August 23, 2019

Archives for June 11, 2015

The Future of Law (Part 22): The Future Couldn’t Wait II

rhodesLast week I reported a couple “the future is already here” developments, and said I would tell you a couple more this week. But one of them deserves its own post.

To set the context, this is from Law by Algorithm, earlier in this series:

Google customizes the news you see. Amazon suggests if you like this, you might like that. Your cellphone carrier, bank, and pretty much everybody else you deal with on a regular basis gives you the option to customize your own account page.

  • The new commoditized/democratized purveyors of legal products will also give this option to consumers. The days of “” are upon us.

Welcome to law by algorithm: Artificial Intelligence at work, serving up the customized law you need personally and for your work and business. And you don’t have to go looking for it — it will come to you automatically, based on your preference settings and past choices.

And this is from The New Legal Experts (2):

The world of commoditized law dispenses legal advice not by lawyers in individual consultations with clients, but instead through IT distribution channels, to a wider market of similarly situated consumers. Legal content is subsumed into the greater context in which the advice is pertinent, so that the consumer (no longer a “client”) gets comprehensive, multidisciplinary advice in one stop shopping, without the need to separately consult a lawyer and other relevant professionals.

Expert lawyers do this already, dispensing advice in the context of one-to-one client relationships. The legal experts of the future will do this on a wider scale, creating more broadly applicable IT products embedded with legal advice.

  • The creators of this new kind of legal advice will be much in demand in the new world of law.

Against this background, meet Catherine Hammack — a “new legal expert” and founder of Jurispect, whose website greets you with these slogans: “Regulatory Intelligence For Companies” and “Real-Time Regulatory Analytics for Better Business Decisions.” Ms. Hammack began her career by being in the right place at the right time (all of the following quotes are from this National Law Review article):

Catherine was present on two momentous occasions in U.S. financial history: as an intern at Arthur Anderson when Enron was indicted, and as a first-day associate at Bingham McCutchen the day Lehman Brothers filed for bankruptcy, and the start of the financial crisis in 2008.

She took that experience to the epicenter of commoditization:

Following her time at Bingham as a financial litigator, she transitioned to join Google’s Policy team, where her perspective on legal services dramatically changed.

At Google, she learned commoditization, multidisciplinary perspective, IT marketing, and distribution channels… all the things we’ve been talking about in this series. And then she turned it all into a Law by Algorithm company.

As Catherine elaborated in a post-conference interview: “There was a huge gap between the way law firms traditionally provide counsel and the way companies need information to make business decisions.” She was surrounded by engineers and data scientists who were analyzing vast amounts of data with cutting edge technology. Catherine became interested in adapting these technologies for managing risk in the legal and regulatory industries. Inspired by Google’s data-driven decision making policies, she founded Jurispect.

Jurispect’s team of seasoned experts in engineering, data science, product management, marketing, legal and compliance collaborated to develop the latest machine learning and semantic analysis technologies. These technologies are used to aggregate information across regulatory agencies, including sources such as policy statements and enforcement actions. Jurispect also analyzes information in relevant press releases, and coverage by both industry bodies and mainstream news. The most time-saving aspect of Jurispect are the results that coalesce into user-friendly reports to highlight the importance and relevance of the regulatory information to their company. Users can view this intelligence in the form of notifications, trends, and predictive analytics reports. Jurispect makes data analytics work for legal professionals so they spend less time searching, and more time on higher level competencies. As Catherine elaborated, “We believe that analytics are quickly becoming central to any technology solution, and the regulatory space is no exception.”

We’ll look at another new legal expert offering next time.

A collection of Kevin Rhodes’ Legal Connection blog posts for the past three years is now available in print from Amazon. Also available from Amazon as a Kindle, and as an ebook from Barnes & Noble, iTunes, Smashwords, and Scribd.

Finalists Selected for Colorado Supreme Court Vacancy

On Wednesday, June 10, 2015, the Colorado State Judicial Branch announced the selection of three nominees to fill a vacancy on the Colorado Supreme Court. The vacancy will be created by the retirement of Justice Gregory Hobbs, effective August 31, 2015. The three finalists are Richard L. Gabriel, Melissa Hart, and David S. Prince.

Richard Gabriel is currently a judge on the Colorado Court of Appeals, where he was appointed in 2008. Prior to his appointment, Judge Gabriel was a long-time partner with Holme Roberts & Owen LLP (now Bryan Cave HRO), where he focused his practice on commercial, intellectual property, probate, and products liability litigation, including appeals, and where he headed the firm’s intellectual property practice group. Judge Gabriel is very active in the Colorado legal community and graciously lends his time to numerous committees, CLE programs, and other professional groups. Judge Gabriel received his undergraduate degree from Yale University and his J.D. from the University of Pennsylvania School of Law. He plays the trumpet professionally in his spare time.

