August 22, 2019

Archives for October 16, 2014

Killing Them Softly (Part Five): Rethinking the Holy Grail

rhodesThe Holy Grail of legal education has long been teaching law students to “think like a lawyer.” Most of us have a vague sense of what that means and how it’s accomplished, but turns out it’s an actual brain process known to neuroscientists as conditioning. Linda Graham’s book Bouncing Back: Rewiring Your Brain For Maximum Resilience and Well-Being describes conditioning as follows:

Conditioning creates automatic habits of behavior by encoding the neural firing patterns of repeated responses to experience, stabilizing the neural circuitry of that learning, and storing those patterns of response in implicit (unconscious) memory. When you repeat a pattern of behavior often enough, eventually you don’t have to focus your attention on it anymore; the neural circuits underlying that behavior have stabilized in your brain, enabling you to respond to a similar situation automatically.

Creating habits of behavior through conditioning is your brain’s way of being efficient. Without conditioning, you’d have to relearn how to tie your shoes every morning. . . .

[F]ocused attention causes neurons in the brain to fire; focusing on the same object or experience causes repeated neural firings; and repeated neural firings create new and stable neural structure. When we focus our attention on cultivating a particular pattern of behavior, a character trait, or attitude or lens for filtering experience, we incline the mind toward that objective . . . We notice more readily the desired trait or behavior, register it more fully in our consciousness, and direct mental activity toward it,

[W]hen we formulate an intention, . . . the repeated focus on that intention begins to build new brain structure and circuitry that support us. . . . We turn a neural goat path into a freeway.

Thus the Holy Grail is pursued and realized. For three years, we condition law students’ brains, turning their lawyer-like neural goat paths (remember what it was like the first time you read a case or a contract?) into neural freeways (consider how you read them now).

No problem if that’s all that happened, but combine brain conditioning with the brain damage caused by law school stress, and ironically, it appears that too often we accomplish this educational ideal by turning out lawyers who all think in the same brain-damaged way. The Destruction of Young Lawyers describes this outcome as follows:

At the same time that law school breaks students, it also creates them, or rather, molds them in its image. But what does it create? On the positive side it creates people who have good reading and writing skills, who are diligent and hardworking, who can see both sides to an issue. Law students are hard workers, and they are typically very high achievers with above-average intelligence.

But on another level, law school churns out some very scared people. . . . [A]t the same time that [law students] are taught to act empowered, they are truly disempowered. . . . Despite the appearance of professionalism and self-sufficiency, law students are actually helpless and dependent when they graduate.

Thankfully, there is an antidote. Bouncing Back introduces it:

If conditioning is the process that encodes stable patterns in our neural circuitry, neuroplasticity is the mechanism that works to alter them.

As Prof. Austin says in Killing Them Softly:

The modification of neural networks in response to experience, such as legal education, is neuroplasticity.

Neuroplasticity is why some (not all) lawyers’ brains and hearts recover from law school and avoid the impact of law practice stress.

More next time.

Prof. Austin provides another take on this topic with her upcoming law journal article, “Drink Like a Lawyer: The Neuroscience of Substance Use and Its Impact on Cognitive Wellness.” I will provide a link when one is available.

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

Colorado Court of Appeals: Involuntary Medication Administration Necessary to Render Defendant Competent to Stand Trial

The Colorado Court of Appeals issued its opinion in People in Interest of Hardesty on Thursday, October 9, 2014.

Involuntary Administration of Medication to Render Defendant Competent to Stand Trial.

Hardesty was sent to the Colorado Mental Health Institute in Pueblo (CMHIP) after he was found incompetent to proceed in two criminal cases filed against him. While at CMHIP, Hardesty refused to take antipsychotic medications. The People petitioned to have the medications involuntarily administered to render him competent to proceed in the criminal cases. The district court granted the People’s petition following a hearing in which it made a number of findings by clear and convincing evidence.

