August 23, 2019

Archives for June 25, 2015

The Future of Law (Part 24): The Future Couldn’t Wait Finale

rhodesQuestion: What do mindfulness and meditation, hackers, crowdfunding, a law school offering masters degrees for non-lawyers, and techno-speak all have in common?

Answer #1: They’re all the future of law.

Answer #2: And that future is already here.

Mindfulness and Meditation must be all the rage when The Wall Street Journal features “Lawyers Go Zen, With Few Objections.” Check this trend out for yourself next week at the Better Lawyering Through Mindfulness Workshop with bankruptcy lawyer Jeena Cho, who’s quoted in the WSJ and is on a national tour promoting her book The Anxious Lawyer: An 8-Week Guide to a Happier, Saner Law Practice Using Meditation.

Hacker Law. Legalhackers.org proclaims, “We are explorers. We are doers. We are Legal Hackers.” Legal hacking, it says, is “a global movement of lawyers, policymakers, technologists, and academics who . . . spot issues and opportunities where technology can improve and inform the practice of law.” Here’s how one legal hacker pursues justice. And, in the interests of equal time, here’s a skeptic’s take on the topic.

Crowdfunding Lawsuits. It’s not just about raising money to hire a lawyer, it’s about equal justice for all. CrowdJustice is on a mission to “make justice accessible.” “Sometimes petitions are not enough,” its website declares, “The law should be available to everyone, big and small. CrowdJustice gives you the tools to raise funds, mobilise your community and publicise your issue.” (Yes, they’re British.) LexShares is “revolutionizing access to the justice system” while giving you the chance to do well by doing good: you can “earn a return from litigation finance” by taking a piece of the judgment/settlement.

Legal Mastery for Non-Lawyers. This Los Angeles Times article from last month describes a new masters degree program:

“Everyday business and regulatory transactions are becoming increasingly complex,” said Sean M. Scott, senior associate dean at Loyola Law School, Los Angeles. “That is particularly true in Los Angeles, where the areas of technology, entertainment, healthcare and policing face new legal challenges.”

The new Master of Science in Legal Studies (MLS) is designed for those who want to improve their legal fluency in areas related to industry regulations, compliance, deal making and more without committing to three or four years of law school. “The goal is to provide legal literacy,” Scott said.

“Loyola is uniquely poised to pivot its JD offerings to a new audience because of its nimble culture. Students may design their own program, pursuing a course of study such as healthcare law or fashion law with classes selected from a wide array of law school course offerings.”

Pivoting and nimbleness are key entrepreneurial concepts, and Loyola takes them to heart: i.e., students can benefit from the kind of narrow mylaw.com focus they’ll be able to give their business clients of choice. And the best part is, they’ll learn without suffering the brain-numbing stresses of law school.

Techno-Speak:

Our technology infrastructure . . . features multi-homed, fully redundant connectivity and power management controls, providing superior physical and electronic security for your data. Our scalable compute power, architected by industry technology experts, is built on high-performance, high-availability systems. Fully redundant servers, enterprise-class storage, and market-leading infrastructure monitoring and management solutions ensure the integrity, security, and responsiveness of your data.

Um… that’s a good thing, right?

That bit of garble is from this ediscovery company’s website. Let new lawyers learn the litigation ropes by grinding through discovery? No. Call in the data pros instead. They have an office right here in Denver, as some of you know already.

Okay, we get the point: anything we can possibly imagine about the future of law is already happening. Can we move on? Yes, of course. Our next series will take a fresh look at the culture of law.

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.

Judge Richard Gabriel Appointed to Colorado Supreme Court

GabrielOn Tuesday, June 23, 2015, Governor Hickenlooper announced his appointment of current Colorado Court of Appeals Judge Richard L. Gabriel to the Colorado Supreme Court. Judge Gabriel’s appointment is effective September 1, 2015, following the August 31 retirement of Justice Gregory Hobbs.