Melissa Hart has been an Associate Professor at University of Colorado Law School since 2001, where she teaches Employment Discrimination, Legal Ethics and Professionalism, and Civil Procedure. She became the Director of the Byron R. White Center for the Study of American Constitutional Law in 2010. Professor Hart is also active in the Colorado legal community, and she frequently presents at CLE programs, is active in several committees, and runs CU’s chapter of the Marshall-Brennan Constitutional Literacy Project, a national program that sends law school students into high schools to teach constitutional law. Professor Hart received her law degree from Harvard Law School.

David S. Prince currently serves as the Deputy Chief Judge of the Fourth Judicial District Court. He was appointed to the district court bench in April 2006. Prior to his appointment, Judge Prince was a litigation partner at Holland & Hart handling complex litigation, including probate and trust matters. Along with Judge Shakes and Judge Cisneros, Judge Prince founded “Judicially Speaking” to teach Colorado high school students the role of the courts. Judge Prince received his law degree from the University of Utah School of Law.

Under the Colorado Constitution, the governor has 15 days in which to select one of the nominees for appointment to the Colorado Supreme Court. Comments regarding the candidates may be sent to the governor at For more information about the nominees, click here.

Tenth Circuit: Bare Legal Title Is Not An Interest that Can Be Avoided in Bankruptcy

The Tenth Circuit Court of Appeals issued its opinion in In re Nguyen: Davis v. Pham on Monday, April 13, 2015.

In September 2007, Hoa Thi Pham purchased property in joint tenancy with her now common law husband, Noel Esplund, so that Pham had a two-thirds interest in the property and Esplund had a one-third interest. Pham then conveyed her interest to the couple’s children, Tung Nguyen and Lisa Dang (now Lisa Stirrat), as joint tenants with rights of survivorship. In May 2008, Nguyen transferred his interest to Esplund and Dang via quit claim deed for no compensation. In May 2009, Nguyen and his wife filed for Chapter 7 bankruptcy protection. The bankruptcy trustee, Carl Davis, filed a complaint in Bankruptcy Court, seeking to avoid the transfer from Nguyen under 11 U.S.C. § 548(a)(1)(B), alleging that Nguyen transferred his interest in the property less than two years before filing from bankruptcy, was insolvent at the time of the transfer, and received inadequate consideration for the transfer.

The Bankruptcy Court concluded Nguyen possessed only bare legal title to the property and his mother possessed equitable ownership of his one-third share, finding the transfer created a resulting trust under a Kansas statute that allows a trust to form when a payor provides consideration for a piece of property and then enters into an agreement with another “without fraudulent intent” to hold the property in trust. The Bankruptcy Court based its decision on the circumstances of the agreement, to which Pham and Nguyen testified at the evidentiary hearing, and concluded that bare legal title, when transferred for no consideration, is not an “interest in property” that may be avoided. The trustee appealed to the BAP, which affirmed the Bankruptcy Court’s decision.

The Tenth Circuit first noted that the parties do not dispute the correctness of the Bankruptcy Court’s determination that if Nguyen possessed solely “bare legal title” to the property, § 548(a)(1)(B) could not be used to avoid the transfer. The Tenth Circuit further found no dispute as to the Bankruptcy Court’s factual finding regarding the intent of the parties in the transfer. Therefore, the issue on appeal was whether such transfers are contrary to Kansas law.

Davis argued that a resulting trust is incompatible with a joint tenancy under Kansas law and Tenth Circuit precedent. The Tenth Circuit first found that the precedent on which Davis relied had been impliedly overruled by the Kansas Supreme Court. Analysis of the Kansas case law revealed that Kansas law does allow resulting trusts in joint tenancy situations. Because Davis did not challenge the Bankruptcy Court’s factual finding that Pham and Nguyen intended to create a resulting trust, or its conclusion that bare legal title is not an interest that can be avoided under § 548(a)(1)(B), the Tenth Circuit affirmed the findings of the Bankruptcy Court.

Tenth Circuit: Counsel Vigorously Defended Client so Potential Substance Abuse Immaterial

The Tenth Circuit Court of Appeals issued its opinion in Williams v. Trammell on Friday, April 6, 2015.

Two masked gunmen robbed a bank in Tulsa, Oklahoma, and during the robbery each gunman fired several shots, killing one person and seriously wounding two others. Substantial evidence linked Jeremy Williams and Alvin Jordan to the robbery and both were charged with first-degree murder (with alternate theories of malice and felony murder), armed bank robbery, and shooting with intent to kill. Williams alone went to trial.