On appeal, Hardesty argued that the People failed to establish the legal requirements for administration of medications under Sell v. United States, 539 U.S. 166 (2003).The Court of Appeals disagreed.

Under Sell, a court must find the defendant: (1) is facing “serious criminal charges”; (2) the involuntary medication will significantly further the state’s interest in prosecution; (3) administration of the drugs is substantially likely to render the defendant competent to stand trial; (4) administration of the drugs is substantially unlikely to have side effects that will interfere significantly with the defendant’s ability to assist counsel in conducting a trial defense; (5) involuntary medication is necessary to further the identified governmental interests; (6) less intrusive means for administering the drugs must be considered; (7) any alternative, less intrusive treatments are unlikely to achieve substantially the same results; and (8) administration of the drugs is medically appropriate.

Hardesty challenged the first, second, and fifth factors listed above. On the first issue, Hardesty was charged with “[s]hoplifting that resulted in an assault and as a result then [became] a [r]obbery.” The Court held that robbery, as charged here, was a “serious” crime. The Court further concluded that, given the seriousness of the robbery charge, the government had a significant interest in restoring Hardesty to competency so that he could be tried.

Hardesty also argued that no evidence was presented to prove that ordering involuntary medication was necessary to further the state’s interest in prosecution. The lower court found by clear and convincing evidence that Hardesty was unlikely to be restored to competency without the medications. This finding was not clearly erroneous. The order was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Statutory Employer Has Standing to Contest Lapse in Insurance Coverage

The Colorado Court of Appeals issued its opinion in Hoff v. Industrial Claim Appeals Office on Thursday, October 9, 2014.

Workers’ Compensation—Standing—Notice of Cancellation Provision—Estoppel.

Hoff owns a house that she uses as a rental property. After the house sustained hail damage to the roof, Hoff and her husband engaged Alliance Construction (Alliance) to negotiate with their insurance company to resolve their damage claim. A successful resolution was reached, and Hoff contracted with Alliance to repair the roof. Without Hoff’s knowledge, Alliance verbally subcontracted the roofing job to MDR Roofing, Inc. (MDR). Claimant was employed by MDR as a roofer.

While working on the roof in March 2011, claimant fell twenty-five feet to the ground and sustained serious injuries. Claimant sought medical and temporary total disability (TTD) benefits for his work-related injuries. Pinnacol, MDR’s insurer, denied the claim because MDR’s policy had lapsed for failure to pay premiums. Neither Alliance nor Hoff carried workers’ compensation insurance.

In October 2010, before starting the roofing job, Alliance obtained a certificate of insurance (certificate) from Pinnacol’s agent, Bradley Insurance Agency (Bradley), that verified that MDR had workers’ compensation insurance through Pinnacol.

On February 10, 2011, Pinnacol sent a certified letter to MDR advising the policy would be cancelled if payment of a past due premium was not received. The policy was canceled effective March 3, 2011 and letters to that effect were sent to MDR and Bradley.

Claimant was injured on March 10, 2011. On March 11, MDR’s owner went to Bradley’s office seeking to reinstate the policy. He was informed it could be reinstated if he paid the past due premium, paid a reinstatement fee, and signed a no-loss letter. The owner knew claimant had been injured, but he submitted the no-loss letter and did not inform Bradley of the accident.

Pinnacol reinstated the policy on March 11. MDR’s owner returned to Bradley’s office to report claimant’s injuries. Pinnacol contested the claim and cancelled the policy.

The administrative law judge (ALJ) determined that the owner’s failure to disclose claimant’s injuries when he signed the no-loss letter was a material misrepresentation, thus voiding the policy. The ALJ held MDR, Alliance, and Hoff jointly liable for claimant’s medical and TTD benefits. The Industrial Claim Appeals Office (Panel) agreed and affirmed.

Hoff appealed, arguing that Pinnacol was stopped from denying benefits to claimant. Pinnacol argued Hoff had no standing to challenge the cancellation of MDR’s policy.