Judge Gabriel was appointed to the Colorado Court of Appeals in 2008. Prior to his appointment, Judge Gabriel was a long-time partner with Holme Roberts & Owen LLP (now, Bryan Cave LLP) in Denver, where his practice focused on commercial, intellectual property, probate, and products liability litigation, including appeals, and where he headed the firm’s intellectual property practice group. While in practice, Judge Gabriel also served as the City Prosecutor for the City of Lafayette, Colorado, where he tried some 200 cases, and he devoted substantial time to pro bono and community efforts, including work for the Rocky Mountain Children’s Law Center and the ACLU, representation of an Oklahoma death row inmate, and service on many nonprofit boards. He has received numerous awards for his service to the community, including the Denver Bar Association’s Award of Merit, a Rocky Mountain Children’s Law Center Champions for Children award, and the Richard Marden Davis Award, which is presented annually by the Denver Bar Foundation and the law firm of Davis Graham & Stubbs LLP to a lawyer under the age of forty who combines excellence in the practice of law and creative community leadership.

Judge Gabriel is a member of the state bars of New York and Colorado, the bars of numerous federal courts, including the United States Supreme Court, and the American, Colorado, New York, and Denver Bar Associations, where he serves on various committees, including the Colorado Bar Association’s Board of Governors and Judicial Liaison Committee, the Colorado and Denver Bar Associations’ Joint Professionalism Coordinating Council, and the Denver Bar Association’s Board of Trustees. Judge Gabriel is also a member of the Chief Justice’s Commission on Professional Development and chair of that organization’s Professionalism Working Group; he remains active on the board of the Colorado Judicial Institute, which he previously chaired; he currently serves on the executive council of the Minoru Yasui Inn of Court; he is a member of the executive committee of and a frequent speaker for the Our Courts program; and he writes and speaks frequently on matters relating to the judiciary, trial and appellate practice, and professionalism.

Judge Gabriel received his B.A. in American Studies from Yale University in 1984 and his J.D. from the University of Pennsylvania School of Law in 1987. In his spare time, Judge Gabriel plays the trumpet professionally with, among other groups, the Colorado Wind Ensemble and the Flagstaff Brass Quintet.

 

Colorado Court of Appeals: CORA Exception for Prosecuting Attorney Does Not Apply to Land Use Violation

The Colorado Court of Appeals issued its opinion in Shook v. Pitkin County Board of County Commissioners on Thursday, June 18, 2015.

Colorado Open Records Act—Investigatory Records Exception.

In August 2012, the Pitkin County Attorney’s Office received a citizen complaint regarding a potential code violation of plaintiff Shook’s property. The complaint was investigated and a violation notice for failure to obtain a necessary construction permit was issued. Shook cured the violation by obtaining a permit.

Several months later, Shook submitted a Colorado Open Records Act (CORA) request to the county attorney (custodian), seeking access to records related to the violation. The custodian provided certain documents but denied access to the original citizen complaint and the investigating officer’s handwritten notes.

Shook then filed this action, seeking a declaratory judgment that the custodian violated CORA by withholding the records, an order directing the custodian to disclose the records, and attorney fees and costs. The district court held that the custodian properly denied access to the records under CORA’s investigatory records exception, CRS § 24-72-204(2)(a)(I).

The investigatory records exception allows a custodian to withhold records if (1) the records relate to investigations conducted by a sheriff, prosecuting attorney, or police department, or are contained in investigatory files compiled for criminal law enforcement purposes; and (2) disclosure would be contrary to the public interest. Here, the record did not support the finding that the records related to an investigation by a prosecuting attorney. Such an attorney refers to one prosecuting a criminal matter, and this was not a criminal prosecution. The order was reversed for failure to meet the first prong.

CRS § 24-72-204(5) requires the court to award costs and reasonable attorney fees to any person who applies for and receives an order requiring a custodian to permit inspection of public records. The case was remanded with directions to order the custodian to allow Shook to inspect the records and, upon Shook’s application, assess and award reasonable court costs and attorney fees in her favor.

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

Colorado Court of Appeals: Proof of “Case Within a Case” Not Required in All Legal Malpractice Actions

The Colorado Court of Appeals issued its opinion in Boulders at Escalante LLC v. Otten Johnson Robinson Neff & Ragonetti PC on Thursday, June 18, 2015.

Legal Malpractice—Negligence—Statute of Limitations —Legal or Proximate Causation—Case Within a Case.

