July 23, 2019

Archives for December 4, 2014

Saving Ourselves From Ourselves (Part Two): The Borg Isn’t a Personal Problem

“We are the Borg. You will be assimilated.
Lower your shields and surrender your ships.
We will add your biological and technological distinctiveness to our own.
Your culture will adapt to serve us.
Resistance is futile.”

rhodesTo recap from last time:

Ethos is “the characteristic spirit of a culture, era, or community, as manifested in its beliefs and aspirations.”

Like any institution, the law profession has its own ethos, manifested in expressed and unspoken beliefs and aspirations that guide our attitudes and behaviors.

What I’m calling the “Legal Borg” (c’mon, we gotta have a little fun every now and then!) is that portion of the law ethos that is responsible for the cognitive- and performance-impairing brain damage we learned about in the Killing Them Softly series, also for lawyers’ high rates of depression, anxiety disorders, substance abuse, and suicide.

The Legal Borg is the part of our professional ethos that’s out to get us. It’s stealthy and insidious. It avoids detection not by hiding but by convincing us we’re not seeing what we’re seeing. Or that what we’re seeing isn’t worth the bother.

Take lawyer career dissatisfaction, for example: it’s been on the rise for decades; we know that personally and anecdotally, also from numerous bar association polls and university research studies. Same thing with lawyer psychological distress. The Borg’s response? To convince us — individually and collectively — that these things are a personal problem. Some people just can’t handle the stress. Too bad for them; the rest of us have work to do. If you need help, get it, it’s out there. In the meantime, we don’t like thinking or talking about it, so don’t ask, don’t tell.

Further, if we dare question whether we’re okay with that, the Borg isolates us, labels us aberrant. For example, work-life balance initiatives are all over the legal profession, in bar association initiatives such as this one through the CBA (also summarized in The Colorado Lawyer archives back in 2007 — I wonder whatever happened to it?) and in law firms such as this one (chosen at random — there were too many). Statistically, these initiatives have been largely populated by women, although that is changing. So what does the Borg do? It declares that this is primarily a “women’s issue,” or perhaps a “parents issue,” and creates “alternative” career paths for these outliers. “We’ll accommodate them, but we all know that’s not where the real action is.” So says the Borg.

As for law firms with wellness programs, that’s a California or Europe thing. Not in our house! Besides, you need to be careful with those programs — you can get in trouble if you get carried away.

And so it goes. That’s the Legal Borg working overtime to promote the perception that for everybody but an irrelevant, dissenting few, things in the profession are as they have always been, and we’re all better off that way.

It’s a strategy that’s worked for a long time, but there are signs everyday that that the Borg’s grip is weakening — enough to make you wonder if the tipping point may have already been reached. We looked at one of those signs — an ethical initiative in Ohio — last time. Consider also this description of another Ohio initiative (convened in Columbus the day after I was recently there — darn!): a confab sponsored by the Supreme Court of Ohio Commission on Professionalism on “Preparing the Leaders of Tomorrow’s Changing Legal Profession.”

That title may be misleading. We may not be talking about “tomorrow” anymore. The future may already be here.

More on that coming up.

Kevin 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 exiting the law practice appeared in an article in the August 2014 issue of The Colorado Lawyer. His free ebook, Life Beyond Reason: A Memoir of Mania, chronicles his misadventures in leaving the law, and the lessons he learned about personal growth and transformation, which are the foundation of much of what he writes about here.

A collection of Kevin’s blog posts, Enlightenment, Apocalypse, and Other States of Mind, is now available as an ebook. Click the book title to sample and download it from the distributor’s webpage. It’s also available on from Barnes & Noble, iTunes, Amazon, and Scribd. The collection includes Forewords from Debra Austin, author of the Killing Them Softly law journal article which has been featured here, and from Ron Sandgrund, author of The Colorado Lawyer article mentioned above.

You can email Kevin at kevin@rhodeslaw.com.

Tenth Circuit: Standing as Insurance Company’s Local Agent Not Enough to Prove Significant Defendant Requirement Under CAFA Removal Provision

The Tenth Circuit Court of Appeals issued its opinion in Woods v. Standard Insurance Co. on Monday, November 10, 2014.