The Court of Appeals held that Hoff had standing and agreed in part with her argument. Standing is established by Hoff demonstrating (1) she has sustained an injury in fact, and (2) the injury is to a legally protected interest. The first prong was clearly met. The liability imposed on Hoff by the ALJ and the Panel exceeded $300,000. The second prong was met because Hoff argued she was a beneficiary of specific promises that there was a workers’ compensation policy issued to MDR that was in force on the dates stated in the certificate. Her claim is independent of the Pinnacol policy and the Workers’ Compensation Act; it is one for promissory estoppel.

The Court found there were factual findings that need to be addressed by the ALJ regarding the estoppel argument. The case was remanded for a hearing, specifically to determine whether (1) Alliance or Hoff relied on the promises contained in the certificate, and (2) whether circumstances exist such that injustice can be avoided only by enforcement of the promises contained in the certificate.

Summary and full case available here, courtesy of The Colorado Lawyer.

Colorado Court of Appeals: Although Unusual, Forced Sale Appropriate Remedy to Continuing Trespass

The Colorado Court of Appeals issued its opinion in Graham v. Jules Investment, Inc. on Thursday, October 9, 2014.

Forced Sale in Encroachment Case.

Serenity Springs Wildlife Center is a ten-acre wildlife refuge in El Paso County that houses approximately 140 tigers, lions, and other exotic, threatened, or endangered animals. The refuge was once part of a 320-acre parcel of land. In 1997, a perimeter fence was erected enclosing the refuge and a deed was recorded severing it from the original parcel. In 1998, another deed severed a 36.5-acre parcel directly south from the refuge. A home was built on the severed parcel approximately 1,000 feet from the refuge.

Beginning in 2000, the property went through cycles of foreclosure and reacquisition. It was eventually sold to plaintiffs in 2010. In 2012, plaintiffs hired a surveyor, who told them that 1.7 acres (surrounded by a fence) was on plaintiffs’ parcel. The fence enclosed pens and lion and tiger dens. The footings were 16″-wide concrete slabs buried 2′ to 4′ in the ground and about nineteen lions and tigers lived on the 1.7 acres.

Plaintiffs sued defendants for trespass. The trial court held that the structures alone were not a trespass, but that the use and presence of the structures “deprive[d] . . . plaintiffs of the use of” 1.7 acres of their 36.5-acre parcel and “facilitated a regular, if not continuing trespass” of the refuge’s staff. The court held a hearing on the appropriate remedy. Defendants asked the court to allow them to purchase the 1.7 acres from plaintiffs, because removing the structures and rebuilding them would create a severe hardship. Plaintiffs asked for everything to be removed and the property restored to its “natural state.” The trial court held that under the “unique and unusual facts” of this case, it would order a forced sale of the 1.7 acres to defendants. It ordered conveyance in exchange for $5,870, which was the value of the 1.7 acres according to plaintiffs. The court also ordered payment of $1,737, which was the amount of the application fee for obtaining a waiver from the 35-acre requirement from El Paso County.

On appeal, plaintiffs argued it was error not to find that the structures themselves were a trespass and encroachment. The Court of Appeals did not decide this issue because the trial court had already determined there had been a trespass and had crafted a remedy. Regarding the remedy, the Court found that, though extraordinary, it is not unheard of to order a forced sale when the hardships weigh heavily on the defendant’s side. Therefore, it was not an abuse of discretion to order a sale under these unique circumstances. The judgment was affirmed.

Summary and full case available here, courtesy of The Colorado Lawyer.

Tenth Circuit: Unpublished Opinions, 10/15/2014

On Wednesday, October 15, 2014, the Tenth Circuit Court of Appeals issued one published opinion and three unpublished opinions.

Cottriel v. Jones

United States v. Gutierrez-Borjas

Gordon v. Berkebile

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