.

Defendant Aaron Heineman, a white supremacist, sent three emails to a professor at the University of Utah in 2010 and 2011. The third email was a poem that made the professor fear for his safety and that of his family. The professor contacted law enforcement, who traced the email to Heineman. When officers contacted Heineman in writing, he immediately responded, “Is this about the email?” He was charged with one count of sending an interstate threat in the U.S. District Court for the District of Utah. Prior to trial, he requested an instruction that he must have intended his communication to be perceived as a threat in order to be convicted, but his request was denied. He then moved to dismiss the charge, arguing the statute was facially unconstitutional if it did not require proof that he intended the communication to place the hearer in fear of bodily harm or death. The court denied this motion. He reasserted his objections at trial, and the court again rejected them. The court concluded that Defendant had knowingly transmitted a communication that would cause a reasonable person to fear bodily harm or death. Defendant appealed.

The Tenth Circuit reversed the conviction. After a careful analysis of the U.S. Supreme Court’s opinion in Virginia v. Black, 538 U.S. 343 (2003), the Tenth Circuit concluded as an issue of first impression that the defendant must intend the communication to be perceived as a threat, regardless of whether he actually carries out the threat. The Tenth Circuit reversed Defendant’s conviction and remanded for determination of intent.

Tenth Circuit: Unpublished Opinions, 10/1/2014

On Wednesday, October 1, 2014, the Tenth Circuit Court of Appeals issued no published opinion and three unpublished opinions.

United States v. Jenkins

Johnson v. Evans

Brown v. Rios

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

Colorado Court of Appeals: Announcement Sheet, 10/2/2014

On Thursday, October 2, 2014, the Colorado Court of Appeals issued no published opinion and 40 unpublished opinions.

Neither State Judicial nor the Colorado Bar Association provides case summaries for unpublished appellate opinions. The case announcement sheet is available here.

Learned Lawyer: Elisabeth Arenales Receives Colorado Medical Society Award

ArenalesThe Colorado Medical Society bestowed its “Tip of the Spear” award on Elisabeth Arenales at its annual meeting in Vail last week. Arenales is the Health Program Director for the Colorado Center on Law and Policy, where she focuses on public health insurance programs, including Medicaid, and works to preserve, protect, and expand access to healthcare for lower-income Coloradoans. She received the “Tip of the Spear” award for her creation of the Colorado Commission on Affordable Health Care. She had an idea to create a commission to study health care costs without becoming mired in politics. She approached Sen. Irene Aguilar and Sen. Ellen Roberts with her idea, and they helped gather the former members of the Colorado Blue Ribbon Commission on Healthcare Reform to address the issue. Arenales drafted SB 14-187, which passed with bipartisan support and was signed into law by the governor on May 29, 2014.

Arenales has received many awards in her distinguished career, including the Colorado Bar Association’s Donald Hoagland Award in 2000, which recognizes outstanding leaders in the development and implementation of pro bono representation; the CBA Jacob V. Schaetzel Award  in 2005, which honors attorneys or non-attorneys whose commitment, energy, and innovative approaches to the delivery of legal services serve as models for others in the community, for her work on the Taylor Ranch case; and the Colorado Lawyers Committee Award in 2004 for her work representing individuals in cases involving the state’s computer benefits system. Arenales also received the Colorado Health Foundation’s distinguished John K. Iglehart Award for Leadership in Health Policy this summer for her continuing efforts to ensure access to healthcare for lower-income Coloradoans. Other awards include the University of Colorado Law School Alumni Award for Distinguished Achievement, Trial Lawyer of the Year from Trial Lawyers for Public Justice, and the Community Health Leader designation from the Robert Wood Johnson Foundation.

Prior to her work at the Colorado Center on Law and Policy, Arenales was a staff attorney for the Colorado Lawyers Committee, and she worked for a year in the San Luis Valley organizing plaintiffs for the Taylor Ranch litigation. She is the Board Chair of the Colorado Consumer Health Initiative, and is also one of the founders of CCHI. She serves on the advisory committee for Colorado Covering Kids and Families, the advisory board of Medicaid Ombudsmen for Managed Care, and the advisory board of Family Voices Colorado. Arenales received her undergraduate degree, summa cum laude, from the University of Pennsylvania, and her law degree from the University of Colorado School of Law, where she was a member of the Order of the Coif.

Congratulations to Arenales for receiving the Tip of the Spear Award, and for her dedication to helping lower income Coloradoans access health care.

Tenth Circuit: ALJ’s Opinion was Well Reasoned and Considered All Evidence so Reversal Inappropriate

The Tenth Circuit Court of Appeals issued its opinion in Hendron v. Colvin on Friday, September 5, 2014.