Plaintiffs Brett Woods and Kathleen Valdes filed suit in New Mexico state court on behalf of themselves and a class of all others similarly situated, regarding premiums paid for insurance coverage for state employees who were not insured under the subject policies. Plaintiffs named three defendants: Standard Insurance Company, an Oregon company that agreed to provide the subject insurance coverage; the Risk Management Division of the New Mexico General Services Department (Division), the state agency that contracted with Standard and was responsible for administering benefits under the policies; and Martha Quintana, Standard’s customer service representative responsible for managing the Division’s account with Standard and providing customer service and account management to the Division and New Mexico state employees. Defendants moved to remove the action to federal district court pursuant to the provisions of the Class Action Fairness Act (CAFA), which allow removal of state class actions to federal court as long as minimal diversity is established and the amount in controversy exceeds $5 million. Plaintiffs objected to removal before a federal magistrate, claiming CAFA’s state action and local controversy provisions precluded removal. The magistrate remanded the case to state court, finding remand proper under the local controversy exception because Ms. Quintana was a local defendant from whom plaintiffs sought “significant relief.” The magistrate did not examine the amount in controversy to see if it met CAFA’s requirements. Defendants appealed the magistrate’s order of remand.

The Tenth Circuit first explained that Congress enacted CAFA to allow removal to federal court of certain class actions in which the class has more than 100 members, is minimally diverse, and the amount in controversy exceeds $5 million, in order to correct certain perceived abusive practices in state court by class plaintiffs. Exceptions to CAFA’s broad reach include cases in which primary defendants are states against which the district court may be foreclosed from ordering relief under the Eleventh Amendment, and also local controversies in which states have a strong interest in adjudicating disputes. Plaintiffs argued that because the Division is a primary defendant, CAFA’s exception applies. However, the Tenth Circuit disagreed, finding that the exclusion only applies where all primary defendants are states or state agencies. Because Standard is a primary defendant in this dispute, the CAFA exclusion does not apply. Plaintiffs also argue that Ms. Quintana is a significant local defendant. The Tenth Circuit examined whether Ms. Quintana’s conduct formed a significant basis for Plaintiffs’ claims, and whether Plaintiffs seek significant relief from her.

The Tenth Circuit noted that Ms. Quintana is only mentioned briefly in Plaintiffs’ 91-paragraph complaint, and found that Ms. Quintana’s standing as Standard’s only local agent was not enough to meet the significant defendant requirement. Plaintiffs do not allege it is part of Ms. Quintana’s job to collect of insurability, make coverage determinations, record who had purchased insurance coverage, or verify that employees were in fact receiving coverage, and their complaint does not suggest she ever collected or retained premiums, solicited employees to purchase insurance, enrolled state employees, or had any actual contact with Plaintiffs or other state employees. The sole basis of Plaintiffs’ complaint against Ms. Quintana is that she failed to discover the Division’s and Standard’s allegedly illegal conduct. Therefore, the Tenth Circuit concluded she was not a significant defendant and reversed the magistrate judge’s decision on this issue.

The Tenth Circuit found there was an actual dispute as to whether the amount in controversy met or exceeded the $5 million minimum for removal under CAFA. Therefore, it remanded to the magistrate for determination of whether the amount in controversy exceeds $5 million. If it does, Defendants have established federal jurisdiction under CAFA, and if it does not, the action must be remanded to state court.

Tenth Circuit: Unpublished Opinions, 12/3/2014

On Wednesday, December 3, 2014, the Tenth Circuit Court of Appeals issued no published opinion and 11 unpublished opinions.

McClain v. Sheriff of Mayes County

United States v. Mencia-Hernandez

Lundahl v. Halabi

Hernandez v. Starmann

United States v. Shigemura

United States v. Kinchion

Liebel v. Aetna Life Insurance Co.

Lundahl v. The Home Depot, Inc.

Fuller v. Davis

Stiger v. Oliver

Angle v. Tafoya

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