August 21, 2019

Archives for February 19, 2015

The Future of Law (Part Six): What’s Trending?

rhodesWe’re looking at trends in the law, and wondering out loud where they might be going. Since we’ve been talking about the democratization of knowledge, we’ll let Wikipedia tell us about trend analysis:

Trend Analysis is the practice of collecting information and attempting to spot a pattern, or trend, in the information. In some fields of study, the term “trend analysis” has more formally defined meanings.

The anonymous article writers (they’re from the U.K., I’d guess, because they spell “behaviour” with a “u”) tell us that some kinds of trend spotting are all about the numbers:

In project management trend analysis is a mathematical technique that uses historical results to predict future outcome. This is achieved by tracking variances in cost and schedule performance. In this context, it is a project management quality control tool.

In statistics, trend analysis often refers to techniques for extracting an underlying pattern of behaviour in a time series which would otherwise be partly or nearly completely hidden by noise. A simple description of these techniques is trend estimation, which can be undertaken within a formal regression analysis.

We learned regression analysis in the MBA program. I used it for years in my practice. It told me our revenues were somewhat seasonal. I might have figured that out some other way…

And then there’s Investopedia’s definition of trend analysis, which is a cousin to project management. Both try to predict the future by what happened in the past — driving forward by looking in the rearview mirror. Good luck with that.

Finally, Wikipedia sort of gives up and says

Today, trend analysis often refers to the science of studying changes in social patterns, including fashion, technology and consumer behavior.

That’s more like what we’re doing in this series, although I wouldn’t call it “science.” Art on a good day; guesswork any other.

Finally, here’s a trend analysis term I’d never heard until Wikipedia told me about it: coolhunting. That sounds like those messages I get online: See what’s trending on Facebook! See what’s trending on Twitter! Usually it’s some celebrity’s off-camera or off-field drama. I always wonder if I’m supposed to care.

The point is, someone cares about all of this. And if that someone cares enough to jump into a trend, and enough other people do the same, then we’ll all need to care, because the trend just moved from outliers to early adopters to mainstream. At that point, we’re all going along for the ride, like it or not.

Trends aren’t destinations, they’re movements of human energy. As soon as people start engaging with the trend, they affect where it’s going — shaping, redirecting, resisting, thwarting, or bulldozing it through. Trends are collective; we’re not the only ones steering the ship. If we jump onboard, there’s no assurance we’ll end up anywhere we think.

In the coming installments of this series, we’ll continue to look at changes in “social patterns, including fashion, technology and consumer behavior” (well, not fashion) that are affecting the law, and make predictions about them. Think of these not as possible outcomes, but as energies. Some will accelerate in size, speed, and impact — those we’ll need to reckon with. Others will fade away — like all that momentary coolness on Facebook and Twitter. Along the way, some of us might want to dive in and see if we can shape some of these trends the way we’d like.

Kind of like the rainstorm game I used to play as a kid, damming up water pouring along the gutter.

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: FTCA Claims Subject to Jurisdictional Time Limitations

The Tenth Circuit Court of Appeals issued its opinion in Barnes v. United States on Wednesday, January 21, 2015.

Larry Barnes was indicted in Oklahoma federal court for two crimes related to possession and distribution of methamphetamine. He was convicted and sentenced to two concurrent 66-month sentences. Barnes appealed. While his appeal was pending, the government acquired evidence that testimony of an ATF agent, a Tulsa police officer, and a confidential informant had been fabricated, and asked the court to vacate Barnes’ conviction and immediately release him from prison. The court granted that motion on July 2, 2009.

Seeking redress, Barnes filed administrative tort claims with the BATF on May 20, 2010. Receiving no response from the BATF, Barnes filed a civil lawsuit in Oklahoma state court on May 13, 2011, which the government removed to federal court. On September 23, 2011, the BATF filed a motion to dismiss for lack of subject matter jurisdiction, arguing that since the FTCA vests exclusive jurisdiction over federal tort claims in the federal district court, and removal jurisdiction requires a colorable state court claim, and plaintiffs had no jurisdiction in state court, the federal court therefore lacked jurisdiction as well. On October 25, 2011, while its motion to dismiss was pending, the BATF notified Barnes via certified mail of its formal denial of the administrative claims. The letter specifically advised that any appeal must be filed within six months of the date of  mailing of the letter, or by April 25, 2011.