Linda Hendron applied for disability benefits three times. The first application, filed in 1999, was denied on the merits. The second application, filed in 2001, was denied on the basis of res judicata. The third application, which is the subject of this appeal, was filed in June 2009, based on a date of disability of November 1, 1995. The agency denied the claim, again based on res judicata, and Ms. Hendron requested a hearing before an administrative law judge (ALJ).

The ALJ held a hearing at which Ms. Hendron testified. The ALJ considered 19 medical exhibits that had not been previously considered. After the hearing, the ALJ issued findings of fact, concluding that Ms. Hendron was not disabled as of the date she was last insured, December 31, 1995. The ALJ found that although Ms. Hendron could not return to her former employment as a nurse, she was capable of the full range of sedentary activities. The Appeals Panel denied review. Ms. Hendron appealed to the district court, which reversed and remanded the ALJ’s decision, concluding that the ALJ failed to cite evidence that Ms. Hendron could perform the full range of sedentary work during the relevant time period. The Commissioner appealed to the Tenth Circuit.

The Tenth Circuit found that the ALJ’s decision was reasonable and that the ALJ considered all the evidence before making a well-reasoned decision on the merits. Ms. Hendron contends that the ALJ’s decision did not support the residual functional capacity determination with a narrative statement addressing each aspect of sedentary work, essentially contesting the form of the ALJ’s decision but not the sufficiency of the evidence. The Tenth Circuit found that the evidence was more than sufficient to support the ALJ’s determination, and reversed the district court’s judgment. The case was remanded for reinstatement of the ALJ’s decision determining Ms. Hendron not to be disabled during the relevant time period.

Tenth Circuit: Writ of Mandamus Inappropriate Absent Clear and Indisputable Injury

The Tenth Circuit Court of Appeals issued its opinion in In re RBS Securities, Inc. on Thursday, September 4, 2014. The panel decided, sua sponte, that its original order dated August 25, 2014, be published with a slight modification.

The National Credit Union Administration Board brought a number of actions against RBS Securities and other defendants in the District of Kansas, the Central District of California, and the Southern District of New York. RBS and the other defendants moved to centralize the litigation in the District of Kansas, but the Judicial Panel on Multidistrict Litigation (JPML) denied the request due to dissimilarities between litigants. However, the JPML offered alternatives to consolidation, including informal cooperation between the attorneys to minimize duplicative discovery. The parties developed a Master Discovery Protocol (MDP) at a joint hearing between the three districts. Judge Cote from New York relayed that she would be the coordination judge for the MDP. RBS objected.

RBS petitioned the Tenth Circuit to strike Section 2 of the MDP, in which Judge Cote was designated the coordination judge, through a mandamus petition. The Tenth Circuit found that mandamus was a drastic remedy which it could not support. Referring to the MDP, the Tenth Circuit noted that the Kansas court required signature of a Kansas judge on all orders, and RBS’s right to mandamus was therefore not clear and indisputable. The motion was denied.

Tenth Circuit: Sentence Outside Guidelines Range Not Subject to Reduction

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

Joseph White was indicted on 16 gun- and drug-related counts. In exchange for White pleading guilty to possession of a firearm in furtherance of a drug trafficking crime, the prosecution agreed to drop the remaining charges, including the drug-trafficking offense underlying his guilty plea. The Presentence Investigation Report recommended the statutory minimum 60 month sentence, but the district court advised the parties via letter that it was considering an upward departure for White’s dismissed charges, including some crack cocaine offenses. Following a hearing, the sentencing court varied upward from the 60 month sentence by 87 months, for a total sentence of 147 months. The Tenth Circuit upheld his sentence on direct appeal.

In 2010, Congress enacted the Fair Sentencing Act, which lowered the Guidelines ranges for crack cocaine offenses. Had the lower sentencing ranges for crack offenses been in place when White was originally sentenced, and had the judge employed the same reasoning he employed in his upward departure, White’s conduct would have merited an upward departure of 37-46 months, rather than 70-87 months. White petitioned the district court to reduce his sentence accordingly, but the district court responded that the FSA’s amendments did not affect his applicable Guidelines range of 60 months. White appealed.

The Tenth Circuit, first admonishing that sentence modifications are to be the exception and not the rule, discussed the authority of a district court to modify a sentence that was imposed outside the Guidelines range. Because only the 60-month sentence was imposed based on the Guidelines range, it was outside the district court’s authority to amend the 87 month upward departure based on the new sentencing rules for crack offenses. The Tenth Circuit upheld the sentence.

Tenth Circuit: Unpublished Opinions, 9/30/2014

On Tuesday, September 30, 2014, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

Liu v. Holder

Lammle v. Ball Aerospace & Technologies Corp.

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