July 20, 2019

Archives for December 11, 2014

Saving Ourselves From Ourselves (Part Three): Escaping the Borg

“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.”

rhodesIn his book Between Two Ages: The 21st Century and the Crisis of Meaning, futurist and Washington think-tanker Van Wishard says this:

America is at the vortex of a global cyclone of change so vast and deep that it is uprooting established institutions, altering centuries-old relationships, changing underlying mores and attitudes. . . . It is not simply change at the margins; it is change at the very core of life. Culture-smashing change.

The law is among the “established institutions” currently being “uprooted” by “culture-smashing change.” Consider, for example, the legal service ventures we looked at in Winds of Change (Part 4): Future Shock and the Business of Law and Wind of Change (Part 5): the New Lawyer Entrepreneurs. The magnitude of change these ventures indicate was unthinkable ten, even five years ago. Many of them are driven by young lawyers. No surprise there. More surprising is the legal profession’s apparent inability to recognize and explain the exodus of talent out of established practice models into new ones.

For example, a recent ABA compilation of Martindale-Hubbell data concluded that the legal profession is getting older, citing a rise in median age from 39 to 49 over the 25-year period ending in 2005. Indiana University law professor William Henderson offered several possible explanations for these findings at Legal Whiteboard, and concluded:

Arguably, the simplest explanation for these patterns is that it has gotten much harder over time to parlay a JD degree into paid employment as a licensed lawyer. So, faced with a saturated legal market, law school graduates have been pursuing careers outside of law.

So far so good, but we might further speculate that some of those “careers outside of law” are actually moves into the new legal service ventures, in which lawyers (and non-lawyers — which is a whole other issue) are providing services that have historically been considered practicing law. If so, then at least some licensed lawyers are still parlaying their law degrees into paid employment, but doing so in settings outside of the Martindale-Hubbell database, which for that 25 year period was focused on traditional law firm practice.

This is more than a data collection issue. Neurological research suggests that our observation and cognitive faculties are linked to culture, which explains why the old (traditional law practice culture) has trouble seeing the new (the new legal service ventures). Columbia University’s Norman Doidge, M.D. summarizes this research in his book The Brain That Changes Itself:

The idea that culture may change such fundamental brain activities as sight and perception is a radical one.

Culture can influence the development of perceptual learning because perception is not (as many assume) a passive, “bottom up” process that begins when energy in the outside world strikes the sense receptors, then passes signals to the “higher” perceptual centers in the brain.

The neuroscientists Manfred Fahle and Tomaso Poggio have shown experimentally that “higher” levels of perception affect how neuroplastic change in the “lower,” sensory parts of the brain develops.

In other words, our cultural point of view determines what we see and don’t see, and can literally blind us to new developments happening in our midst.

Thus it’s possible that the future of law has arrived right under the Borg’s unseeing gaze. The new legal services entrepreneurs certainly think so: their pitches offer both lawyers and consumers relief from the things about traditional law practice that drive them crazy. (Check out this one and this one.)

“Culture-smashing change” indeed.

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.

Colorado Supreme Court: Burden of Proof Does Not Shift Under Res Ipsa Loquitur

The Colorado Supreme Court issued its opinion in Chapman, M.D. v. Harner on Monday, December 8, 2014.

Allocation of the Burden of Proof Under Res Ipsa Loquitur.

In this case, the Supreme Court clarified the proper allocation of the burden of proof under the doctrine of res ipsa loquitur. Specifically, the Court resolved the tension between its fifty-six-year-old precedent in Weiss v. Axler, 137 Colo. 544, 559, 328 P.2d 88, 96-97 (1958), which held that the burden of proof shifts to the defendant once a plaintiff makes a prima facie showing of res ipsa loquitur, and the more recent adoption of CRE 301, which indicates that rebuttable presumptions such as res ipsa loquitur shift onto the defendant only the burden of production and not the burden of proof. After determining that this issue has remained unsettled since the adoption of CRE 301, the Court held that the burden of proof does not shift to the defendant under res ipsa loquitur. Accordingly, the Court reversed the court of appeals’ judgment.

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

Colorado Supreme Court: Forum Selection Clause Presents Question of Whether Jurisdiction is Reasonable Under Circumstances of Case

The Colorado Supreme Court issued its opinion in In re Nickerson v. Network Solutions, LLC on Monday, December 8, 2014.

CAR 21 Original Proceeding in Civil Case—Motion to Set Aside Default Judgment—Forum Selection Clause.

In this CAR 21 original proceeding, the Supreme Court held that the trial court erred in setting aside a default judgment as void for lack of jurisdiction due to a contractual forum selection clause purporting to divest Colorado courts of jurisdiction over the matter. A forum selection clause in a contract does not divest a court of personal or subject matter jurisdiction but instead presents the question of whether it is reasonable for the court to exercise its jurisdiction in the particular circumstances of the case. The Court also held that the trial court erred by failing to conduct an evidentiary hearing on damages before entering default judgment. The Court made this rule absolute and remanded the case to the trial court for further proceedings.

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

Colorado Supreme Court: Special Districts May Assign Right to Receive Fees to Private Party

The Colorado Supreme Court issued its opinion in SDI, Inc. v. Pivotal Parker Commercial, LLC on Monday, December 8, 2014.

Powers of Local Governments.

In this case, the Supreme Court held that the Special District Act, CRS §§ 32-1-101 to -1807, gives special districts the power to assign to private parties the right to receive revenue from development fees. The Court found that the power to assign revenue falls within the express power given to districts to “dispose of . . . real and personal property.” CRS § 32-1-1001(1)(f). It also concluded that under CRS § 32-1-1001(1)(n), the Act should be interpreted as empowering a district to act, not as a limitation on powers found elsewhere in the statute. The court of appeals therefore erred in finding that the power to “pledge” under CRS § 32-1-1001(1)(j)(I) necessarily restricts the power to assign. Accordingly, the Court reversed the court of appeals’ holding and remanded the case to that court for consideration of the other issues respondent raised on appeal, including whether petitioner was entitled to increase the fees.

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

Tenth Circuit: Unpublished Opinions, 12/10/2014

On Wednesday, December 10, 2014, the Tenth Circuit Court of Appeals issued no published opinion and four unpublished opinions.

United States v. Adams

Hartigan v. Utah Transit Authority

United States v. Rice

United States v. Grayson

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