On March 23, 2012, the federal district court granted the BATF’s motion to dismiss, and dismissed the case without prejudice. On August 22, 2012, Barnes filed a second lawsuit in federal district court. The BATF again moved to dismiss, this time for lack of jurisdiction under F.R.C.P. 12(b)(1) due to the lawsuit being time-barred. The district court granted the motion to dismiss and Barnes appealed.

The Tenth Circuit analyzed the provisions of 28 U.S.C. § 2675(a) and 28 U.S.C. § 2401(b), and found the two sections acted like “book-ends” for the time limit to file an FTCA claim. Barnes argued that his second lawsuit was timely because he was filing under § 2675(a)’s “deemed denial” provision, but the Tenth Circuit found that the BATF’s October 25, 2011 letter explicitly triggered § 2401(b)’s six-month limitations period. The Tenth Circuit found that the court lacked jurisdiction due to the time-bar.

The Tenth Circuit also analyzed Supreme Court precedent in Irwin v. Dep’t of Veterans Affairs, 498 U.S. 89 (1990), regarding jurisdictional bars and equitable estoppel. After a lengthy analysis, the Tenth Circuit concluded it was bound by previous circuit precedent to apply a jurisdictional bar to FTCA claims. Even analyzing Barnes’ claims under equitable estoppel principles, though, the Tenth Circuit still found no relief for Barnes, because he could not show “affirmative misconduct” by the BATF.

The Tenth Circuit found that the district court correctly dismissed the claims, but incorrectly did so with prejudice. Claims subject to a jurisdictional bar are properly dismissed without prejudice. The Tenth Circuit affirmed the judgment of the district court but remanded for correction of the dismissal as without prejudice.

Tenth Circuit: Fourth Amendment Does Not Require Judge’s Signature on Search Warrant

The Tenth Circuit Court of Appeals issued its opinion in United States v. Cruz on Monday, December 22, 2014.

Raul Cruz was convicted by a jury of knowingly and intentionally possessing methamphetamine with intent to distribute and sentenced to 63 months’ imprisonment. His conviction and sentence were affirmed on direct appeal. Cruz subsequently filed a motion to vacate, set aside, or correct his sentence, alleging his trial counsel was ineffective for failing to move to suppress evidence uncovered during the search of his residence pursuant to an unsigned search warrant. The district court denied relief on this assertion, and Cruz appealed.

The Tenth Circuit found, upon examination of the record, that the affidavit and warrant had been presented to a New Mexico district judge on March 26th, 2010. The judge signed the signature lines on the affidavit but neglected to sign the warrant at that time. Officers executed the warrant on March 29, 2010, and found methamphetamine, horse steroids, cash, and false identification. Officers found no evidence of drug use in the home or by Cruz. Cruz admitted to possession of the drugs but not intent to distribute. Approximately a month later, the judge signed the warrant, dated it March 26, 2010, and wrote “Nunc Pro Tunc on this April 23, 2010″ below the date line.

Cruz asserted that his counsel should have moved to suppress the evidence seized during the search of his residence, as well as his subsequent statements to police about the fruits of the search, because the unsigned warrant was not “issued” by a judge. Cruz claims that such motion would have been meritorious and would ultimately have led either to dismissal of the charges against him or his acquittal at trial. The Tenth Circuit disagreed, finding instead that nothing in the text of the Fourth Amendment conditions the validity of a warrant on its being signed. The First Circuit recently dealt with surprisingly similar facts and rejected the defendant’s argument, concluding that nothing in the Fourth Amendment required the judge who made the probable cause determination to also sign the warrant. The Tenth Circuit exhaustingly examined the meaning of the term “issue” under the Fourth Amendment, and found no reason to impose conditions on a validity of a warrant that were not set forth by the Fourth Amendment itself. The Tenth Circuit therefore concluded that there was no support for an inference that Cruz’s counsel’s motion to suppress would have been meritorious, and found no deficient performance of his counsel.

The district court’s judgment was affirmed.

Tenth Circuit: Unpublished Opinions, 2/18/2015

On Wednesday, February 18, 2015, the Tenth Circuit Court of Appeals issued one published opinion and four unpublished opinions.

Fidelity & Guaranty Life Ins. Co. v. Litchfield

Morales-Pantoja v. Holder

United States v. Mangum

Burrell v. Colvin

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