Plaintiff is a real estate development company formed to develop townhomes in a subdivision in Durango. Defendant is a law firm that was hired to represent plaintiff in a lawsuit against it by its general contractor to foreclose the contractor’s mechanic’s lien. Defendant filed several compulsory counterclaims on behalf of plaintiff for breach of contract and negligence. Plaintiff was concerned the contractor would not be able to pay a judgment if plaintiff succeeded on the counterclaims and asked defendant to review the insurance policies it had obtained for the project to determine whether the policies would pay a judgment against the contractor.

In 2006, defendant told plaintiff there was $2 to $4 million of coverage to pay a judgment against the contractor. In 2009, after plaintiff had obtained new representation, plaintiff learned that the policies contained an exclusion precluding payment to plaintiff if it succeeded on its claims against the contractor. Plaintiff and the contractor eventually settled, dismissing the claims against each other with prejudice. No payments were made by either party.

In 2011, plaintiff filed this action, asserting defendant was negligent in incorrectly advising regarding the insurance coverage, leading to extensive losses, including legal fees and expenses in continuing the litigation. The jury found defendant was negligent and its negligence caused 82.5% of the damages suffered by plaintiff. Judgment entered for approximately $2.7 million, plus pre- and post-judgment interest.

On appeal, defendant argued the claim was barred by the two-year statute of limitations set forth in CRS § 13-80-102. Defendant argued that plaintiff’s claim accrued no later than February 2009, when plaintiff learned defendant’s advice regarding insurance coverage might be wrong, and the action wasn’t filed until April 1, 2011. The Court of Appeals disagreed. A cause of action for negligence accrues on the date both the injury and its cause are known or should have been known to the plaintiff by the exercise of reasonable diligence. Under the circumstances here, the question of when plaintiff knew or should have known that the advice was incorrect and that it was injured by that advice was properly a question resolved by the jury.

Defendant argued that in a legal malpractice action based on negligence, the plaintiff must prove a case within a case; namely, that the claim underlying the malpractice action would have been successful but for the attorney’s negligence. The Court disagreed. Here, the claimed injury does not relate to the outcome of the underlying matter, and therefore plaintiff did not need to prove a case within a case.

Defendant challenged whether its negligence caused plaintiff’s damages. The Court determined that the evidence was sufficient to establish that plaintiff proved its malpractice claim for damages based on the legal expenses it incurred because of defendant’s incorrect advice. But for this advice, plaintiff would not have continued incurring legal expenses in an attempt to prove its counterclaims. However, plaintiff should not have recovered damages based on the business losses it sustained. As a matter of law, defendant’s advice regarding the insurance coverage was not the legal, or proximate, cause of plaintiff’s claimed business losses. Although defendant could have reasonably foreseen that plaintiff would make business decisions based on defendant’s advice, the actual harm plaintiff suffered because of those business decisions was not within the scope of the risk created by defendant’s negligence. The case was remanded for a new trial, limited to determining the amount of damages plaintiff incurred in continuing to pursue its counterclaims against the contractor after receiving incorrect advice from plaintiff.

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

Colorado Court of Appeals: Settlement Agreement Not “Payment” and Therefore Does Not Toll Statute of Limitations

The Colorado Court of Appeals issued its opinion in Stoesz v. State Farm Mutual Automobile Insurance Co. on Thursday, June 18, 2015.

Underinsured Motorist Benefits—Statute of Limitations—Meaning of “Payment”—Summary Judgment.

Plaintiff Stoesz, an insured of defendant (State Farm), was injured when an underinsured motorist rear-ended her car. Three days before the statutorily required three-year limitations period expired, Stoesz sent an e-mail to the underinsured motorist’s liability insurer, Progressive Insurance Company (Progressive), confirming a policy limits settlement. Shortly after the limitations period had ended, State Farm approved the settlement at Stoesz’s request. Within two years of receiving the settlement payment from Progressive, Stoesz commenced this action to recover underinsured motorist benefits from State Farm. The trial court entered summary judgment against Stoesz on the basis that this settlement agreement did not constitute payment that would have extended the limitations period for an additional two years. The Court of Appeals affirmed.