Although there was some question about which gunman fired the shots that killed the bank teller, the state argued it did not matter if Williams was the gunman, because the felony murder charge did not depend on it, and he could still be found guilty of malice murder if he aided and abetted Jordan. The jury received instruction on this issue and ultimately found Williams guilty of both felony and malice murder. After weighing the mitigating and aggravating circumstances, the jury applied the death penalty. Williams appealed to the Oklahoma Court of Criminal Appeals (OCCA), which affirmed the sentence and convictions on direct appeal. Williams filed a petition for federal habeas relief in federal district court, which denied his claims without an evidentiary hearing but granted a certificate of appealability on two claims: (1) ineffective assistance of counsel, mostly during the guilt phase of trial, and (2) ineffective assistance of counsel at sentencing. The Tenth Circuit added two issues: (1) sufficiency of the evidence to support Williams’ malice murder conviction, and (2) cumulative error.

The Tenth Circuit first addressed the sufficiency of the evidence claim. Although no evidence proved Williams caused the death of the teller, Oklahoma law provides that anyone who aids or abets a crime can be charged as a principal. The Tenth Circuit found problems with the OCCA’s statement in a footnote about abandoning prior precedent that would omit a mens rea from aiding and abetting, but found that even if the OCCA purportedly abandoned its previous test for aiding and abetting, it used that test to affirm Williams’ convictions. After evaluating all applicable defenses, the Tenth Circuit found the evidence sufficient to support Williams’ malice murder conviction.

Next, the Tenth Circuit turned to the ineffective assistance of counsel claims. Although Williams had two attorneys, his claims were focused on the actions of the lead counsel during the guilt phase. Williams contends that lead counsel was under the influence of drugs and alcohol throughout the trial and “may have been” constructively absent. Williams raised the substance abuse argument after finding a listserv email authored by his attorney regarding the emotional toll of trying a death penalty case, in which the attorney said he used valium just to get through the day and only laid off the valium and alcohol for trial. The OCCA and district court both rejected the substance abuse arguments because both Williams’ lawyers fought valiantly on his behalf at trial and vigorously asserted professional efforts on his behalf. The Tenth Circuit, applying the Strickland standard, affirmed.

Turning to Williams’ specific claims about counsel’s deficient performance, the Tenth Circuit again evaluated each claim under the Strickland standard. Williams claimed his counsel should have objected to the introduction of evidence regarding a stolen watch with Williams’ DNA on it. The Tenth Circuit found that, considering the amount of other evidence of Williams’ thievery, which he used to explain the shoe print at the bank and the wad of cash at the apartment, there was no error in counsel’s failure to object to the watch evidence.

The Tenth Circuit found that allowing an officer to testify regarding the presumed origin of some scrapes on Williams’ shin was perhaps prejudicial, but any error in counsel’s failure to object to this testimony was outweighed by the sheer volume of evidence against Williams, and the Tenth Circuit could not say that but for the evidence Williams would have had a reasonable probability of acquittal. The Tenth Circuit dismissed most of Williams’ other claims because counsel’s conduct was reasonable.

Turning to Williams’ allegations of prosecutorial misconduct to which his counsel failed to object, the Tenth Circuit found the issue inadequately brief and therefore waived. The Tenth Circuit found no ineffective assistance of counsel that could have precluded acquittal.

As to Williams’ claims of ineffective assistance during the penalty phase, the Tenth Circuit found most of his claims inadequately exhausted. The Tenth Circuit could not consider on habeas appeal the claims Williams failed to raise on direct appeal. As to the partially exhausted claims, the Tenth Circuit found the chances that the OCCA might excuse his noncompliance with the ban on successive appeals “slim to none” and applied an anticipatory procedural bar. Turning to the OCCA’s treatment of Williams’ state court claims, in which it found counsel’s performance a reasonable exercise of trial strategy, the Tenth Circuit agreed. Even assuming deficient performance, the Tenth Circuit found Williams could not establish prejudice.

Finally, the Tenth Circuit evaluated Williams’ claims for cumulative error and found no reason to overturn the OCCA’s or district court’s opinions. The district court’s judgment was affirmed and the Tenth Circuit denied Williams the opportunity to expand his certificate of appealability.

Tenth Circuit: Unpublished Opinions, 6/10/2015

On Wednesday, June 10, 2015, the Tenth Circuit Court of Appeals issued one published opinion and two unpublished opinions.

United States v. Manning

Fay v. Maye

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