On appeal, State Farm argued that, pursuant to CRS § 13-80-107.5(1)(b), payment must be made during the three-year limitations period, which was not met here, and a tolling agreement between Progressive and Stoesz did not affect its rights. The Court agreed. Under the clear wording of the statute, an insured is allowed an additional two years only if the underlying bodily injury liability claim against the underinsured motorist has been preserved by commencing an action against the underinsured motorist or by payment of either the liability claim settlement or judgment. No action was commenced and no payment occurred within the limitations period. The summary judgment was affirmed.

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

Colorado Court of Appeals: ADA Not Defense to Termination of Parental Rights

The Colorado Court of Appeals issued its opinion in People in Interest of C.Z. on Thursday, June 18, 2015.

Dependency and Neglect—Termination of Parent–Child Legal Relationship—Americans with Disabilities Act.

The Weld County Department of Human Services (Department) filed a dependency and neglect petition after mother was unwilling to follow through with treatment to address her multiple mental health diagnoses. The Department also asserted father had been diagnosed with severe depression. The court granted the Department custody of the child.

The court then adjudicated the child dependent and neglected and approved a treatment plan for the parents. After receiving the psychological and parent–child interactional evaluations, the Department moved to terminate the parents’ parental rights, asserting that no appropriate treatment plan could be devised to address their unfitness. Following a contested hearing, the court terminated the parent–child legal relationship.

On appeal, mother and father argued that CRS § 19-3-604(1)(b)(I) conflicts with the Americans with Disabilities Act (ADA) because it allows the court to terminate parental rights of disabled parents without requiring the Department to provide them the rehabilitative services that other parents receive. The Court first addressed the Department’s assertion that the parents’ contention should be summarily rejected because the ADA is not a defense to termination of parental rights. Title II of the ADA does not limit the court’s authority to terminate a disabled parent’s rights when the parent is unable to meet his or her child’s needs. However, it does apply to the provision of assessments, treatment, and other services that a department provides to parents through a dependency and neglect proceeding before a termination hearing. Accordingly, the issue in this case is whether CRS § 19-3-604(1)(b)(I) is preempted by the ADA.

The type of preemption at issue here was conflict preemption, which voids a state statute that conflicts with a valid federal law. A conflict is found when compliance with both federal and state regulations is a physical impossibility or when the state law stands as an obstacle to the accomplishment and full execution of the purposes and objectives of federal law.

CRS § 19-3-604(1)(b)(I) permits termination of parental rights of mentally impaired parents without requiring the Department to provide them treatment plans. However, the Court held this does not conflict with the ADA’s requirement that a public entity make reasonable accommodations for qualified individuals with disabilities. If rehabilitative services can be offered to address a parent’s mental impairment so that he or she can meet the child’s needs within a reasonable time, then termination is not authorized under CRS § 19-3-604(1)(b)(I). A finding that no treatment plan can be devised to address a parent’s unfitness caused by mental impairment is the equivalent of a determination that no reasonable accommodations can be made to account for the parent’s disability under the ADA.

In determining whether reasonable accommodations can be made to address the parent’s disability under the ADA, the court’s paramount concern is the child’s health and safety. The ADA does not protect an individual who poses a safety risk to others. The Court concluded that the trial court’s findings here satisfy the ADA requirement that no reasonable accommodations could be made to enable mother and father to participate in an appropriate treatment plan and rehabilitative services.

Father also argued the termination of his parental rights solely on the basis of his mental disability violated his right to equal protection under the Fourteenth Amendment. The Court disagreed. Parents who are unable to meet their children’s needs within a reasonable time, whether because of mental impairment or another statutorily enumerated reason, are not similarly situated to parents who have the ability to become fit within a reasonable time. The judgment was affirmed.

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

Tenth Circuit: Unpublished Opinions, 6/24/2015

On Wednesday, June 24, 2015, the Tenth Circuit Court of Appeals issued one published opinion and five unpublished opinions.

King v. Hill

Armelin v. Donahoe

Cunningham v. City of Albuquerque, New Mexico

United States v. Ramirez-Saucedo

Valderrama-Valdez v. Lynch

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